Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis

Devins, Neal, Duke Law Journal

INTRODUCTION

Supreme Court decisionmaking treats the line separating law from fact as consequential, often outcome-determinative. Court decisions do not even hint at the possibility that the Court's choice of whether it should create fact-dependent standards of review or, alternatively, fact-insensitive rules is a by-product of exogenous variables, including the Justices' views on congressional factfinding. Rather, the Court speaks in platitudes about how "say[ing] what the law is" is at the core of Article III. In contrast, the power to find facts, while not irrelevant to the exercise of judicial authority,(1) is not considered central to the judicial function.(2) Indeed, pointing to Congress's "role of weighing conflicting evidence in the legislative process,"(3) the Court treats the separation of powers as demanding a de minimis judicial role in questioning the accuracy of such findings.(4)

Part I of this Essay challenges this longstanding assumption, arguing that the law-fact divide is a shibboleth, something that the Court invokes to justify a conclusion about whether it or Congress should settle an issue, not something with independent analytical force. Correspondingly, this Essay suggests that when employing fact-dependent reasoning, the Court is speaking more of its agreement with Congress on the merits than anything else.

Part II casts doubt on a related assumption, namely, that as a matter of comparative institutional competence, the Court is better at sorting out the law and legislators are better equipped to get the facts right. In particular, while Congress has superior factfinding capacities, it often lacks the institutional incentives to take factfinding seriously.

By calling attention to how problematic and difficult it is for the Court to navigate the law-fact divide, this Essay is a first step in redirecting attention to the real world problems of drawing sharp and discernible lines separating the judicial and legislative functions. Part III ventures beyond these positive claims and tackles the question of how the Supreme Court ought to take into account Congress's interest in getting the facts right. Through the use of case studies, Part III offers a preliminary assessment of the ways in which the Court can sort out whether Congress has the proper incentives to take factfinding seriously. In so doing, Part III also draws attention to a paradox in constitutional decisionmaking--the Court's employment of open-ended, fact-dependent standards often make it difficult for the Court to take a hard look at congressional factfinding. Specifically, because of limits on its own factfinding, the Court cannot disavow traditionalist assumptions (embraced in Court decisionmaking) about both Congress's comparative advantage in factfinding and Congress's authority, under the separation of powers, to sort out the facts underlying its handiwork. Consequently, by describing an issue as one of fact, not law, the Court, in effect, is saying that Congress is the branch best positioned to decide the matter.

This Essay aims at advancing not only a system of empirically informed constitutional jurisprudence(5) but also a system that allows Congress, when circumstances warrant, to play a decisive role in the shaping of constitutional values. In particular, rather than sort through the legitimacy of courts "making policy" through the application of fact-dependent balancing tests, this Essay is intended to push the Supreme Court to embrace standards of review that take into account the comparative institutional strengths and weaknesses of both Congress and the courts. Sometimes these standards will favor the government (when Congress is a reliable factfinder); sometimes these standards will limit governmental action (when, for example, congressional factfinding is little more than a recitation of special-interest preferences).(6)

By highlighting the contaminating impact of special interests on congressional factfinding, moreover, this Essay addresses one of the fundamental questions in constitutional law, that is, the need to check Congress from acting on behalf of special interests, to the exclusion of the public interest.(7) By recommending that the Supreme Court deploy standards of review that take Congress's interest in factfinding into account, this Essay calls for the Court to check Congress when the risk of special-interest capture seems especially significant.(8) More to the point, because of the difficulties of the Court second-guessing legislative factfinding, this Essay sends a cautionary note to Justices inclined to make use of fact-dependent standards in upholding congressional decisionmaking.(9)

I. THE ILLUSORY FACT-LAW DISTINCTION

Is the Court's characterization of an issue as being one of law or one of fact driven by a desire to reach a particular outcome? Alternatively, is the law-fact divide a by-product of the very real differences between the institutional authority and competence of the Court and Congress?(10) Answers to these questions lie in the opinions and institutional incentives of the Court.

To start, Supreme Court opinions suggest that the line separating law from facts, if not artificial, is indeterminate. Consider, for example, the Court's recent decisions in Dickerson v. United States (rejecting Congress's efforts to undo the Miranda warning)(11) and United States v. Morrison (invalidating the Violence Against Women Act).(12) In both cases, the Court sidestepped the question of whether the factual premises underlying Congress's handiwork were correct;(13) instead, the Court concluded that, as a matter of law, Congress's factual inquiry was beside the point.(14) The dissenting opinions in both Morrison and Dickerson, however, made use of quite different legal standards--standards by which congressional factfinding was anything but irrelevant.(15) Indeed, the Morrison dissent is replete both with approving references to "the mountain of data assembled by Congress" and paeans to "Congress, whose institutional capacity for gathering evidence and taking testimony far exceeds" that of the Court.(16)

Another example of this phenomenon is the rights-remedy distinction that the Court now utilizes in assessing Congress's power to enforce the Fourteenth Amendment. When overturning the Religious Freedom Restoration Act (RFRA), the Court, in City of Boerne v. Flores, drew a sharp line between Congress's power to "remed[y] constitutional violations" and the Court's power to set forth the meaning of a constitutional right and thereby to "say what the law is."(17) This standard, however, is indeterminate; when applying it, the Justices often disagree about whether Congress's action speaks to rights (so that factfinding is not particularly relevant) or remedies (where factfinding is often dispositive).(18) For instance, in rulings that Congress could not extend either age discrimination or disability rights protections to state workers, the Court divided five to four on whether these cases were about rights (law) or remedies (facts).(19)

Morrison, Dickerson, and Flores are hardly unusual. The Justices frequently squabble over the appropriate standard of review to apply and, with it, the types of facts (if any) that are relevant to their decisionmaking.(20) Whether characterizing a matter as one of law or fact is simply "a conclusion ... that one branch of government rather than another should make the decision in question,"(21) it is undoubtedly true that a Justice's views on the merits and her views on whether the case turns on law or facts are often one and the same. Justices sympathetic to the goals of a particular statute, if not Congress itself, typically see the issue before them as one of fact; Justices skeptical of Congress, in contrast, are more apt to see the issue as one of law.

This practice will likely continue. The Court is unlikely to depart from the traditionalist view that the separation of powers places the finding of social facts squarely within the realm of the lawmaking power.(22) Furthermore, lacking the power to appropriate funds or command the military, the Court understands that its decisions must garner public acceptance.(23) For these reasons, the Justices can ill afford to act as super-lawmakers, striking down legislation whenever their views of the facts vary from Congress's;(24) instead, the Justices are on firmer footing by grounding their decisions (especially those striking down acts of Congress) in legal interpretations. It is thus undoubtedly the case that unless and until the nation is convinced that the Supreme Court is a better factfinder than Congress, the Court places itself at peril by declaring that Congress got the facts, not the law, wrong. Where facts should come into play, as I have suggested above, is in the selection of standards of review.

For these very reasons, the Justices should act cautiously before embracing fact-dependent standards of review. These standards, by constraining the Court's power to second-guess legislative decisionmaking, give Congress the upper hand. For example, following its 1937 embrace of the fact-dependent "affecting commerce" standard, the Court regularly looked to legislative findings establishing a link between New Deal initiatives and interstate commerce.(25) As a result, the Court has been extremely deferential to Congress; it has only once cast doubt on legislative factfinding in its Commerce Clause decisionmaking.(26) In other words, by choosing a fact-dependent standard of review, the Court severely limited its ability to check Congress.

While the Court should carefully weigh the risks of adopting fact-dependent standards, it is unclear to what extent the Court's attitudes towards congressional factfinding affect the Justices' views of whether it should employ fact-dependent standards of review. No doubt, just as theories of interpretation, ideology, and fear of elected government reprisal temper the Court's decisionmaking, "perceptions about social facts regularly tip the balance between competing constitutional rights or affect the definition of legitimate state interests and individual rights."(27)

But in sorting out these social facts, does the Court pay close attention to the seriousness by which Congress finds facts? The Court, while making use of legislative findings in its decisions, does not demand that Congress find facts, hold hearings, or otherwise employ procedures designed to improve the quality of its factfinding.(28) At the same time, there is reason to doubt that the Court assumes Congress to be a reliable factfinder (so that judicial skepticism of legislative factfinding may affect the decision to characterize an issue as one of law, not fact). The Court, for example, may have seen the RFRA as little more than special-interest politics(29) and the Miranda override statute as "election year symbol[ism]."(30) In other words, skepticism of Congress's factfinding may have been a contributing factor in explaining why the Court in both City of Boerne and Dickerson depicted the issues before them as questions of law, not fact.(31)

If one values an empirically informed jurisprudence, congressional attitudes toward factfinding should figure prominently in the Justices' decision to treat a question as one of law or fact. How then should the Court sort out the quality of congressional factfinding? Should the Court look to legislative history--depicting an issue as one of fact when Congress makes findings of facts, holds hearings, etc.? Should it make use of a prophylactic rule--assuming either that Congress is institutionally superior to the courts in getting the facts right or, alternatively, that Congress is captured by special interests and, consequently, is an unreliable factfinder? Any attempt at answering these questions must begin with an analysis of the comparative strengths and weaknesses of judicial and congressional factfinding.

II. FACTFINDING IN CONGRESS AND THE COURTS

Judicial deference to legislative factfinding is premised on the mutually reinforcing beliefs that the lawmaking process is better suited to finding social facts(32) than is adjudication and that the Constitution leaves it to lawmakers, not judges, to make policy by finding social facts. By itself, however, this rationale is hardly convincing. After all, as Part I suggests, the law-fact distinction may be a judicial conceit--something used to prop up a conclusion about whether the Court or Congress should settle an issue. Indeed, as this part will show, it is hardly self-evident that the legislative process does a better job of uncovering social facts than does adjudication.

In sorting through whether lawmakers or courts are more apt to engage in accurate factfinding, this part will make a quick tour of the comparative strengths and weakness of the two branches, considering both institutional capacity and institutional incentives. The concern here is not so much resolving the question of which branch does a better job; rather, it is to suggest that the answer to this question is highly contextual--Congress does a better job when it has the incentive to get the facts right while the courts may do a better job when the litigants skillfully present conflicting social science data.(33)

A. The Traditionalist's Argument: Congress Can Do It; Courts Cannot

Congress has numerous advantages over the courts in pursuing information. Legislatures, as compared to courts, "have substantial staff, funds, time and procedures to devote to effective information gathering and sorting."(34) These assets are perhaps best employed in the committee system, which allows lawmaker experts to acquire extensive knowledge on questions of interest to them.(35) Armed with the power to subpoena witnesses and otherwise do what is "necessary and proper" to allow Congress to effectively act on its legislative powers, committees operate both as legislative "gatekeepers" and "policy incubators."(36) Unconstrained by the need to decide a particular case at a particular moment in time, moreover, legislative committees may conduct hearings over a number of months, even years, before acting. Furthermore, rather than rely on party arguments and amicus filings, committees may act affirmatively--using their subpoena power to call any and all witnesses who may assist Congress in sorting out the facts. If that is not enough, committees can also seek expert advice from any one of a number of legislative support services, including the Congressional Research Service and the General Accounting Office.(37)

More generally, Congress is not limited by rules against ex parte communications or other prohibitions on information gathering. Instead, members of Congress and the senior staff who advise them may inform themselves by speaking with each other, "lobbyists, [other] staff, friends and constituents, by [attending] fact-finding junkets, by reviewing past legislation or even by reading a novel or watching television."(38) Also, unlike the judiciary, "It]he greater number of members [of Congress] and their varied backgrounds and experience make it virtually certain that the typical legislature will command wider knowledge and keener appreciation of current social and economic conditions than will the typical court."(39) Correspondingly, the geographic diversity among lawmakers ensures that Congress will take regional differences into account when assessing the costs and benefits of proposed legislation. In these ways, Congress, a truly representative body, is better positioned to find facts than the federal judiciary, whose judges and advocates are trained in a single discipline and, for the most part, are otherwise stratified by class, ambition, and the like.(40)

Congress's unique ability to gather and assess information, while critically important, tells only part of the story. Congress need not decide a case once and forever by issuing a decision that constrains it in subsequent decisionmaking. "Unlike judges, legislators can simultaneously address a variety of issues, thus facilitating the development of public policy that reflects a fair balance of competing interests."(41) Even more significantly, Congress is not constrained by stare decisis. It can correct its mistakes in ways that the Court cannot. Specifically, Congress's legitimacy is not at all tied to whether it stands above the hurly burly of politics by adhering to precedent. Quite the contrary: Congress's legitimacy, as Frank Michelman describes it, is that the legislature is the "forum for identifying or defining [objectives], and acting towards those ends."(42)

Courts, as compared to lawmakers, are shackled by the temporal and reactive nature of litigation. Specifically, with judges and advocates relying on precedent-based legal arguments, courts simply cannot engage in thorough cost-benefit analysis. Courts are also hamstrung in that they decide cases at a moment in time, so that a changed understanding of the underlying facts can only be corrected through a reversal. Correspondingly, judges must operate around "real time" constraints; rather than risk a backlog of cases, judges must do the best they can with the information that they have.(43) For the Supreme Court, real-world limits on the number of cases it can review necessarily leave broad decisionmaking authority in the federal courts of appeal, courts that "are not national in their scope" and who may disagree over standards of review, the relevance of certain facts, and much more.(44)

Furthermore, notwithstanding amicus curiae filings, courts, including the Supreme Court, often rely on the arguments made by the parties before it.(45) Thus the Court, unlike Congress, is constrained by the parties' framing of the issues. Correspondingly, the Court may "anchor" its decisionmaking on its perception of whether the parties before it are sympathetic or not. Problems may arise, however, when different parties raising identical legal issues may appear more or less sympathetic and, as such, the Court's decision may well be tied to the accident of which plaintiff presents its case to the Court.(46)

Making matters worse, the Justices may engage in "motivated reasoning," that is, a desire to understand the facts through the lens of prevailing social norms.(47) Finally, the Justices may be animated, in part, by political ideology. As such, rather than try to get the facts right, the Justices may spin the facts to support a desired result.(48) And even if political ideology is not explicitly at play, courts are susceptible to interest group capture.(49)

B. Rethinking the Congressional Advantage

Congress undoubtedly has the capacity to find social facts, while the courts face important obstacles in attempting to engage in accurate factfinding.(50) Nevertheless, it is far from clear that Congress, in fact, will do a better job than the courts in this respect. Most critically, there is good reason to doubt whether Congress has the incentives to take factfinding seriously.

Public choice theory, for example, suggests that legislators are motivated solely by self-interest, not the public interest. In particular, legislators place their desire for reelection ahead of all else.(51) Accordingly, legislation is a commodity that lawmakers provide interest groups in exchange for campaign contributions, endorsements, and promises of economic support for the districts they represent. Under this view, lawmakers could not care less about getting the facts right--what matters is delivering the goods.(52)

Whatever one's opinion of public choice theory, it is certainly true that lawmakers are partisans and that congressional decisionmaking, including factfinding, is often about the pursuit of desired outcomes. One simple measure of this phenomenon is the role that party control plays in committee agenda-setting and factfinding. When the Republicans captured the Senate in 1981, for example, social conservatives, by gaining control of the Judiciary Committee,(53) were able to pursue their agenda with a vengeance, including the consideration of proposed human life legislation. Premised on a congressional finding that life begins at conception, this bill made its way through a Judiciary Committee subcommittee (including full-blown hearings and a subcommittee report).(54) Were the Democrats in charge of the Judiciary Committee, it is inconceivable that this bill would have been taken up at all, let alone made its way through subcommittee.(55)

The lesson here is that legislative choices, including factfinding, are driven by agenda-setters.(56) In particular, committee chairs can pack their committees with like-minded thinkers, can determine when and what the committee investigates, and can arrange hearings in ways that frustrate the search for the truth.(57) For example, committee staff may screen potential witnesses to ensure that they will say what the committee wants to hear.(58) Assuming that committee members actually attend the hearing, the questioning format typically does not lend itself to "extended exchanges between members and witnesses, analysis of different points of view, or in-depth probing of one witness's views by another."(59)

The quality of the legislative record may be compromised in yet another important way. When a factual record is assembled, "information from a variety of formal and informal sources--including lobbyists supporting or opposing legislation--can make its way into the record."(60) In part, lobbyists (as well as senior staffers) understand that courts sometimes look towards legislative history and, consequently, that it is useful to pad the legislative history in ways that support their objectives.(61) Ultimately, with fundraising, constituent service, and other demands, members of Congress cannot pursue knowledge for knowledge's sake. Rather, most members simply follow the lead of agenda-setters within their party.(62) And, while a conflict with either their interest group sponsors or voters may prompt a member to break ranks with party leaders, it is rarely the case that a member will risk party opprobrium simply because she views Congress's factfinding as substandard.

What then of Congress's power to modify its handiwork? Specifically, is Congress likely to find out if the factual premises of its enactments are wrong and, if so, is Congress likely to correct factfinding mistakes? Perhaps, but probably not. To start, Congress is a reactive institution and, as such, it is doubtful that members keep track of legislation, even legislation they sponsor.(63) Rather, when assessing the implementation of legislative programs, lawmakers make use of the "fire-alarm" approach, in which their attention is triggered by constituencies through "a system of rules, procedures, and informal practices that enable individual citizens and organized interest groups to examine ... decisions …

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Publication information: Article title: Congressional Factfinding and the Scope of Judicial Review: A Preliminary Analysis. Contributors: Devins, Neal - Author. Journal title: Duke Law Journal. Volume: 50. Issue: 5 Publication date: March 2001. Page number: 1169. © 2009 Duke University, School of Law. COPYRIGHT 2001 Gale Group.

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