When Facts Don't Matter

87 Pages Posted: 25 Aug 2017 Last revised: 17 Jan 2018

See all articles by Eric Berger

Eric Berger

University of Nebraska at Lincoln - College of Law

Date Written: January 2018


We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter.

This Article examines the Court’s penchant for brushing aside inconvenient facts. Using three prominent decisions as case studies, it argues that a majority of Justices too often rely on novel constitutional doctrine to dismiss congressional findings and other facts. This collective disdain for facts muddles constitutional law, aggrandizes the judiciary, and privileges ideology over evidence. Of course, the relevance of particular facts is ultimately a legal question, so the Court clearly enjoys the prerogative to determine which findings have constitutional salience. That said, the Court still owes Congress and the country a more careful explanation when it deems irrelevant the very facts that prompted legislative action in the first place.

Keywords: Constitutional Law, Supreme Court, Judicial Decision Making, Congressional Facts, Facial and As-Applied Challenges, Institutional Analysis, Judicial Deference

Suggested Citation

Berger, Eric, When Facts Don't Matter (January 2018). Brigham Young University Law Review, vol. 2017. Available at SSRN: https://ssrn.com/abstract=3025790

Eric Berger (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
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