51 Pages Posted: 27 Dec 2022 Last revised: 18 Jan 2023
Date Written: January 6, 2023
Appellate fact review in constitutional rights litigation has never been more important. Whether someone’s rights were violated often turns on what happened—matters of fact—and not solely matters of law. That makes it all the more striking that the U.S. Supreme Court has increasingly reversed rulings of lower courts based on factual disagreement, given that such fact-finding is typically entitled to significant appellate deference. Scholars and would-be reformers have noted the problems of appellate fact-finding, but have tended to assume that the Court itself has final say on the applicable standard of review—for example, invoking the doctrine of constitutional fact review, which permits de novo review of factual finding in some constitutional cases.
We offer a different approach: Congress’s Article III power over federal courts’ “appellate jurisdiction, both as to Law and Fact” and Article I power to “constitute” the inferior federal courts, gives it significant authority to regulate the manner of fact-finding in constitutional cases, including the deference due to trial-level fact-finding. We call this “fact-stripping,” as it shares some features with the more familiar concept of jurisdiction-stripping. Indeed, Congress has effectively already regulated the review of constitutional facts—with the Supreme Court’s approval—in important areas of law. For example, in federal habeas corpus, Congress has mandated more deference by restricting appellate factual review, while in some other areas of administrative adjudication (including immigration) it has required less factual deference (i.e., more review) than the constitutional floor would require.
How Congress should exercise this constitutional power, so long as adequate opportunities for Article III review of constitutional claims remain in place, is ultimately a question of how best to allocate power within the judiciary, and thus raises some of the same institutional competency issues that the Court itself has invoked when establishing standards of appellate review. These include the role of appellate courts in law development and establishing uniformity and the importance of robust fact-finding in constitutional cases. Congress, however, need not agree with where the Court has drawn those lines, and might want to re-allocate factfinding power to the trial courts. Of course, appellate courts wanting to maintain their power over fact-finding might resist such legislation in a variety of ways, including by designating more issues as “mixed” questions of law and fact subject to de novo review, or by labeling some facts as “legislative” (i.e., not adjudicative) and thus not entitled to deference. Our goal here is not to prescribe a particular form of fact-stripping legislation, but to suggest that congressional regulation of appellate constitutional fact-finding is one of many possible responses to an appellate judiciary that has in many constitutional cases arrogated fact-finding power to itself.
Keywords: fact-finding, appellate review, factual review, Article III, due process
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