October 2012, Volume 98, Issue 6|
Confronting Supreme Court Fact Finding
98 Va. L. Rev. 1255 (2012)
Supreme Court justices routinely answer factual questions about the world—such as whether violent video games have a harmful effect on child brain development or whether a partial birth abortion is ever medically necessary. The traditional view is that these findings are informed through the adversary system: by reviewing evidence on the record and briefs on appeal. Routinely, however, the justices also engage in what I call “in house” fact finding. They independently look beyond the briefs and record to answer general questions of fact, and they rely on their discoveries as authorities. To be sure, judges have always done this, and the Federal Rules of Evidence contain no rule restricting it. But times have changed. The world has recently undergone a massive revolution in the way it receives and evaluates information. No longer do justices need to trek to the library to look up factual questions. Instead they can access virtually infinite amounts of factual information at the click of a mouse.
This article discusses how that change in technology has and will affect the Court’s fact finding practice. It collects over 100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found “in house”—i.e. that cannot be found in any of the party briefs, amici briefs, or the joint record. These are not insignificant rarities: almost 60 percent of the most important Court opinions in the last ten years rely on in house research at least once. The article then examines the potential dangers of in house fact finding in the digital age—specifically the possibility of mistake, the systematic introduction of bias, and notice / legitimacy concerns. It concludes that these concerns require an update to our approach to Supreme Court fact finding. It then offers two independent and contrasting solutions: new procedural rules that restrict reliance on factual authorities found in house, or alterations to the adversary method to allow for more public participation.
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