I’m not sure what the point of ProPublica’s article on Supreme Court errors of fact in its findings is. That the Supreme Court makes errors? We knew that. That stare decisis should be abandoned? That sounds like a formula for societal chaos to me. That too many cases reach the Supreme Court? That seems obvious but the Supreme Court is hearing half as many cases now as it did a half century ago and the population has nearly tripled. That the present Supreme Court justices are more likely to make errors of fact for reasons of age? They don’t establish that. That the Supreme Court’s error rate is too high? They don’t establish that, either.
We must have laws. We must have rules. There must be some ultimate authority. The Supreme Court is that authority and it, too, is fallible.
If there is an error in findings of fact in a particular case, the responsibility lies with the trial court, not the Supreme Court. As a general rule, appellate courts do not engage in fact-finding and are not supposed to consider facts beyond those established in the record on appeal.
Addendum:
Also, if there are errors of fact in a brief that the Court subsequently relies upon I’m not sure what the solution is. Appellate Courts aren’t really set up to do fact-checking of briefs filed by parties or those who file amicus curarie briefs.
Both of your observations underscore my question: what’s the point of the article? To undermine confidence in the system? Is that in the public interest?
The Supreme Court is often balancing rights against each other, determining which is more important in a single instance. In a case where you have rights X and Y in conflict, and the court decides to favor X because of condition Z, then it’s pretty important that they are right about Z.
If a lower court finds that Z is no longer the case, or that Z is again the case, this is a serious issue that needs to be revisited.
(X, Y, and Z here are blacks having a right to vote, the state having a right to run elections without federal interference, and a recent history of discriminatory outcomes — but this is a more general problem on the court than just this)
It’s hard to say. Even to the extent one recognizes the fact that the article is accurate in its recounting of what sometimes seem to amount to seemingly innocuous factual errors, there is no proposal about how this can be remediated. Does the author expect Justices to become independent fact checkers? That’s not really their job. Perhaps the answer is that litigants need to do a better job of pointing out factual errors in opposing briefs. Otherwise, I’m not sure how Justices can be expected to know they’re relying on someone’s mis-statement of fact.
We have become increasingly specialized and should expect that to continue. It is very difficult to identify the limits of one’s own knowledge. Recognizing when it’s time to enlist the support of specialists may require more knowledge than litigants or justices possess.
Poorly written piece. I would start with the point that if there is a material error in a Court’s opinion, the parties have every incentive to file a motion for reconsideration in which the fact is demonstrated to be false in order to get the opinion changed. I’m guessing if I read the decisions I would realize that the factoid are not that important.
@Doug, one of the alleged errors appeared to have come from an amicus brief, which I suppose poses a problem in that most litigants aren’t going to respond to non-party briefs.
One of the broader issues touched upon is the internet. There are two sets of facts that an appellate body may consider (1) adjudicative facts determined at trial, which are taken to be true, and (2) legislative facts that help the appellate court frame the rule of law to control this case and similar cases. For example, if the Judge is aware that this case would adversely impact tens of thousands of pharmacies without advancing the principle concern, the rule will be narrowly tailored.
Justice Posner advocates the judges utilize and cite internet sources, including those not in the record or cited in any briefs. The judge alone in his room with a google search engine, educating himself about modern pharmacy practices. I think Posner’s point is that judge’s always relied upon general knowledge gained from outside the judicial process, and that the internet is an improvement in terms of quality and quantity of knowledge, as well as transparency, since he will cite the web page (and date reviewed) in the opinion. My impression is that his views are controversial or uncomfortable to acknowledge.
” The judge alone in his room with a google search engine, educating himself about modern pharmacy practices. ”
And they say doctors are arrogant! Some judge or lawyer is going to spend a couple o hours on the internet and then he is an expert. Here in PA we are suffering because our Supreme Court made a decision that adversely affected the consent process because the judges decided they were experts. (And maybe also because it helped the plaintiffs bar who have been actively contributing to certain campaigns.)
Steve
A century ago justices with ordinary life experience probably knew about as much as was necessary about a variety of subjects to have reasonable BS detectors. Today they’re legal specialists who’ve rarely done much other than go to school, teach law, clerk for judges, or be judges themselves. Maybe a few years of practicing law, barely enough to be a journeyman. That’s pretty insular.
Heh. These days we have doctors, lawyers, investors, bankers, psychologists, engineers, political scientists and all types of fields all with degrees from U of I…………..University of the Internet.
Reminds me of an old wisecrack. “Today with the aid of a computer it only takes a fraction of a second to make a mistake that would have taken years to make by hand.”
Well, I think Posner’s response would be that justices are looking at the internet anyway and to identify when this is done is (a) more honest, and (b) should be encouraged to provide more transparency. To Dave’s point, I used pharmacy as an example, because it is easy to imaging a point in time when the local judge might play bridge on Saturday night’s with a pharmacist.