Two judicial and scholarly heavyweights squared off recently in a case challenging the constitutionality of Wisconsin’s voter ID law. Writing for the Seventh Circuit panel, Judge Easterbrook reasoned that “whether a photo ID requirement promotes public confidence in the electoral system is a ‘legislative fact’—a proposition about the state of the world, as opposed to a proposition about these litigants or about a single state.” The Seventh Circuit was bound to accept that a photo ID requirement did promote public confidence in elections because “[o]n matters of legislative fact, courts accept the findings of legislatures and judges of lower courts must accept findings by the Supreme Court.” Dissenting from the denial of rehearing en banc, Judge Posner responded that Easterbrook’s approach “conjures up a fact-free cocoon.” Posner asked: “If the Supreme Court once thought that requiring photo identification increases public confidence in elections, and experience and academic study since shows that the Court was mistaken, do we do a favor to the Court … by making the mistake a premise of our decision?”
This disagreement between Easterbrook and Posner—in the language of Allison Orr Larsen’s excellent article—is about Factual Precedents: whether the Supreme Court’s statements about legislative facts should receive “separate precedential force, distinct from the precedential force of whatever legal conclusions they contributed to originally.” (P. 63.) As Larsen explains, such “facts” are everywhere in judicial opinions—facts like “partial birth abortions are never medically necessary, fleeing from the police in a car leads to fatalities, and violent video games affect the neurological development of a child’s brain.” (P. 71.) To support such claims, Supreme Court Justices regularly invoke authorities that have never been made part of the evidentiary record or subjected to adversarial challenge by the parties to the case. Yet—as the Easterbrook opinion suggests—lower-court judges often treat factual propositions as precedent that they are bound to accept as a matter of stare decisis. Larsen convincingly argues that this is a mistake. Rather, “generalized factual claims from the Supreme Court should not receive any precedential value separate and apart from the legal rules they helped to create.” (P. 99.) Continue reading "Judicial Fact-Making"