There are innumerable ways to set up government, but the Framers of the United States Constitution agreed that our country should be governed by a series of checks and balances: the legislature drafts the laws, the executive enforces the laws, and then both are ignored while five Justices of the United States Supreme Court draft and execute the real laws by deciding in their sole discretion which laws count, which don’t, and what additional laws they would like, based on whatever “facts” some court clerk found googling around to support a Justice’s preference.

What, you didn’t learn it that way in high school civics class, college, or law school? Well, I hate to break it to you, but that’s how things work.

I’m sure someone told you along the way that the Constitution was “the supreme law of the land,” and that the federal courts were restricted in their power to interpreting “cases or controversies.” If you went to law school, then you were told that the effect of these two clauses was to limit the power of federal courts to deciding only the narrowest legal issue that will resolve the case. The Supreme Court has no power under the Constitution to create policy or issue advisory opinions or anything of the sort; it can only operate when two parties come to it asking it to resolve a dispute, which it does by applying federal or state law, often interpreting the federal Constitution to ensure that neither federal nor state laws violate it. (It’s also supposed to accept state courts’ interpretations of their own laws, but that bedrock principle was defenestrated by Bush v. Gore.)

As two recent articles, one in The New Yorker and one in the Virginia Law Review, demonstrate, however, the current Court feels not the slightest hesitation to go beyond the cases actually in front of it, and to issue decisions that go far beyond of the facts of the cases they’re deciding, and which often rely on “facts” that aren’t anywhere in the court record, “facts” that are never questioned or considered before they become the law for us all, regardless of their truth or validity. 

As I wrote back when Citizens United was decided, the core problem of the opinion, as Justice Stevens had dissented, was that it “invalidated” a law that didn’t exist. The five conservative members of the Court had invented a straw-man law and then struck it down in the most forceful terms. Last month, Jeffrey Toobin published in The New Yorker an article revealing exactly that: the conservatives, lead by Justice Roberts, had intentionally set up the case to rule on issues that weren’t even in front of the Court. In sum, the thin justification of the sweeping Citizens United opinion was the conservatives’ claim they needed to rule on a handful of oral arguments made by the Solicitor General at the first hearing on the case, arguments the Solicitor General had explicitly withdrawn at the second hearing.

“Case or controversy?” Who needs that? Just make up a law and then issue a sweeping advisory opinion on constitutional law and you’re set.

The other shoe dropped in February, when law professor Allison Orr Larson published “Confronting Supreme Court Fact Finding” (summarized by her on SCOTUSBlog here, summarized on a more lay level by Boston.com’s Brainiac here). Her conclusions about the “facts” underlying 120 “most salient” Supreme Court opinions from 2000-2010 (defined as those that produced the most media coverage, probably as good a yardstick as you’ll get) should strike fear into the heart of anyone who has any respect for the adversarial process:

By my count, 90 of the 120 most saliant Supreme Court decisions from 2000-2010 contained at least one assertion of legislative fact supported by citation. Of those, 77 percent contain at least one authority for those facts that was not present in the briefs. Acknowledging that identifying a legislative fact can potentially be tricky, a more conservative approach is just to look at the percentage of the total 120 saliant cases that make a factual assertion of any kind supported by a source found outside the adversarial process. Even that conservative estimate shows a remarkable 56 percent of these cases contain at least one factual source discovered in house – meaning outside the record, not presented by the parties and even beyond the scope of the numerous amicus briefs filed.

In other words, most of the major cases decided by the Supreme Court in the past decade included at least one fact that we could prove came from the Internet, or from the Justice’s imagination, or from the Justice’s father’s brother’s nephew’s cousin’s former roommate.

These aren’t just trivial facts. They’re facts of considerable legal, political, moral and ethical importance, like how inherently violent is it to flee from the police?, a question raised in United States v. Sykes that Justices Kennedy and Thomas answered by asking 4chan — or at least they might have asked, given that there was no opportunity for any of the parties to review and to challenge that data, and no opportunity for the rest of us in society to question, because, in the grand Supreme Court tradition, court opinions are irrebuttably presumed to be infallible. They’re never open for reconsideration or modification.

As Brainiac sums up,

What to do? In-house judicial research should either be shut down, she concludes, or delegated to a responsible and independent research group. The court should consider “creating a judicial research service akin to the Congressional Research Service from which judges can request help.” That way, the facts could be gathered in a transparent way before the opinions are written, and subjected to scrutiny from both sides.

I don’t think in-house judicial research should be shut down, because that will restrict the Court to whatever the lazy imbeciles briefing the case came up with, prohibiting the judges from applying their common sense and genuine external knowledge and experience to the case, to the extent they have any. I’m also not keen on a research service, which would run into the same political disagreements that hobble the GAO and the Congressional Research Service.

I think a better solution would be, as I wrote two and half years ago when the subject of “ex parte blogging” came up, to have the Supreme Court publicly circulate draft opinions:

Kennedy v. Louisiana shows the danger in relying upon nine people (and their typically fresh-out-of-law-school staff of four clerks each) to set legal policy for the entire country based upon two merits briefs of 15,000 words each and two reply briefs of 7,500 words each. More words are spilled on the Wikipedia page listing the people in line to succeed to the British throne.

The re-hearing and re-writing of the Kennedy opinion was a good thing; we want the Supreme Court’s opinions to be based on accurate facts and solid legal reasoning.

… Why wait until the damage has been done — why not invite public comment before the opinions become law?

That’s what the other two branches of the federal government do. The United States Congress debates bills for weeks, sometimes months, prior to passage, all of which you can see on the Library of Congress’ Thomas service. The Executive Branch similarly posts each and every regulatory change to Regulations.gov for public review and comment prior to promulgating the regulations.

Sure, this sort of public comment phase would be inconsistent with the Court’s preference to appear infallible, but is that really the most important interest here?