It’s October, which means the Supreme Court is back in session, ready to continue its pro-big-business charge. It also means it’s time for me to get back to a recurring theme on my blog: if past sessions are any indication, then no matter what the Supreme Court decides this year, it’s likely that it won’t have a clue what it’s talking about, and its opinions will be littered with dubious factual conclusions.


This problem seems to be getting worse in the era of the Roberts Court, which has taken judicial activism to a new level. Back in 2009, I recommended the Supreme Court circulate draft opinions publicly — the same way that bills are proposed in Congress and regulatory changes are proposed in agencies — before making them the law of the land. In February 2012, Alli Orr Larsen wrote about “Confronting Supreme Court Fact Finding,” perhaps by way of an agency analogous to the Congressional Research Service, which I discussed here.


But it’s important we recognize that the problem of Supreme Court “fact finding” isn’t just a matter of the Court not understanding cable television markets or how plaintiff’s lawyers are compensated differently from defense lawyers. The Supreme Court’s factual misunderstandings intrude very deeply into some of the Court’s core doctrine.


Take, for example, qualified immunity in civil rights lawsuits. It would make sense if people could sue State governments to recover damages when their constitutional rights are violated — like when police officers literally break someone’s face for back talking — but the Supreme Court has erected tall barriers against such relief. It’s not enough to prove constitutional rights were violated; the plaintiff also has to jump through a variety of hoops, such as suing the police officer individually, rather than the municipality or county, for the violation, and then they have to show that their right was “clearly established” and that the violation “shocks the judicial conscience,” which is so ambiguous that it’s really just code for giving federal judges a way to get rid of civil rights lawsuits they don’t think should succeed. 


Part of the reason for these hoops is the claim that, if we don’t have those hoops, then, because the government employees are individually on the lawsuit, and thus nominally individually responsible for any judgment from the case, those government employees will be scared to do their jobs. As the Supreme Court said:


When officials are threatened with personal liability for acts taken pursuant to their official duties, they may well be induced to act with an excess of caution or otherwise to skew their decisions in ways that result in less than full fidelity to the objective and independent criteria that ought to guide their conduct. In this way, exposing government officials to the same legal hazards faced by other citizens may detract from the rule of law instead of contributing to it.


Forrester v. White, 484 U.S. 219, 223 (1988). It sounds reasonable; it’s also totally wrong.


As Joanna C. Schwartz, a professor at UCLA School of Law, notes in a forthcoming article:


Through public records requests, interviews, and other sources, I have collected information about indemnification practices in 44 of the largest police departments and law enforcement agencies across the country. My study reveals that police officers are virtually always indemnified: during the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Police officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments – even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.


That is to say, “personal liability” for civil rights violations by police officers doesn’t really exist. They don’t even pay a penny on the dollar; they pay two-hundredths of a penny on the dollar. The city or county is on the hook, just as we knew and expected them to be.  It’s rare that they’re even fired or prosecuted for the conduct at issue. (See this article: “Sen. Al Franken (D., Minn.) had just one question [at the Senate hearing]: Was that detective still on the force?” The answer, of course, was yes. “That to me,” said Franken, “is pretty amazing.”)


Yet, every day, civil rights lawsuits are dismissed by courts for the dubious reason that we don’t want government employees to fear personal liability. One of the worst cases the Roberts court decided, Ashcroft v. Iqbal, made it harder for plaintiffs (particularly civil rights plaintiffs) to even open the courthouse doors, on the dubious rationale that “The basic thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation,” and that it would be “cold comfort” (the Court’s term) to “high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties.”


Yet, as Schwartz’s article shows, this reasoning doesn’t work for a patrol officer, much less upper level officials in the Justice Department. Their defense will be wholly paid by the government, as will any settlement or judgment.


The problem isn’t limited to civil rights. Everywhere we look, court decisions — typically rulings on motion to dismiss or motions for summary judgment — are increasingly loaded with flawed factual assumptions. Lead by the Supreme Court, we are now deep in a period of presumed judicial omniscience, where courts are encouraged and emboldened to decide disputed facts themselves. Just a few months ago, the Supreme Court pretended that antitrust laws can be vindicated in individual arbitrations, even though the cost of pursuing each claim would be vastly higher than the damages that could be awarded. So we carry on with antitrust laws on the books that can’t be enforced in the vast majority of circumstances.


While it’s nail-biting and exciting to wait for the Supreme Court to hand the law down from on high, it’s also a terrible idea, and there’s no reason to believe that the smallest branch of government is somehow better at discerning facts in the real world than the other two branches. All evidence points to the contrary. If the Supreme Court wants to get some of its legitimacy back, it can start with getting its facts straight.