Brett Kavanaugh Is Leading the Supreme Court’s Embrace of Alternative Facts

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As the Supreme Court begins a new term this month, much attention is being paid to the many recent shadow-docket rulings in which the justices have issued summary orders reversing trial courts. These typically involve little or no explanation. They also have a distinctly partisan cast, given the administration’s woeful record before the lower courts and relative success at the Supreme Court.

But from the internal perspective of the law, it is striking that many of these early-stage orders have either reversed or supplanted factual findings of lower courts. Whatever one thinks about the case outcomes, this is a stark departure from the fundamental legal norms that give jurors and trial judges the primary role in fact-finding. Appellate judges, including even Supreme Court justices, have enormous power over law, but they are not supposed to be fact finders in chief^[2]—nor should they be resting decisions on “shadow facts” not subject to the usual rules of legal practice.

Our legal system has standard customs for fact-finding^[3], which generally include introduction at trial, the possibility of expert testimony, adversarial testing, fact-finding by the jury, deference on appeal, and so on. Some of these practices are prudential, like the notion that trial judges are better positioned to evaluate witness testimony than appellate judges reading a cold record, and others are backed by constitutional command, like the jury trial, where appropriate. And courts regularly use them when considering all kinds of facts, whether scientific, economic, medical, or otherwise.

That makes it all the more troubling that the justices have frequently overturned fact-bound trial court decisions without the benefit of full briefing or argument. Digging into the factual record is time-intensive and can be distinctly unglamorous, but the stakes could not be higher.

Take the recent shadow-docket case Noem v. Vasquez Perdomo. The federal trial judge had granted a stay to prevent U.S. immigration officers from engaging in racial and ethnic profiling in Los Angeles, including because of harms to people who are citizens or have legal status. The court reversed over the summer, without the benefit of oral argument. Justice Brett Kavanaugh wrote: “As for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free.”

But the trial judge had made detailed factual findings regarding citizens who were repeatedly stopped and questioned by immigration officers, sometimes with physical force involved. One was questioned four times in nine days. Another was confronted by an officer who “racked a rifle,” took his phone, “pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.” The agents released him after he gave them his Real ID, which they took and did not return.

The trial judge asked the government to respond with any evidence at all showing that these stops of citizens were based on something more than the agents’ view of the person’s race or ethnicity. In response, the government submitted two declarations that generally described agency procedure, with no information about any particular stop or arrest. As Justice Sonia Sotomayor noted in her dissent, the government, despite “ample evidence” of illegal conduct, offered no facts in its reply.

Not only that: The basic standards of review permit a higher court to reverse factual findings only if they are not just wrong but “clearly erroneous.” Neither the government, Kavanaugh, nor the other justices in the majority ever suggested as much—indeed, these facts were wholly uncontested.

A major question for the justices this term is whether they will continue the same trend in not just shadow-docket orders but fully argued cases. The past few terms offer cause for concern. In 2022’s Kennedy v. Bremerton, the court found that the establishment clause was not violated because the high school football coach at the center of the case was engaged in “quiet” private prayer after games, such that there was no “evidence … in this record” that players would feel any coercion to participate. In dissent, Sotomayor noted that the district court had found “direct record evidence that students felt coerced to participate,” and included photographs of the coach leading prayers midfield.

One way to understand this is as another dimension of an emerging “imperial” Supreme Court. Others have highlighted the ways in which the justices have grabbed power vis-à-vis the political branches or administrative agencies (as in overturning Chevron) or even their own predecessors on the court (as when they overturn precedent). Here, the justices are claiming authority not only to set legal standards but to decide facts. This simultaneously overburdens and disempowers the lower courts.

The justices can review whether lower courts get the law right. They can reconsider prior legal precedent. But factual findings of trial judges are properly subject to deference. These are age-old principles. Jury trial and due process protections, in our legal system, safeguard the rights of parties to present facts to a fact finder. Indeed, the founders loudly decried abuses of inquisitorial courts in which judges find the facts.

As October brings a new Supreme Court term, all eyes may be on the law as the justices turn to the merits of a range of important constitutional cases. Yet, even as oral arguments begin, these cases already have raised questions of fact. Already, we have heard the justices discuss whether it is true that a therapist in Colorado faces imminent harm from prosecution under a conversion therapy law, a factual question on which the lower court made findings. Cases rest on law but also on facts, and in our legal system, jurors and trial judges—not justices—have the primary responsibility in that regard.

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