    [Senate Hearing 117-781]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-781

                         SUPREME COURT FACT	FINDING AND
                      THE DISTORTION OF AMERICAN DEMOCRACY

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON FEDERAL COURTS,
                            OVERSIGHT, AGENCY ACTION
                               AND FEDERAL RIGHTS

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION
                                   __________

                                 APRIL 27, 2021
                                   __________

                              Serial No. J-117-15
                                   __________

             Printed for the use of the Committee on the Judiciary

                    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov
                                    ______

                      U.S. GOVERNMENT PUBLISHING OFFICE

    54-198                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California           Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee

                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                   SUBCOMMITTEE ON FEDERAL COURTS, OVERSIGHT,
                        AGENCY ACTION AND FEDERAL RIGHTS

                    SHELDON WHITEHOUSE, Rhode Island, Chair
    PATRICK J. LEAHY, Vermont            JOHN KENNEDY, Louisiana, Ranking
    MAZIE K. HIRONO, Hawaii                Member
    CORY A. BOOKER, New Jersey           LINDSEY O. GRAHAM, South Carolina
    ALEX PADILLA, California             MICHAEL S. LEE, Utah
    JON OSSOFF, Georgia                  TED CRUZ, Texas
                                         BEN SASSE, Nebraska
                                         THOM TILLIS, North Carolina

                     Alex Aronson, Democratic Staff Counsel
                    Andrew Harding, Republican Staff Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Whitehouse, Hon. Sheldon.........................................     1

                                   WITNESSES

    Fisher, Thomas M.................................................     6
        Prepared statement...........................................    27
    Larsen, Allison..................................................     5
        Prepared statement...........................................    39
    Shapiro, Ilya....................................................     9
        Prepared statement...........................................    48
    Shaw, Theodore M.................................................     8
        Prepared statement...........................................    98
    Smith, Paul M....................................................    11
        Prepared statement...........................................    64

                         SUPREME COURT FACT-FINDING AND
                      THE DISTORTION OF AMERICAN DEMOCRACY

                                  ----------

                            TUESDAY, APRIL 27, 2021

                                  United States Senate,
                     Subcommittee on Federal Courts, Oversight,
                             Agency Action, and Federal Rights,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 3 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Sheldon
    Whitehouse, Chair of the Subcommittee, presiding.
        Present: Senators Whitehouse [presiding], Leahy, Hirono,
    Padilla, Ossoff, Cruz, and Tillis.
        Also present: Senator Durbin and Blumentha.

             OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
             A U.S. SENATOR FROM THE STATE OF RHODE ISLAND

        Chair Whitehouse. All right. It is 3 o'clock, and it is
    time for the hearing to begin to get underway. Our not being
    able to see the witnesses makes me ask whether all our
    witnesses are ready and standing by in the virtual world. Good,
    thank you. I am delighted to have witnesses here.
        We are here on a very technical question of appellate
    process and appellate propriety that ordinarily would not merit
    the attention of the Senate. Because of what has transpired and
    some very important political decisions made by the United
    States Supreme Court, I think it is important that we take a
    look at this question. The question is: What is the proper role
    in an appellate court for fact-finding?
        When I was in law school and when I was being mentored as
    an appellate advocate and later on when I did some mentoring as
    an appellate advocate, I learned basically that if you are an
    appellate advocate, you do not want to be raising factual
    questions in a court of appeal because your odds are terrible.
    Appellate courts are not supposed to do fact-finding. The
    limited, limited appellate role that they have over a trial
    court or a jury's fact-finding is subject to a very, very high
    standard, which is that the finding has to be clearly
    erroneous. There has to be no conceivable reading of the
    factual record that could support the factual conclusion that
    the court blew--below drew. It is really, really clear that
    fact-finding is to be done at the trial court level, and it is
    not to be done at the appellate court level--with one--one
    minor exception, which is to take judicial notice of something.
    You only take judicial notice of things that are indisputable,
    like that Christmas in this particular year fell on a Wednesday
    or that Boston is north of Providence. That stuff does not have
    to be in the record because there is really no doubt about it.
        Courts are supposed to say what the law is, appellate
    courts, anyway, particularly the Supreme Court. The Supreme
    Court's job, according to Chief Justice Marshall, is to say
    what the law is--not what the facts are; what the law is.
        That brings us to the penchant of the Roberts Court's
    Republican majority for going off and finding facts--not ones
    that they could take judicial notice of and not ones where they
    followed the ordinary appellate procedure of reviewing the
    factual determination of the court below, subjecting it to the
    clearly erroneous test, and if it found that it failed, sending
    it back--back to the trial court for further proceedings.
        Interestingly, this problem came up in two decisions in
    which the factual determinations made by the Republican
    majority in the Supreme Court were critical hinge points to the
    result of the decision. These were not observations made in
    passing. They were factual determinations without which they
    could not have gotten to the conclusion that they wanted to get
    to.
        Shelby County was one of those cases, a challenge to the
    Voting Rights Act preclearance provisions. The Roberts majority
    in Shelby County made the finding of fact out of the clear blue
    sky that ``things have changed dramatically'' and that minority
    voters no longer faced a threat of discriminatory laws out to
    restrict their access to the ballot box.
        Even if that fact were true, the Supreme Court had no
    business making it. If it found the record was insufficient on
    this or that it wanted to explore more what the facts were,
    they would have sent it back for a more robust record or
    clearer findings of fact. They did not. They just made this
    finding of fact.
        How did it turn out? It turned out pretty darn badly. State
    legislatures in the States that were subject to those Voting
    Rights Act preclearance provisions went immediately to work to
    limit minority voting rights. Litigation exploded. Federal
    judges went to work making findings about what the States were
    doing, targeting minority voters with, as one court said,
    ``surgical precision.'' Preclearance jurisdictions saw poll
    closures, restrictive voter ID laws, voter roll purges. In
    fact, in the 24 hours immediately following the Supreme Court's
    ruling in Shelby County, Texas announced a new strict voter ID
    law. Shortly after, Mississippi and Alabama began enforcing
    voter ID laws that would previously have been barred by
    preclearance.
        So, clearly, the finding of fact, the conditions in the
    preclearance States had changed to the point of view that
    preclearance was no longer necessary, was not only highly
    questionable as a finding when the Supreme Court majority made
    it, it was irrebuttably disproven by later events. You simply
    cannot quarrel with what later events showed to have been the
    case.
        Here is where it gets a little bit interesting, because
    this is such weird and peculiar behavior that there is no
    process for what you do in this circumstance. What do you do in
    a circumstance where the Supreme Court makes a false finding of
    fact? There is a separation-of-powers quotient to this
    restriction on what appellate courts can do, keeps them
    constrained, tethered to the actual facts before them in the
    case, less able to go wandering off on policy voyages of their
    own desires.
        What happens, where do you go, when the Supreme Court
    hinges your decision on a fact that is false and is later
    proven to be false? What do you do with that? The Supreme Court
    has made no effort to clean up its factual error in Shelby
    County. Is it owed deference still by the other branches of
    Government? Isn't Congress just as good at fact-finding? Isn't
    the executive branch just as good at fact-finding as the
    Supreme Court?
        Upon what merit or basis does a Supreme Court decision
    stand when the essential fact that allowed that decision to be
    issued in the first instance is false and indisputably false?
        It was not just Shelby County. On we go to Citizens United,
    another big political case giving a big political win for the
    Republican Party, in this case allowing unlimited political
    spending into our elections. Here there was a fact-finding
    trifecta by the Republican majority. First, massive corporate
    political spending in politics could not possibly be corrupting
    because, second, the unlimited spending would be independent of
    candidates and campaigns; and, third, the unlimited spending
    would also be transparent.
        These factual determinations made by the Court's majority
    stood on no facts. As Justice Stevens called out very plainly
    in his dissent, the record in this case, quote, ``is not simply
    incomplete or unsatisfactory, it is nonexistent.'' Again, all
    of these facts that the Supreme Court found upon which the
    Citizens United decision hinged are provably wrong. Corruption
    can exist because of unlimited spending, and, indeed, it has
    emerged. Just look at the end of climate legislation.
    Independence between the big donors and campaigns is a mockery,
    as numerous articles and reviews and analyses have pointed out.
    All you have to do is turn on the TV to see a fake ad by a
    phony front group to know that transparency is nonexistent.
        Once again, the same problem: The Court spent a decade
    watching its factual findings be disproven and never stepped
    in, despite repeated opportunities to clean up the mess that it
    had made from its error.
        So now, we have two very important decisions that played an
    enormous role in the political outcomes of this country that
    were both very important to the Republican Party to win. In
    both cases a Republican majority on the Court invented or
    created or imagined facts that got them where they needed to
    go, that helped the Republican Party win those cases. Then they
    never stood back and cleaned up once their facts were proven
    demonstrably wrong.
        Unfortunately, these two particular decisions figure into a
    much larger pattern of over 80 decisions in which the Roberts
    Court Republican majority writes 5-to-4 decisions with all the
    Republicans lining up, that provide political reward to
    powerful Republican interests. A lot of those 5-to-4 partisan
    decisions break rules of appellate practice and principle; a
    lot of them break what are supposedly the rules of conservative
    legal practice. In these two cases, it was the rule against
    appellate fact-finding that was sacrificed.
        Imagine that the Court was facing pandemic restrictions,
    and it reviewed the pandemic restrictions put in place by
    Governors and mayors by finding that the virus at the heart of
    the pandemic could be cured by ingesting disinfectant or
    bleach. Imagine that that were not true. You would have
    undercut the Government's ability to deal with the pandemic.
    You would have done so on a completely false and manufactured
    factual assertion. Where do you go for that? If it is the
    Supreme Court, there is no further court of appeal, and if the
    Supreme Court wants to sit on that fact and never correct it,
    there is no vehicle to force its hand. Does that then open a
    role for the other two branches of Government, for the
    legislative branch or for the executive branch, to step in and
    say those decisions are founded on a demonstrably false
    predicate, and when the predicate fell, so did the decision
    and, therefore, these decisions of the Court are not entitled
    to the customary deference that we give Court reviews?
        To consider this, we have some very knowledgeable and
    interesting witnesses who are before us today, and I am very
    grateful that they are here. I will find in a moment my list of
    them. Here they are. I think we will go in the following order
    just so that everybody will know.
        We will start with Allison Orr Larsen, a professor of law
    at William & Mary Law School, who teaches constitutional law.
    She has worked before on this issue and has been published in
    the media on this issue. She is a fellow law graduate, though
    far more distinguished, from the University of Virginia and a
    clerk for Judge Wilkinson from the U.S. Court of Appeals for
    the Fourth Circuit and for Justice Souter on the Supreme Court.
        After her, I will recognize Thomas Fisher, who is the
    solicitor general of Indiana since 2005, who handles the
    appellate work for the State of Indiana. He is also a fellow of
    the American Academy of Appellate Lawyers and adjunct professor
    of law at Indiana University Maurer School of Law and a former
    clerk for Judge Michael Kanne of the Seventh Circuit Court of
    Appeals.
        After him, we will hear from Theodore M. Shaw, the Julius
    L. Chambers Distinguished Professor of Law and the director of
    the Center for Civil Rights at the University of North Carolina
    School of Law at Chapel Hill. He teaches civil procedure and
    advanced constitutional law with particular focus on the 14th
    Amendment. He has previously served as the director-counsel and
    president of the NAACP Legal Defense and Educational Fund and
    has considerable experience with the facts that surround the
    Shelby County decision. He began his career as a trial attorney
    in the DOJ Civil Rights Honors Program, and as a former DOJ
    employee, I am always delighted to see that.
        Next will be Ilya Shapiro, vice president of the Cato
    Institute, director of its Robert Levy Center for
    Constitutional Studies, and publisher of the Cato Supreme Court
    Review. He has recently written ``Supreme Disorder: Judicial
    Nominations and the Politics of America's Highest Court'' and
    has filed more than 400 Supreme Court amicus briefs and, as
    well, has been an adjunct law professor at George Washington
    University and the University of Mississippi.
        We will close out with Paul Smith, the vice president for
    litigation & strategy at the Campaign Legal Center. He is also
    a professor at the Georgetown University Law Center where he
    teaches election law and constitutional law. For 35 years, he
    has focused on appellate and Supreme Court practice and has
    argued 21 cases in the U.S. Supreme Court, which is 20 more
    than I have.
        I am delighted to have this panel of witnesses. I should
    add that Paul was also a law clerk for Supreme Court Justice
    Lewis Powell.
        If I may, let me ask Professor Larsen to lead off with her
    testimony. Ms. Larsen, the floor is yours, and the camera is
    alive.

             STATEMENT OF ALLISON ORR LARSEN, PROFESSOR OF

                LAW AND DIRECTOR, INSTITUTE OF THE BILL

              OF RIGHTS LAW, WILLIAM & MARY SCHOOL OF LAW,

                         WILLIAMSBURG, VIRGINIA

        Professor Larsen. Okay. Thank you so much. I am really
    delighted to be here today. Thank you for inviting me to
    testify.
        The issues that you are confronting this afternoon are ones
    that I have been writing about and thinking about for over a
    decade, so I am honored to share my observations with you in
    any way that can be helpful.
        My scholarship focuses on the institutional and information
    dynamics of judicial decision-making. What does that mean? I
    have a particular interest in the role of fact-finding at the
    Supreme Court and the way that the Justices inform themselves
    about the factual contours of the decisions that they make.
        My starting assumption is that technological advances have
    changed a lot about the way courts desire and digest
    information. I am concerned that the rules governing fact-
    finding have not caught up to that change.
        Under the current rules of Federal evidence, generalized
    facts about the world, what academics call ``legislative
    facts,'' they are not regulated at all. They are explicitly
    exempted from the rule about judicial notice. The advisory
    notes which accompany them and call for their unfettered use
    date back to 1972. Legislative facts can be but do not have to
    be the subject of expert testimony at trial, and citations to
    support these factual claims can be but do not need to come
    from the record. District court decisions on these legislative
    facts may but are not entitled to be given deference from the
    reviewing court.
        This amounts to a procedural hodgepodge when it comes to
    legislative facts, and while that may have been fine in 1972,
    the world of information sharing just looks dramatically
    different today. The traditional limitations of fact-finding at
    the appellate level are well known, so these courts, including
    the Supreme Court, have limited staff, limited resources,
    limited time. The parties that are briefing them have limited
    space in which to do so. Appellate courts are just not built to
    find facts. Thanks to the dawn of the internet age, the
    Justices and their law clerks have new tools, and they are
    flooded with information literally at their fingertips. Social
    science studies, raw statistics, other data--they are all just
    a Google search away, and they are being pressed by motivated
    groups seeking the Justices' attention. Today, if the Justices
    want empirical support for a factual dimension of their
    argument, they can find it easily, and they are increasingly
    being asked to do so by amicus briefs that are filed by
    outsiders to the litigation at a record-breaking pace.
        As a result, Supreme Court decisions today are really fact-
    heavy. They are longer. They are padded with significantly more
    citations. They are rich with nonlegal authorities like
    citations to newspaper articles or online data sets or websites
    or even blog posts.
        I do not think the judges should put their heads in the
    sand and ignore everything they see online. That is not my
    position. I also think amicus briefs can be a valuable
    educational tool. But right now there is just no quality
    control on those briefs, so the information coming to the
    Justices is not uniformly reliable, has not been stress-tested
    through the adversarial system. It is coming in at the 11th
    hour, and, importantly, it is being provided by nonneutral
    groups. The norm today are targeted amicus briefs authored by
    motivated interest groups, often coordinated by the parties,
    and submitted by well-organized and well-funded players. This
    matters because the factual authorities they cite--the studies,
    the statistics, the articles--they are all marshalled by
    someone with a dog in the fight. This trouble is exacerbated by
    the ever expanding sea of factual information that is available
    to all of us now, including the Justices, and the human
    tendency to look for facts that support and confirm a
    preexisting worldview.
        The suggestions I have made in my work, it is not to
    abandon the amicus brief or to eliminate appellate fact-finding
    altogether but, rather, to update the rules to accommodate the
    new reality, whether it is through increased disclosure rules
    or awarding deference to facts that have been through the
    adversarial testing of some sort. I think the time has come to
    confront fact-finding at the Supreme Court, and I am really
    delighted that you are thinking of doing so today.
        [The prepared statement of Professor Larsen appears as a
    submission for the record.]
        Chair Whitehouse. Thank you very much, Professor Larsen.
        I will now turn to Solicitor General Fisher of Indiana.

           STATEMENT OF THOMAS M. FISHER, SOLICITOR GENERAL,

              STATE OF INDIANA, OFFICE OF ATTORNEY GENERAL

                   TODD ROKITA, INDIANAPOLIS, INDIANA

        Solicitor General Fisher. The premise of today's hearing,
    as I understand it, is the suspicion that the Supreme Court
    regularly flouts both judicial and democratic norms by basing
    its decisions on factual evidence brought to its attention by
    obscure sources outside of the adversarial process. The concern
    seems to be that organizations funded by confidential donors
    advancing their own private interests seek to influence the
    Court by filing amicus curiae briefs packed with dubious
    factual assertions that have never been subjected to
    adversarial testing. As many lawyers and scholars have
    recounted, and as today's witnesses will testify, it is indeed
    the case that various entities, individuals, scholars, and
    organizations--some, but not all, funded by confidential
    donors--seek to influence the Court by filing amicus curiae
    briefs packed with factual assertions, occasionally dubious,
    but assertions that have not been subjected to adversarial
    testing.
        My view of the matter, however, is that concerns about that
    phenomenon are overblown. First, as my friend Mr. Shapiro will
    testify, it is not entirely clear whether the Supreme Court
    decisions that are thought to typify this issue--Shelby County
    and Citizens United--actually depended on amici-supplied extra-
    record evidence.
        Second, the practice of amici curiae briefs of various
    types across the ideological spectrum bringing relevant, extra-
    record evidence to the Supreme Court's attention is not a new
    phenomenon. Indeed, it has a distinguished pedigree going back
    at least to the original Brandeis Brief--that is, the amicus
    brief filed by then-scholar and eventual Supreme Court Justice
    Louis Brandeis in Muller v. Oregon back in 1908. Broadly
    speaking, the legitimate parameters of Brandeis Briefs are well
    understood by the legal profession: It is appropriate for such
    briefs to bring to the Court's attention matters of legislative
    fact--i.e., facts about the state of the world--but not matters
    of adjudicative fact--that is, evidence or claims about events
    or parties relevant to a particular case. Supreme Court
    Justices and lower-court judges alike can distinguish between
    the two and ultimately dismiss attempts to advance extra-record
    adjudicative facts.
        That is not to say that no tension exists between the idea
    of Supreme Court legislative fact-finding and the idea of
    democratically accountable decision-making. In short, when the
    state of the world is reasonably disputed, we generally look to
    legislatures, not courts, to make the critical decisions, as
    limited by constitutional safeguards protecting individual
    liberty. Precisely because legislators are accountable to
    voters, we lodge policy judgments in their hands.
        The real problem underlying today's hearing, then, is not
    the practice of amici supplying the Court with extra-record
    material concerning legislative facts. It is instead the
    practice of the Supreme Court, arising largely in the latter
    half of the 20th century (but continuing to some degree today),
    of deciding constitutional cases based on vague, multipart
    balancing tests or standards instead of deciding them based on
    crisp rules derived from the original public meaning of
    constitutional text. Balancing tests, in short, amount to
    policy judgments, not legal reasoning, and they invite the very
    reliance on extra-record state-of-the-world fact-finding that
    has prompted this hearing.
        Fortunately, the Supreme Court has shown signs in recent
    decades of retreating from amorphous, policy-laden
    constitutional standards and advancing toward a constitutional
    law characterized by rules grounded in constitutional text and
    history. That, and not any extraneous restraint on amicus
    practice, is the solution to any problems attendant to Supreme
    Court fact-finding.
        If we are to be governed by a constitutional law of broad
    standards and judicial balancing tests--inquiries that by their
    nature invite judicial policymaking--then Supreme Court fact-
    finding is inevitable, and the current system of liberal
    Brandeis Briefing is perfectly reasonable. Doing away with
    amicus briefs that bring extra-record legislative facts to the
    Court's attention would only cloud a practice that, at present,
    is relatively open and transparent. The real problem is not how
    Supreme Court practice copes with decision-making under current
    doctrines. It is the doctrines themselves. Only by eschewing
    the vague standards that characterize so many doctrines of
    constitutional law, and embracing instead rules-based decisions
    grounded in text and history of the Constitution, can the Court
    leave the legislative fact-finding where it belongs--in the
    Nation's legislatures.
        Thank you.
        [The prepared statement of Solicitor General Fisher appears
    as a submission for the record.]
        Chair Whitehouse. Thank you very much, Solicitor General
    Fisher. I appreciate your joining us from Indiana.
        I would turn now to Professor Shaw.

                STATEMENT OF THEODORE M. SHAW, JULIUS L.

              CHAMBERS DISTINGUISHED PROFESSOR OF LAW, AND

             DIRECTOR, CENTER FOR CIVIL RIGHTS, UNIVERSITY

                    OF NORTH CAROLINA SCHOOL OF LAW,

                      CHAPEL HILL, NORTH CAROLINA

        Professor Shaw. Good afternoon. I am grateful for the
    opportunity to be here and to testify before this Subcommittee,
    and I hope, Senator Whitehouse, that this is not hubris for me
    to ask this question: Did you want to swear us in?
        Chair Whitehouse. That is not necessary.
        Professor Shaw. Okay.
        Chair Whitehouse. Witnesses before Senate Committees are
    automatically deemed to be under oath, and since nobody is
    giving factual testimony, my practice is not to do so and to
    rely on the standard rule.
        Professor Shaw. Wonderful. Thank you for that piece of
    education for me.
        I--so I want to focus on the Supreme Court's decision in
    Shelby County, and I also, in my written submission, have
    something to say about Citizens United. Both of these cases, I
    think, are instances in which the way the Supreme Court has
    strayed from facts has contributed to the Court being part of
    what I consider to be a very troubling and dangerous moment in
    our history. I hope I am wrong about some of this, but I know
    that with respect to Shelby County, I think that not only am I
    not wrong, but the Court straying from the Congressional
    Record, as it did in the Shelby County case, has led it to be
    wrong about where the country is now when it comes to racial
    discrimination and our electoral processes.
        I was very much engaged in the process of advocating for
    the extension of the Voting Rights Act in 2006 and the
    temporary provisions of the Voting Rights Act. I testified
    before both the Senate Judiciary Committee and the House
    Judiciary Committee and also submitted written answers to
    questions before the Senate Judiciary Committee. As one of the
    civil rights lawyers who worked to advocate for the extension
    of section 4 coverage with respect to the workings of section
    5, I know that we spent a huge amount of time consciously
    building the record. As a lawyer, as a litigator in court and
    trial, the record is everything. That is not only true with
    respect to litigating cases, it is also true with respect to
    building a record that would withstand the inevitable
    controversy and court challenges that were going to follow the
    extension of the Voting Rights Act.
        We were very, very deliberate about that, and although in
    the Shelby County case Chief Justice Roberts wrote that the
    record that was before the Court in Shelby County was old, it
    was based upon a nearly half-century-old set of facts, that was
    not the set of facts that Congress relied upon when it enacted
    the extension of the Voting Rights Act in 2006. Quite to the
    contrary, it relied on a record that had been updated that
    looked at the jurisdictions that were covered under section 5
    of the Voting Rights Act and by the coverage formula pursuant
    to section 4. It based its legislation in 2006 on that record,
    not the 40- or 50-year-old record to which the Chief Justice
    appointed.
        At one point in Shelby County, the Chief Justice said,
    quote, ``In 1965, the States could have been divided into two
    groups: those with a recent history of voting rights and low
    voter registration and turnout, and those without those
    characteristics. Congress based its coverage formula on that
    distinction. Today the Nation is no longer divided along these
    lines, yet the Voting Rights Act continues to treat it as it
    is.''
        Many of us were deeply troubled when we read that part of
    the Shelby County opinion, but I wonder what the Chief Justice
    would say today about his comments, his opining with respect to
    whether the country is divided along those lines, because, in
    fact, I think what we saw, as, Senator Whitehouse, you pointed
    out, was an immediate--an immediate opening of some floodgates
    after the Shelby County decision. We saw legislation on State
    levels with respect to voter ID laws, with respect to
    gerrymandering, the fourth circuit opinion that talked about
    ``surgical precision'' with respect to gerrymandering. We saw a
    number of States adopting efforts that--and we continue to see
    them now--that are aimed at reducing the number of people who
    can vote. The idea that citizens should be able to vote now if
    they are entitled to is up for grabs. The notion that low voter
    turnout is not a good thing is up for grabs, in part because
    the Supreme Court in Shelby County seems to have given license
    to the--to the notion that we should be trying to prohibit
    people from voting.
        Chair Whitehouse. Professor Shaw, I have let you go over a
    couple of minutes because we had that conversation at the
    beginning, but if you could please wrap up?
        Professor Shaw. Yes. My apologies.
        The bottom line is that the country with respect to the
    right to vote is still deeply divided, that the fact-findings
    that the Chief Justice made or purported to make in Shelby
    County were inaccurate and wrong, and we need--and we hope that
    the Senate, that Congress revisits the Voting Rights Act and
    reactivates its protections.
        Thank you, Senator.
        [The prepared statement of Professor Shaw appears as a
    submission for the record.]
        Chair Whitehouse. Thank you so much, Professor Shaw.
        I now turn to Mr. Shapiro.

               STATEMENT OF ILYA SHAPIRO, VICE PRESIDENT

                AND DIRECTOR, ROBERT A. LEVY CENTER FOR

                CONSTITUTIONAL STUDIES, CATO INSTITUTE,

                             WASHINGTON, DC

        Mr. Shapiro. Chairman Whitehouse and Senators, thanks for
    this chance to share my thoughts on judicial process.
        I actually think the hearing title is a bit loaded: first,
    because the Supreme Court does not generally engage in fact-
    finding in the way trial courts do; and, second, because
    however much our democracy is ``distorted,'' a reactive
    institution like the Court is hardly at fault. Indeed, the
    Court is the most respected Government institution other than
    police and the military, so hand-wringing over its legitimacy
    arises when progressives are frustrated there is a major
    institution they do not control. The Chairman himself
    threatened the Court in a brief last year.
        It is uncontroversial when the Court takes facts into
    account to assess reliance interests and such. There is a
    difference between ``adjudicative'' and ``legislative'' facts.
    Appellate courts are not supposed to develop adjudicative
    facts. Legislative facts are different because they explore the
    consequences of potential rulings. Justice Breyer in particular
    is known for internet searches, but all the Justices do it.
        Yet something tells me that this hearing was not called to
    survey appellate review of summary judgment determinations or
    the difference between clear error and abuse of discretion. Nor
    is this a seminar on the proper scope of judicial notice;
    otherwise, we should all yield our time to Professor Larsen and
    her groundbreaking empirical work.
        Instead, this is a collateral attack on decisions that
    Professor Larsen called ``fact-y''--that is, legal rulings
    ``infused with factual observations,'' specifically Shelby
    County and Citizens United. Neither judicial fact-finding nor
    even legislative facts in amicus briefs mattered much in those
    cases. I certainly would not lump them in with Brown v. Board
    or Roe v. Wade or Grutter v. Bollinger.
        Before turning to the cases, I want to comment, though, on
    the role of amicus briefs where I have plenty of so-called
    lived experience. My briefs are not a good example of fact-
    finding because we make legal arguments rather than filing
    Brandeis Briefs. Cato has no expertise in biology, sociology,
    or technology. Instead, we maintain an unwavering commitment to
    liberty through constitutional Government. That is our only
    interest, and we do not hide it.
        Despite the Chairman's quixotic crusade against amicus
    brief funding, there is nothing fishy about donations to
    nonprofits involved in strategic litigation. It is done on the
    left and the right, and even by libertarians. Cato is funded 75
    percent by individuals and 20 percent by foundations. We also
    get a tiny bit of corporate funding, about 3 percent, much less
    than the Chairman gets from corporate PACs.
        The attack on amicus briefs misplaces the causation arrow.
    Advocacy groups advance many causes, and donors, both
    individual and corporate, fund the causes they support.
        Because of a Constitution that is classically liberal, the
    Supreme Court is one of the few friends in Government for
    advocates of liberty. For example, the term Shelby County was
    decided, Cato was the only group to have filed on the winning
    side not only there, but in Fisher v. UT Austin and Obergefell
    v. Hodges. Moreover, Cato was the only group in the entire
    country to have filed for both Jim Obergefell and, 5 years
    later, Jack Phillips, the owner of the Masterpiece Cakeshop
    bakery.
        On Shelby County, the Constitution does not let Congress do
    whatever it wants regarding voting. Section 2 of the 15th
    Amendment says that, quote, ``Congress shall have power to
    enforce this article by appropriate legislation.'' What
    ``appropriate legislation'' means is disputed. In 2009, the
    Court unanimously ruled that the Voting Rights Act ``imposes
    current burdens and must be justified by current needs.''
        So, legislation passed to protect voting rights may be
    constitutional when enacted but cease to be when the underlying
    conditions change. We can argue over when that point comes, but
    it is not fact-finding; it is judging.
        It should not be surprising that Shelby County eased out
    what was supposed to be a temporary provision to oversee State
    elections based on that era's racial disparities. The Court
    simply founded that the coverage formula for jurisdictions
    subject to preclearance was based on 40-year-old data, so
    covered jurisdictions no longer corresponded to discrimination.
    Had Congress updated section 4 when it renewed section 5, the
    Court would have had a harder time finding the coverage formula
    outdated.
        In other words, just as the Court was correct in 1966 to
    approve the constitutional deviation that preclearance
    represents as an uncommon remedy to the exceptional conditions
    in the Jim Crow South, it was correct in 2013 to restore the
    constitutional order on the basis of legal findings. While
    Justice Ginsburg compared ending preclearance to throwing away
    your umbrella in a rainstorm because you are not getting wet,
    it is actually more like stopping chemotherapy when the cancer
    of actual Jim Crow is eradicated.
        Citizens United is even less fact-dependent. The question
    it asked was entirely a legal one: Does the First Amendment
    allow Government to restrict corporate or union independent
    speech? Some argue that the case relied on a factual finding
    that independent spending does not corrupt politics, but the
    majority opinion is grounded in law. The only constitutional
    justification for restricting political speech is to prevent
    quid pro quo corruption or its appearance. Debating campaign
    finance is beside the point because Citizens United did not
    involve policy judgments.
        In sum, there may be real problems with in-chambers
    research. Studying that issue is worth the Subcommittee's time.
    But associating it with the debates over Shelby County and
    Citizens United or polemics about our democracy detracts from
    that project.
        Thank you, and I welcome your questions.
        [The prepared statement of Mr. Shapiro appears as a
    submission for the record.]
        Chair Whitehouse. Thank you very much, Mr. Shapiro.
        Finally, we have Mr. Paul Smith from the Campaign Legal
    Center. Mr. Smith, proceed.

                    STATEMENT OF PAUL M. SMITH, VICE

                   PRESIDENT, LITIGATION & STRATEGY,

                 CAMPAIGN LEGAL CENTER, WASHINGTON, DC

        Mr. Smith. Thank you, Mr. Chairman and Members of the
    Subcommittee. I appreciate the honor of appearing before you
    today to talk about a really important topic: how the Supreme
    Court comes up with the factual assumptions that underlie its
    constitutional decisions, especially in key election law cases
    like Citizens United and Shelby County.
        These kinds of factual assumptions, known as legislative
    facts, involve questions of how the world works or how a
    particular legal rule will operate in practice. In applying the
    Constitution, for example, in deciding whether a law passed by
    Congress is constitutional or not, the Supreme Court needs a
    factual basis. In my experience as a student of the Court, it
    generally functions better when it derives those facts from a
    trial court record or a legislative record. By contrast, some
    of the least defensible Supreme Court rulings have come about
    when the Court disregards the evidence in the legislative
    record or the trial record and relies on factual assumptions
    that do not turn out to be remotely accurate.
        Take Citizens United, for example. As laid out in my
    written testimony, the Court relied on the factual assertion
    that so-called independent expenditures in political campaigns,
    as distinguished from contributions to candidates, can never be
    corrupting. What was the basis of that assertion? That
    certainly was not a factual assumption accepted by Congress
    when it passed the provision of the Bipartisan Campaign Reform
    Act that was at issue. To the contrary, Congress relied on its
    intimate knowledge of how campaigns operate in deciding to
    extend the existing limits on corporate independent
    expenditures back in 2002.
        Nor was there any trial record supporting the Court's
    assertion about the noncorrupting nature of independent
    expenditures. There could not be because Citizens United had
    decided not to make the argument that the law issue was
    facially unconstitutional until the Supreme Court converted the
    case to a facial challenge after it was already up on appeal.
        Ironically, there was an extensive factual record on this
    very issue being developed by lawyers at the Federal Election
    Commission at precisely the same time. That was in a case
    called SpeechNow. That evidence became irrelevant once the
    Court announced in Citizens United, essentially as a matter of
    law, that independent expenditures are per se noncorrupting.
        How did this all work out? Citizens United led directly to
    the creation of super PACs, large PACs receiving unlimited
    contributions that make only independent expenditures. They
    evolved, in many cases, into single-candidate super PACs
    working hand in glove with candidates and their campaigns. The
    notion that large, unlimited contributions to that kind of
    entity can never buy undue influence or corrupt the candidate
    seems just silly. These institutions, these entities are
    indistinguishable, for all practical purposes, from the
    campaign contributions which Congress continues to limit.
        Shelby County presents a different but equally troubling
    scenario. In 2006, Congress had to decide whether to renew
    section 5 of the Voting Rights Act, which required preclearance
    of voting changes in States mostly in the Deep South. Based on
    exhaustive evidence, it decided that this region continued to
    exhibit a desire to suppress voting by African Americans and
    Latinos and, therefore, should remain subject to the
    preclearance regime. Congress then passed the extension of that
    law almost unanimously.
        How did the Supreme Court respond? The majority in a 5-to-4
    ruling simply rejected the factual conclusions of Congress and
    all of the evidence on which they were based. It issued a novel
    constitutional ruling invalidating this important act of
    Congress premised on the notion that the States subject to
    preclearance had changed so much that this highly effective
    barrier to vote suppression was no longer necessary.
        The result was predictable and unfortunate. State after
    State passed laws that would have clearly failed preclearance
    because they were very, very likely to diminish access to the
    franchise for Black and Latino voters. The ability of advocates
    to push back on these laws was severely impaired, and often
    even when the challenges that were brought were successful, the
    legislatures simply turned around and passed more laws aimed at
    vote suppression.
        That is precisely what section 5 was intended to prevent,
    that kind of whack-a-mole legislating, constant new innovation
    in means of vote suppression.
        To be sure, there are times when the Justices need to make
    their own best judgments about the legislative facts in
    deciding cases. Not every case has a factual record, but the
    enforcement of constitutional rights has to continue. It would
    be better if the Court minimized those situations and relied on
    well-documented actual records wherever possible.
        Thanks for allowing me to testify today. I would be happy
    to answer any questions you may have.
        [The prepared statement of Mr. Smith appears as a
    submission for the record.]
        Chair Whitehouse. Thanks very much, Mr. Smith.
        We have participating in the hearing former Chairman Leahy,
    current Chairman Durbin, and Senators Hirono, Padilla, and
    Ossoff, as well as Senator Tillis on the Republican side. I am
    going to be here until the end, so I am going to withhold my
    questioning. The order of questioning at this point is going to
    be Leahy, Tillis, Durbin, Hirono, Padilla, Ossoff, unless other
    Republican Members come, in which I will intersperse them.
        With that, let me turn it over to our distinguished
    President Pro Tempore Chairman Leahy. Senator Blumenthal just
    joined us, too, so he fits into the roster by seniority.
        Senator Leahy. Thank you, Mr. Chairman, and thank you for
    holding the hearing. You and I have discussed these things many
    times, as have most of the people around here. As you know, I
    think that two of the most harmful Supreme Court decisions of
    our lifetime are Shelby County and Citizens United, and I have
    not been at all shy about my criticisms.
        I look at Shelby County ignoring the massive bipartisan
    record Congress assembled, and I was here at the time. We held
    over 21 hearings, 15,000 pages of evidence, and every Member of
    the Senate, Republican and Democratic alike, agreed that
    section 5 of the Voting Rights Act remained essential to
    preventing serious and widespread intentional discrimination, a
    98-to-0 vote. You normally do not see a 98-to-0 vote around
    here to say the sun rises in the east. But the--as Justice
    Ginsburg's dissent pointed out, the Court made no genuine
    attempt to consider the overwhelming evidence Congress gathered
    by both Republicans and Democrats in determining the scourge of
    discrimination was not yet eliminated. Instead, they just did
    away with it and said, ``Start all over again.''
        Could I ask, Professor Shaw, why was the Court's decision
    to dismiss the massive bipartisan record Congress built in
    support of the 2006 Voting Rights Act reauthorization such a
    major mistake? Why did it lead to a decision divorced from the
    facts?
        Professor Shaw. I have been puzzled, at best, by the
    Supreme Court's decision--I should say the majority of the
    Supreme Court's decision in Shelby County. I just want to
    underscore again the record that supported the extension of the
    Voting Rights Act, and, in particular, the coverage formula,
    relied on State reports, on Subcommittee hearings in both the
    Senate and the House, on the National Commission on the Voting
    Rights Act. It relied on descriptions of court decisions and
    evidence in those decisions, as well as a review of section 5
    objections. The record was massive, as I am sure you well
    remember. I am puzzled at best at trying to understand how the
    Supreme Court majority arrived at the conclusion that there was
    no contemporary evidence that supported the extension of the
    Voting Rights Act. That was simply not consistent with the
    facts, although the Supreme Court does have the final say.
        Senator Leahy. I understand the final say, and I respect
    that. I find it hard to find any case where it has been so
    overwhelming in the dedication to the facts that there was in
    this one. As Justice Ginsburg said, the Congress' powers are at
    its height when it acts to confront the most invidious forms of
    discrimination.
        You have five Justices who suddenly decided to ignore the
    overwhelming conclusion of Republicans and Democrats alike in
    Congress trying to prevent voter discrimination. I know,
    Professor Larsen, you testified on this. Did the Court in
    Shelby County give any explanation for why it suddenly thought
    it was better positioned to do this fact-finding than the
    democratically elected branches of Government?
        Professor Larsen. I think reasonable minds can disagree
    about whether the decision in Shelby County was a factual one
    or a legal one that rested on a factual premise. What I have
    written about before is, you know, there is a consequence of
    using ``fact-y'' language beyond even the consequences of
    striking down the Voting Rights Act, and that is, there is sort
    of a retreat to facts. It makes it sound more neutral and
    objective and almost quasi-empirical and scientific. I think
    there is a change not just in the information the Court is
    using to support their factual assertions, but also in the
    legal decisions themselves that rely on the factual claim. I
    guess----
        Senator Leahy. In fact, those factual claims came from
    15,000 pages of evidence that every Member of the Senate had
    relied on. It was not--it was not the Senate saying, ``Here,
    here is the law,'' but instead saying, ``Here are the facts,
    15,000 pages backing it.'' Across the political spectrum, we
    agreed to that.
        Does that give us some pause if the Court is willing to
    ignore that? We are not talking about the law. We are talking
    about the facts.
        Professor Larsen. Right. I tend to think that anytime the
    law is premised on a factual claim like that, even if it is a
    legal question, that the facts being asserted should be
    deferred to if they have been through a significant process.
    Here, as you mentioned, the Congressional Record had been
    through--it was bipartisan. It had been recently reenacted. I
    do think in that situation the deference to the legislative
    record was warranted because of the process that went into the
    creation of the factual record.
        Senator Leahy. Thank you, Mr. Chairman.
        Chair Whitehouse. Thank you very much, Senator Leahy.
        We turn now to Senator Tillis. We have also been joined by
    Senator Cruz, who will be next in rotation on the Republican
    side.
        Senator Tillis. Thank you, Chairman. Just a quick question
    or a couple of questions for Mr. Shapiro and Mr. Fisher. The
    first question is: Do you believe it is ever appropriate for
    the Supreme Court to engage in fact-finding?
        Mr. Shapiro. I will go first, I guess. Not adjudicative
    fact-finding and not--you know, finding judicial notice is
    perfectly appropriate, and beyond that, you know, Professor
    Larsen has done good work on how that is done and the
    adversarial process and so forth. You do not want to have kind
    of a battle of experts in footnotes and things like that. I
    would say it is sometimes appropriate, yes.
        Senator Tillis. Mr. Fisher, I would like your input. Maybe
    as you do--and, Mr. Shapiro, I should have started by welcoming
    Professor Shaw, welcome to DC. I wish I was in North Carolina
    with you. Then, Mr. Fisher, if you could answer that question
    as well, but then also talk about maybe a notion of standards,
    whether there should be a different standard for the Supreme
    Court versus other appellate courts.
        Solicitor General Fisher. Thank you. The main concern I
    have got is that the Supreme Court, when it makes decisions,
    constitutional decisions, that it do so in a way that permits
    evenhanded application and not in a way that is articulated in
    terms of balancing tests and standards that can permit facts in
    different cases to lead to different outcomes, because that
    only heightens the significance of any arguments about facts in
    the Supreme Court. I think the Supreme Court operates as a
    court just like other courts, and I am frequently in the
    position of defending State laws where courts are making
    inquiries about whether we have a sufficient factual record,
    and we are making those arguments based on what is in the
    record, and occasionally we will see amicus briefs that show
    up.
        I think we should also, you know, point out that the kinds
    of legislative facts we are talking about do not always come
    just from amicus briefs. They come from party briefs, too. I
    think that when you have got, you know, a Supreme Court that is
    embracing broad standards as opposed to crisp, articulated
    rules, inevitably you are going to run into this problem, and
    it is going to trickle down to the lower courts as well.
        Senator Tillis. Mr. Shapiro, on the point of possibly a
    different standard for the Supreme Court versus lower appellate
    courts, do you have an opinion?
        Mr. Shapiro. I think the Supreme Court sits as a court of
    review. I mean, perhaps it has need to look at broader
    perspectives and, therefore, different kinds of legislative
    facts, because, after all, it is the Court of last resort. It
    sets the rules for the entire country with no possibility of
    appeal short of Congress changing the law in a statutory case
    or amending the Constitution in a constitutional one. There is
    more weight to it and perhaps more consideration needed, but
    that is a difference of degree, I would say, rather than kind.
        Senator Tillis. Professor Shaw, just a quick question for
    you. What are the possible harms from prohibiting appellate
    courts, including the Supreme Court, from conducting fact-
    finding?
        Professor Shaw. I think the--and, by the way, it is a
    lovely day here in North Carolina. I think that we know that
    trial court judges sit closest to the facts, to the witnesses.
    They can make judgments that appellate judges are not in a
    position to make. When the Supreme Court makes fact-findings,
    what it is doing is displacing those well-grounded, well-
    founded judgments and substituting its own judgments, and
    probably without a real clear basis for doing so. I think the
    danger is to credibility of the Supreme Court.
        Senator Tillis. Thank you all. Thank you, Mr. Chairman.
        Chair Whitehouse. Thank you very much, Senator Tillis. I
    see Senator Durbin and Senator Blumenthal do not seem to be
    present at the moment, so I will turn to Senator Hirono.
        [No response.]
        Chair Whitehouse, over to you.
        Senator Cruz. Thank you, Mr. Chairman. It is the first time
    I have ever been introduced as ``Senator Hirono.'' It is good
    to be with you. Welcome to each of the witnesses. Thank you for
    being here.
        Mr. Shapiro, let us start with you. You and I have known
    each other. We have been friends for north of 20 years now. You
    have been at Cato a long time. You do an awfully good job. For
    Cato, you have worked on a lot of amicus briefs. Let us start
    off at the beginning. Are amicus briefs some sort of deep,
    mysterious tool for dark money to deceive the United States
    Supreme Court?
        Mr. Shapiro. They are not. The disclosures that are
    currently in place about whether you have been funded by a
    party or whether the brief has been written by a party
    demonstrate whether there are any conflicts like that. Beyond
    that, it is just someone having a problem with the organization
    generally.
        Senator Cruz. I guess I could understand the concerns of
    the majority. I mean, after all, amicus curiae is Latin for
    ``corrupt purveyor of lies,'' is it not?
        Mr. Shapiro. There is some dispute now, I suppose, whether
    it is really a ``friend of the court'' or a ``friend of only
    the party that you are supporting.'' I take your point.
        Senator Cruz. Mr. Fisher, General Fisher, it is good to see
    you as well. You and I served as fellow solicitors general in
    Indiana and Texas, respectively. You have been doing this job a
    long time. From your perspective, what is the importance of
    amicus briefs filed by the State attorneys general?
        Solicitor General Fisher. I think it is critical that the
    Court understand what impact its decisions may have on States.
    I think there was a time when the States and the Supreme Court,
    the status of States in the Supreme Court, was not really what
    it should be in our constitutional system where States have
    sovereign authority. The Supreme Court rules, as you know, give
    States the right, when filing under the name of the attorney
    general, to file an amicus brief in the Supreme Court. I think
    it is critical that we do that in cases where we have an
    interest so that the Court understands not simply what the
    Federal Government might think about an issue, but what States
    think about issues as independent sovereigns.
        Senator Cruz. What do the initials CVSG stand for at the
    Supreme Court?
        Solicitor General Fisher. That is for Calling for the Views
    of the Solicitor General, typically used with reference to the
    Solicitor General of the United States, but occasionally and I
    have seen in at least one circumstance where the Court has
    called for the views of the solicitor general of the State of
    Texas.
        Senator Cruz. The Supreme Court finds the views of amici
    helpful. It has a formal process to regularly call for the
    views of the United States solicitor general and, indeed, the
    United States Department of Justice is the most frequent amicus
    before the Court. The Court has also called for the views of
    the solicitor general at the State level as well, so the Court
    itself has recognized that amici can be important. Indeed, with
    some regularity, the Court allows amici to present oral
    argument. Is that correct?
        Solicitor General Fisher. That has happened in a number of
    instances, and, indeed, I can think of at least one instance
    where the Court invited a State to make an argument as an
    amicus. I think it finds that sort of input very valuable.
        Senator Cruz. General Fisher, I will note that when your
    office was defending the State of Indiana's photo ID law for
    voting, I was at the time SG of Texas and drafted an amicus for
    a number of States in support of Indiana's law. When that case
    went to the U.S. Supreme Court, the State of Indiana prevailed.
    The Court agreed with Indiana. The Court agreed with Texas and
    the other State amici and upheld the requirement of photo ID.
    The decision was 6-to-3. Justice John Paul Stevens, one of the
    most noted liberals on the Court, wrote the majority opinion
    upholding Indiana's photo ID law and explained that photo ID
    laws enhance the integrity of elections and protect the right
    of voters to cast legal votes and not have those votes diluted
    by illegal votes that are cast fraudulently. Is that right?
        Solicitor General Fisher. Yes, that is what the Court said,
    and we were grateful for the reasoning and the outcome and for
    the support of Texas' amicus in that case.
        Senator Cruz. Mr. Smith, it is good to see you as well.
        Mr. Smith. Good to see you, Senator.
        Senator Cruz. You have long experience as a litigator and
    Supreme Court advocate. What do you see as the role of amicus
    briefs before the Court?
        Mr. Smith. I am sure you know, Senator, I have filed many,
    many of them, and I think the Court finds them very helpful.
    Many of the ones I filed do, in fact, contain what you would
    call legislative facts for organizations like the American
    Psychological Association. I think the Court needs access to
    some facts like that. As Senator--Professor Larsen said in her
    written testimony, the Court draws lines between the people--
    the briefs it trusts and the briefs it does not trust a lot of
    the time.
        My concern is, though, when they pull facts out of the air
    that are not well supported, even by amicus briefs, and those
    facts end up being ossified and become kind of facts as a
    matter of law that all the other courts in America are forced
    to accept even if they are not true.
        Senator Cruz. I guess one of the more notorious examples of
    that would be Justice Blackmun's opinion in Roe v. Wade, which
    reads like, I think, a poorly written medical journal where he
    opines on a whole series of medical facts that we have since
    discovered many of which are incorrect. Would you agree that
    the majority opinion in Roe v. Wade included a whole lot of
    things stated as facts that are found nowhere in the trial
    court record?
        Mr. Smith. I am not an expert on that case, but it is
    certainly true that the opinion is very ``fact-y,'' to use Ms.
    Larsen's term, and there is considerable controversy about much
    of what Justice Blackmun said way back in 1973.
        Senator Cruz. Thank you very much.
        Chair Whitehouse. Thank you, Senator Cruz.
        Senator Hirono, my apologies for the mix-up.
        Senator Hirono. Thank you, Mr. Chairman.
        I do not see how anybody can look at either the Shelby
    County or, in fact, the Citizens United case and not come to
    the conclusion that, especially with regard to the Shelby
    County case, where there were thousands of developed testimony,
    thousands of pages and all of that, and suddenly the Supreme
    Court says, ``We do not care about all that.'' It is just
    astounding activism on the part of the Supreme Court.
        The same thing for Citizens United. What started off as a
    very narrow case on whether a 90-minute on-demand video should
    be deemed a corporate campaign advertisement suddenly gets to--
    the Court decides to treat it as a case that would determine
    the constitutionality of the Bipartisan Campaign Reform Act and
    the Court decides out the window. If that is not Court activism
    that undoes congressional actions, I really do not know what
    is.
        I have a question for Mr. Smith. Because the Court had no
    developed record on the expansion of the issue in Citizens
    United, Justice Kennedy authored an infamous quote in the
    majority opinion, and he said, quote, ``Independent
    expenditures, including those made by corporations, do not give
    rise to corruption or the appearance of corruption,'' end
    quote.
        Mr. Smith, can you explain what Justice Kennedy relied on
    in the factual record, which was sparse, to make this sweeping
    pronouncement? Are you aware of any foundation for the
    statement by the Court in Citizens United?
        Mr. Smith. Senator, thank you. There was no factual record
    in the Citizens United case because the case had not been
    argued as a facial challenge in the trial court. Essentially
    what Justice Kennedy did was two different things. First, he
    moved the goalposts by announcing what corruption means as only
    quid pro quo corruption. Then he basically used references back
    to cases involving other issues like the McConnell case or to
    the very tentative decision that the Court uttered in Buckley
    way back in the 1970s.
        What happens when they say that, it becomes a finding of
    fact that is unquestioned in all other courts, and so the
    Supreme Court needs to be very careful when they announce a
    factual conclusion that will end up deciding dozens and dozens
    of other cases and lead to things like single-candidate super
    PACs.
        Senator Hirono. Of course, and for Justice Kennedy to
    suddenly decide that the only kind of corruption is quid pro
    quo, where does he even get that? Where does he even come off
    saying that? If you know anything about real life, you know
    that nobody is going to--unless you are really stupid--say to a
    political person, ``I am going to give you this money in
    exchange for'' blank.
        Mr. Smith. This is the move the Court has made in the
    last----
        Senator Hirono. Yes, and that is why the people we put on
    the Supreme Court is really, really important.
        Okay. Here is a question for Professor Shaw. We had a
    Judiciary Committee hearing recently about all of these
    hundreds and hundreds of bills being considered and sometimes
    enacted by dozens of State legislatures that basically have the
    effect of limiting voting rights. Basically because we did not
    have an Attorney General--well, we do not have the relevant
    provisions of the Voting Rights Act that requires preclearance,
    there are going to have to be all these lawsuits. Ms. Ifill,
    who is the current president and director-counsel of the NAACP
    Legal Defense and Educational Fund, said that lawsuits are an
    imperfect and difficult means to enforce voting rights.
        Professor Shaw, would you agree that this is not the way
    that we should be enforcing voting rights--a really fundamental
    right, by the way, of citizenship?
        Professor Shaw. I agree that the--that lawsuits are an
    important way to enforce the right to vote. Section 5 had a
    prophylactic effect.
        Senator Hirono. Yes.
        Professor Shaw. The operating formula that was in section 4
    now has been lost, and so that protection has been lost, I hope
    temporarily, and the only thing that is left right now with
    respect to the Voting Rights Act are section 2 cases, which are
    very difficult to litigate.
        Senator Hirono. Yes, that is right.
        Professor Shaw. They are not proactive. They only look
    backward.
        Senator Hirono. Professor Shaw, you would agree that while
    litigation is always available, it is a very expensive and
    long--it takes a long time, you know, and that is really an
    inefficient way to protect people's voting rights. We all know
    what happened after Shelby County. I think 13 States
    immediately passed voter suppression legislation, and now that
    there are people out there who think that they have a 6-to-3
    majority on the Court to sustain all of these voter suppression
    laws, they are coming at us by the hundreds.
        Professor Shaw. Agreed.
        Senator Hirono. I seem to be running out of time. I could
    go on, but you get my drift. We have a 6-to-3 activist Court
    that is intent on pushing their ideological agenda on the rest
    of us.
        Thank you, Mr. Chairman.
        Chair Whitehouse. Thank you very much, Senator Hirono.
        Let me ask a few questions myself. Let me start with Mr.
    Smith and let me start on Citizens United, which, as it turned
    out, was a First Amendment case. As a general proposition,
    Congress cannot inhibit the exercise of people's First
    Amendment rights, but there is an exception, and that exception
    is where it would tend to produce corruption in the political
    arena.
        In order to create a First Amendment right to unlimited
    spending, it was not just convenient or helpful; it was
    actually logically essential to the decision to find a way
    around the problem of the role of money in political
    corruption. What that did was set up two facts found by Justice
    Kennedy's majority opinion as being really, really important
    ones. One was that the spending would be independent, i.e., I
    think the sort of general theory was ExxonMobil would buy TV
    time and run their ad and at the end of the ad say, ``We are
    ExxonMobil, and we approved this message.'' They would have had
    no contact whatsoever with the party or the campaign or the
    candidate who they were intervening to support.
        Let us just start with that. Mr. Smith, has that proved out
    to be the case?
        Mr. Smith. There is a great deal of illegal coordination
    that goes on between so-called independent expenditure super
    PAC and candidate campaigns, and it is often done just because
    you have a single-candidate super PAC and they sort of know
    what the candidate is all about. They can do this informally.
    There does not have to be any egregious coordination. The
    independence promise has proved to be a fiction in the world
    that has evolved as a direct result of the Court's
    pronouncement about independent expenditures not being
    corrupting.
        Chair Whitehouse. That is not a very close call. That is
    pretty obvious, isn't it?
        Mr. Smith. Yes, sir.
        Chair Whitehouse. With respect to transparency, which was
    the other predicate for the decision, that the public would
    always see who was spending the money, that we can absolutely
    guarantee is a false fact at this stage, can we not, with over
    a billion in anonymous money spent in elections since Citizens
    United?
        Mr. Smith. Yes, Senator. I believe it is pretty clear that
    the whole promise of disclosure being the panacea did not work
    out. Indeed, I believe, Senator, Justice Kennedy himself has
    acknowledged that it did not work out the way it was supposed
    to because there is a tremendous amount of dark money the
    system is awash with.
        Chair Whitehouse. Is it fair in terms of the analysis of
    Citizens United to say that if you remove the transparency and
    independency underpinnings, the factual findings upon which
    Justice Kennedy stood the proposition that there would not be
    corruption, and, therefore, money could be protected by the
    First Amendment, when you knock out those two predicates, the
    whole proposition falls, doesn't it? There is nothing left to
    sustain it. It could be corruption, therefore, it is not First
    Amendment, and Citizens United effectively vanishes as a
    decision.
        Mr. Smith. Right, it is all about finding a way to get rid
    of the State interest, the Government's interest in regulating
    these expenditures. If you take one piece away and the next
    piece away and you end up with the fact that there is no
    possibility of corruption as an assumption, then there is no
    basis under the First Amendment for continuing to regulate it.
    That is how we got there.
        Chair Whitehouse. Let me ask Professor Larsen to chime in
    on this as well, and then I will ask Mr. Smith also. What's--
    what is the remedy here?
        Professor Larsen. I think when the Court issues a decision
    based on a factual premise and then those facts turn out to be
    errant, the only remedy is for the Court to take the case back
    up again and change its mind, and then they have to go through
    a stare decisis rationale, too. Your question, I think, raises
    a heightened concern with cementing factual decisions into
    constitutional legal holdings, because they are very difficult
    to change. I might add----
        Chair Whitehouse. Yes, and, in fact, there is no rule of
    the Court that would allow anybody from the public or anybody
    from Congress or anybody to say, by the way, you guys, you
    stood a decision on this predicate fact; without this predicate
    fact, the decision effectively vanishes; the predicate fact is
    now proven indisputably wrong, and I seek withdrawal of the
    decision, I seek what? You end up in a situation in which a law
    of the United States declared by the United States Supreme
    Court that stands on a false factual premise is affecting the
    behavior of people, and in the case of Citizens United
    affecting the integrity of Government, and there is nobody
    anywhere in any of the branches of Government who has any power
    to do anything about it unless the Supreme Court acts
    presumably sua sponte. Is that correct? As long as they are
    going to get into this kind of fact-finding, should we put a
    rule in that allows for factual review of false facts when they
    are predicate facts that are operative to an important
    decision?
        Professor Larsen. I think Article III would require a case
    or controversy for that to get to the Court. I do think your
    question highlights the risks involved with errant fact-
    finding, and you can even look outside the Federal system after
    Citizens United to what happened in Montana where you get the
    factual premise of the legal holding being applied in a State
    system, and they thought that Citizens United was a case about
    facts, so they had a different factual record, and the Supreme
    Court summarily reversed it. There is a lot of confusion as to
    where the factual claim ends and the legal holding begins.
        Chair Whitehouse. In the case of Citizens United, it is as
    clear as a pile of bricks that, if you take out the bottom
    brick that says that there is going to be transparency and
    there is going to be independence, then the next brick above
    it, which is that that transparency and independence will
    protect against corruption, falls; and the brick above that,
    which is that, therefore, we do not need to worry about
    corruption and can push aside the State interest in regulating,
    falls; and the First Amendment protection for spending money
    then falls. I mean, in some cases these errant facts that you
    talk about are observations in passing. But in Citizens United
    and in Shelby, they were essential to the conclusion that the
    majority wanted to reach, were they not?
        Professor Larsen. Yes, I would call them premise facts.
        Chair Whitehouse. Call them what?
        Professor Larsen. Premise facts.
        Chair Whitehouse. Yes, I call them predicate facts, but I
    think we are in the same place.
        I think we need to start figuring out how we deal with
    premise facts or predicate facts that prove to be wrong, but
    that still support a legal doctrine out there. I do not know
    how we deal with that, but the idea that a ``zombie doctrine''
    whose underpinning factual predicate has collapsed can still
    walk the legal earth and demand conformance to it simply makes
    no sense whatsoever. From a separation-of-powers point of view,
    it is hard to see why a Chief Executive or a Congress should
    pay to the judicial branch of Government any deference at all
    when those situations have occurred.
        Let me turn to Professor Larsen and Mr. Smith for that.
        Professor Larsen. I will yield to Mr. Smith.
        Mr. Smith. It is certainly true that the real problem is
    that these findings of fact, when they form the basis of a
    decision, legislative facts, when they are done by the Supreme
    Court, almost take on the quality of being a legal ruling that
    binds every other court. How would you fix it? The only way to
    fix it is to file a lawsuit in trial court somewhere, lose,
    take it up on appeal, lose again, and then hope that the
    Supreme Court will look at the record you have made and see the
    errors of its ways. That is a very, very difficult and fraught
    path, and with respect to the cases we are talking about here,
    there does not seem to be much prospect that the Court would be
    willing to even entertain those kinds of arguments.
        Chair Whitehouse. If you are looking at a Court that is
    ambitious and activist, presumably that Court would like free
    rein to do as much of this premise fact-finding as it could
    get. If you had a truly conservative Court that was truly
    trying to cabin itself to a narrow judicial role consistent
    with the separation of powers, you would not see this problem
    happen very often because there is an easy way out, is there
    not? That is to refer the question of fact that you have
    concerns about--let us say in Shelby, Professor Smith, the
    question of fact--let us just say that despite 15,000 pages of
    evidence and a unanimous Senate, the Court still had
    reservations about whether or not things had really changed in
    the South and in the old preclearance States sufficiently that
    no minority voter need fear laws being passed to keep them away
    from the ballot. Let us suppose that they held that concern,
    notwithstanding the record in front of them. They would have a
    way to address that, would they not?
        Mr. Smith. I suppose the--they could send it--refer it to a
    trial court, remand it for some kind of a trial. My own view is
    those kinds of predictive facts about how a region of the
    country is going to behave if freed from the preclearance
    regime are best made by Congress.
        Chair Whitehouse. Yes.
        Mr. Smith. Those findings had already been made and ought
    to have been deferred to.
        Chair Whitehouse. Professor Shaw, if you had been given a
    warning by the Supreme Court that it was going to declare that
    all was well with respect to minority voting rights in
    preclearance States, or at least it had that concern, and the
    Court had then sent it back to a trial court to do the
    necessary fact-finding determinations to build the record, to
    bring in experts, to look at data, to have the parties able to
    make their case and summarize the evidence and try to put a
    solid factual predicate under the Court's finding, you would
    have engaged in that very energetically, would you not?
        Professor Shaw. Of course, but I think that is exactly what
    we did and what we had before Congress.
        Chair Whitehouse. Yes.
        Professor Shaw. Ordinarily there should be deference on the
    part of the Court on those kinds of judgments that Congress
    makes. There were all kinds of records of courts that were part
    of the record before Congress when it extended the Voting
    Rights Act. We knew--I want to underscore this again. We knew
    that this would be challenged, and we knew that there were
    those who were going to try to overturn the extension of the
    Voting Rights Act. We worked assiduously to make sure that the
    record had in it what it needed to have in it. I think Congress
    had everything it needed. I think the Court simply did not
    defer.
        Chair Whitehouse. Yes, and I guess my point was--I will
    turn to Senator Blumenthal very shortly. I guess my point was
    that if you were to assume the worst of the Shelby County
    majority and that they really wanted to knock out the
    preclearance thing, irrespective of facts, and were willing to
    make false factual findings to get there, had they followed the
    traditional process of an appellate court with a doubt about
    the facts sending the facts back to the trial court to complete
    or clarify the record, what they would have seen was this
    enormous record over here in the Senate and lawyers who would
    have brought that record into the trial court and said, ``Boom,
    here is our record.'' Then the trial court would have made the
    obvious finding of fact that there still was a problem. Now,
    the case would have come back up to the Supreme Court, only
    this time it would have had a bad judicial record and not just
    a bad congressional record. They had to ignore all sorts of
    record and just make up the fact that the day had changed in
    the South.
        Anyway, I will defer to Senator Blumenthal----
        Mr. Shapiro. Senator, could I clarify something about these
    thousands of pages of congressional findings?
        Chair Whitehouse. I cannot tell who is speaking.
        Mr. Shapiro. Shapiro.
        Chair Whitehouse. Let me get to Senator Blumenthal. It is
    his turn. I will let you come back at the end if you wish.
        Senator Blumenthal. Thank you so much, Senator Whitehouse.
    I really appreciate your having this hearing and also
    permitting me to be part of it, even though I am not a Member
    of the Subcommittee. I think this Subcommittee is one of the
    most important in the United States Senate, especially to any
    of us who have the privilege and honor of being part of
    litigation before the Court. I have argued four cases before
    the Supreme Court as attorney general of the State of
    Connecticut, and, of course, I have also been honored to be
    part of the amicus briefs that Senator Whitehouse has led so
    ably.
        Equally important for me was my experience clerking for
    Justice Blackmun on the Court, and I can remember numerous
    occasions we had breakfast every morning at 8 a.m., when I
    sought to argue facts to the Justice, only to be very politely
    but unceremoniously silenced because I was trying to persuade
    him to, in effect, go outside the record. Our fact-gathering
    methods were very, very limited. We considered the briefs. We
    read the record. We researched the underlying sources, and we
    consulted the books in the library. The reason was, in Justice
    Blackmun's view, that the facts coming before us from the
    record were the result of the adversarial process that tested
    the facts and the evidence and could be disputed below, but
    then found by the lower courts, the district court.
        Today we are an infinite world away from that time. Your
    research has found, Professor Larsen, that virtually all the
    Justices on the Supreme Court, no matter what their ideological
    persuasion, take advantage of the internet and conduct
    independent research online. You have written, quote, ``With
    this new tool come some new risks, the possibility of mistake,
    unfairness to the parties, and judicial enshrinement of biased
    data that can now be quickly posted to the world by anyone
    without cost,'' end quote.
        Just today, in two other Committees, one of them a
    Subcommittee of the Judiciary Committee, the other a
    Subcommittee of Commerce, which I Chaired this morning, the
    Subcommittee on Consumer Protection, the testimony was about
    misinformation, disinformation, distortion on the internet, in
    fact, often amplified by the algorithms that some of the tech
    platforms use.
        I am very, very worried about Judges or Justices relying on
    the internet as a supposed source of truth without anybody
    telling them that it is distorted or fabricated, in fact,
    fraudulent, as we showed this morning when it comes to some of
    the therapeutics, the preventive measures, some of them in
    effect the result of snake oil salesmen on the internet.
        I would like to ask you, Professor Larsen, can you
    elaborate on some of the risks of judicial fact-finding and,
    most important, what can be done about it? Is there room for a
    legislative solution that constrains these outside uses of data
    or information? Because, after all, we make rules of evidence,
    or the judicial branch recommends them and we are involved in
    them, and certainly that is a legislative function. Can we take
    steps to make sure that judicial fact-finding is limited to
    lower courts?
        Professor Larsen. Thank you for your question. I hate to
    say it, but I think you are right to be worried, and I have
    spent a lot of time worrying about that myself. It is not just
    that the facts are easy to access. As you say, it is that the
    facts are easy to manipulate, and the judges are human, and we
    all have a tendency to fall prey to confirmation bias. We
    believe what we want to believe, and there is a whole sea of
    factual information to comfort us into thinking we are right.
        The answer to your question, I think, is we have to inject
    some more adversarial testing into the process, and whether you
    want to do that below in the trial court and then defer to any
    sort of fact-finding that came through adversarial process,
    that is one avenue. Whether you want to encourage more
    disclosure rules at the U.S. Supreme Court so that when amicus
    briefs are making factual claims--maybe not when they are
    making policy claims, but when they are making an assertion of
    fact and the Justices will then rely on the brief itself as the
    authority for the factual claim, I think our adversarial system
    demands that that source, if it is a biased source, that that
    be disclosed.
        I do think there are things you can do as a legislature to
    improve fact-finding or at least to update the fact-finding to
    accommodate a new reality.
        Senator Blumenthal. If you present something to a court, if
    you are trying a case, as an officer of the court if you, in
    effect, present material that you know to be untrue, it is a
    violation of the oath and the duty to the court. That is not so
    when the internet provides platforms for deliberate lies and
    untruths. No one is held accountable. Under section 230, the
    tech platforms have total immunity. Even when we know that they
    are lying in ways that do immense harm, they still cannot be
    held accountable. I agree with you that we do need to think of
    other ways to impose accountability, if possible, through an
    adversarial fact-finding process. I think your point about
    disclosure is very well taken, that maybe more disclosure is
    part of the answer.
        I thank you, and I also thank the other witnesses, and
    thanks very much, Mr. Chairman.
        Chair Whitehouse. Thank you, Senator Blumenthal.
        Mr. Shapiro, you wanted to say something?
        Mr. Shapiro. Thank you, Mr. Chairman. There has just been a
    lot of talk about how the Court improperly did not defer to
    Congress, substituted its own facts for the hundreds of
    thousands of pages of record findings in Shelby County. The
    point is I think this goes to kind of how two sides are talking
    past each other, and that Judges are not supposed to defer to
    Congress on whether Congress has gone beyond its constitutional
    power. I do not think the Justices were disputing the findings
    of racial discrimination in that record. They were simply
    saying that as the Court unanimously ruled in 2009, that record
    did not sustain the burdens that were imposed based on the
    current needs. I could say more, but that is--thank you for
    indulging me.
        Chair Whitehouse. Yes, I get your point, but in separated
    powers, your fellow witness Solicitor General Fisher said that
    there are times when you actually have to rely on the elected
    branch, the legislative branch, to do certain things, even if
    you may not think it is right. It is just where the power lies
    in our separated powers, in the same way that I happen to know
    that the Citizens United fact-findings are wrong, but I do not
    have the ability to do much about it other than point it out.
        The Court took to itself the ability to ignore Congress,
    and it did so in an area in which it was under two
    disabilities: One, the Constitution specifically directs the
    issue of voting rights, you know, post-Civil War, to Congress,
    so there was a very clear allocation of responsibilities, more
    than just the general separation of powers. Two, we have all
    run for office. We have a pretty strong sense of how politics
    works, of how corruption can creep in. These Judges who have
    never run for anything and have not a clue--indeed, it is the
    first Court--when Justice O'Connor retired, it is the first
    Court in the history of the country in which nobody had a clue
    about actually running for office and about, as one author
    said, how a United States Senator ``is the focal point for evil
    and good attentions from many directions,'' and how you work
    your way through that, and how you build a system that protects
    against that, and how you particularly protect the right of
    people to vote, that core predicate.
        I hear what you have said, Mr. Shapiro, but I happen to
    think, first, that notwithstanding your point, the Court should
    have deferred to Congress on those fact-findings because it was
    pretty clear devolved to Congress to make them; and, second, if
    they did not want those fact-findings, if they thought there
    was a problem with it, there was something about the
    congressional process, the legislative process, that somehow we
    had done a poor job of finding those facts, that somehow it was
    slanted enough and 98 Senators were completely fooled by it,
    that they had a ready solution, which was to trust their own
    judicial branch of Government and say, look, we are not really
    convinced by this record that Congress developed, we want a
    judicial record where there is a real adversarial process,
    where witnesses get called in. Then they would have been a
    Court that would have looked through that record, and I very
    much suspect that the exact same conclusion would have come up.
    Whether I am right or not--I am confident that I am right that
    that is the way that this should have gone, because ab initio
    fact-finding on premise facts, predicate facts, that are the
    gateway to the decision that either--the decision they want
    either opens or closes, depending on that fact.
        I know you and I see the world very differently, Mr.
    Shapiro, but I have got to hope that we believe that if you
    took out the substantive question here, you and I would come to
    agree that courts are not the place where spontaneous fact-
    finding should be occurring, particularly not appellate courts
    and particularly not the Supreme Court. There are a gazillion
    ways for records to be brought to the Supreme Court that can
    lay out these facts. I think of all the possible ways in which
    facts can be developed by the Supreme Court, to have a small
    group of Justices with no expertise or experience, guided in
    some cases by amici with huge conflicts of interest, often
    undisclosed, to be just spontaneously making fact-findings
    about the way America is, the way these States are, the way
    these legislatures are, the way voting rights will be treated,
    how transparency and independence will carry the day through
    the dangers of corruption, all of these things, it just does
    not belong there, setting aside everything else. I would hope
    that we could at least agree on that point.
        The record will remain open for an additional week for
    anybody who has questions for the record or would like to
    supplement their testimony. This has been a lively and
    interesting debate, and I am grateful to all who participated.
        With that, the hearing is concluded. Thank you all.
        [Whereupon, at 4:38 p.m., the hearing was adjourned.]

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