[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
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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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