Mr. President, I am back today for the 29th time on my ‘‘scheme’’ series to explain to the American people how the rightwing managed to capture the Supreme Court. Today, I would like to discuss the scheme’s deliverables—how the Court rewarded its big donors with favorable outcomes that benefited partisan Republican or corporate interests and, particularly today, how the Roberts Court used false facts to produce decisions like Shelby County and Citizens United.
This speech is the short form. For the full analysis or the long form, you can read my recently published law review article in the Ohio State Law Journal, 84 Ohio St. L.J. 837 (2023).
False fact-finding is the trick that has enabled the Court to do a lot of damage in recent years. Let’s start with some basic principles about how fact-finding is supposed to work in the American judicial system.
Facts are an important part of every case, and it matters to get them right, and it also matters that courts stay within their constitutional boundaries. To achieve those two purposes, the American system has facts ascertained at the trial court level—the trial court level.
First, the trial judge is closest to the facts on the ground. That is where the evidence comes in. That is where each party can challenge each other’s facts, where facts receive robust adversarial scrutiny. That is where the judge can evaluate credibility and dedicate the time to compiling a robust factual record. In all of this, one key point is that the judge relies on the parties to bring the facts to the court.
With only limited exceptions, a court isn’t supposed to venture off looking for its own facts. Once the trial court makes its decision and assembles its record of the facts, that record travels with the case when a party appeals to a higher court.
As to facts, an appellate court is not supposed to find its own; it is supposed to give the lower court a lot of deference. A lower court’s fact-finding can usually be overturned only if there was what is called clear error—a very hard standard to meet, as any lawyer will tell you. Even after a clear error finding, the ordinary rule is that the case is remanded back to the trial court for whatever further fact-finding is required to comply with the appellate court’s edict.
These rules make our system honest and efficient. They allow robust challenge to the facts at trial but deference to the judge’s findings on appeal. They do not set appellate courts up as factfinders. Appellate courts focus on questions of law using the record established by the trial court. These fact-finding rules also protect our American separation of powers. Under the Constitution, courts are limited to deciding only what the Constitution calls ‘‘cases or controversies.’’
By obvious implication, that means actual cases or controversies with their actual facts. Without that, judges could make decisions based on hypothetical facts—in effect, offer unconstitutional advisory opinions. A court can’t honor the Constitution’s case or controversy requirement without cabining its decision to the actual facts of the case or controversy and to this established fact-finding process. If that limitation did not exist, appellate judges could become, as one famous judge warned, ‘‘a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.’’
One other fact-finding body needs to be mentioned, and that is Congress. Congress is the Constitution’s policymaking body—that is our job—not because we are geniuses but because if our ideals of beauty or of goodness don’t match the public’s, the public can throw us out. That is democracy. The democratic process provides the public protection.
Congress has its own fact-finding authority under the Constitution. We often find facts ourselves, creating a legislative record—not the trial record of a trial court, a legislative record of the proceedings leading to a bill. This fact-finding authority merits deference from courts—again, not because we are smarter, but because we are correctible through democratic process.
Which brings us to the mischief at the Roberts Court. For more than a decade now, the Roberts Court has violated these basic principles, replacing facts found by Congress and facts found by lower courts with fake facts that they made up on their own—fake facts that over and over just happen to suit the big donors who put so many Republican-appointed Justices on the Supreme Court.
Shelby County and Citizens United— both of those decisions—stood upon falsehoods presented as facts. These weren’t just drive-by errors in passing, of no moment; these were false factual findings that were essential to prop up the logic of the Court’s holdings. No false facts; no desired outcome. Tellingly, even after events thoroughly disproved the false facts, the Republican Supreme Court refused to correct its mistakes, and so these faulty decisions founded on false facts live on like zombies plaguing our democracy.
Let me talk about those two cases because they are probably the worst examples. In Shelby County, the Supreme Court said that the most important part of the Voting Rights Act—the part that required States with a history of racist voter suppression to get clearance before new voting laws went into effect— was no longer justified. That part of the law was just no longer justified because ‘‘things had changed.’’ According to Chief Justice Roberts, conditions in those States had improved so much that Congress should no longer screen their laws for racist voter suppression.
That false fact was key to the analysis overturning this part of the Voting Rights Act, but there was no record support for that false fact. It just popped out of the heads of the Justices who wrote that decision. In actuality, in Shelby County, Congress had compiled thousands of pages of evidence, a record of facts collected through extensive hearings and research regarding the danger of minority voter suppression in those so-called preclearance States. The Court ignored that.
Worse still, preclearance States, no longer subject to these Voting Rights Act protections, immediately proved that the dangers that the Court said weren’t there were, in fact, there, that these dangers were true, moving immediately to enact laws that targeted minority voters ‘‘with almost surgical precision,’’ as one court put it. Despite the evidence before and after disproving the Court’s so-called finding in Shelby County that everything was OK now, the Roberts Court has refused to budge, leaving that zombie decision in place.
The trick was even clearer in Citizens United. The bipartisan campaign finance law at issue was supported again by a robust congressional, factual record. Congress had held hearings, gathered firsthand accounts, and wrote lengthy reports on the problems plaguing our campaign finance system. Lower courts had also assembled similar records with evidence of these problems, many of which suggested corruption.
All of that was ignored.
The Republican-appointed Justices in Citizens United had a problem. Congress gets to legislate to protect the integrity of elections. We get to legislate to protect elections from either corruption or the appearance of corruption. So to get around that—to keep Congress out of protecting the integrity of our elections—the Justices had to come up with a way of arguing that unlimited political spending in politics wouldn’t and, indeed, couldn’t harm election integrity. They had to manufacture that finding to subvert Congress’ power, and to get there, they had to make two factual findings.
First, they argued that there was no risk of corruption or even the appearance of corruption because all this new spending they were going to unleash would be independent—independent— from the campaigns the spending was supporting. Well, that has been proven abundantly false.
Even more obviously, they said that all this new political spending they were unleashing would be transparent—not just independent but also transparent. The voters would know who was behind the big, unlimited political spending and could make their decisions accordingly; and therefore, the danger of corruption was lifted by the fact that the voters would know whose money was behind the ads.
Well, folks, it is non-debatable that that fact is false. Partisan billionaires and corporate special interests have spent billions in dark money. This is so widely reported and incontestable that an honest court could probably even take judicial notice of the billions in nontransparent and, therefore, corrupting political spending.
A lot of this money is supposedly independent, but in reality, the groups that spend it use all sorts of well-documented loopholes to coordinate with candidates and campaigns right in broad daylight.
The tsunami of dark money that Citizens United unleashed has, as predicted, corrupted our democracy. The Court didn’t have to wait for the newspaper to know that the facts it found were false.
Shortly after Citizens United, a State campaign finance case came to the Supreme Court from Montana. The Montana Supreme Court upheld a 100-year old State campaign finance law on the basis of an extensive factual record about the history of campaign corruption specific to Montana.
John McCain and I submitted a bipartisan brief to the Supreme Court in that case. Our brief pointed out the factual falsity of the Citizens United decision—that the spending was not independent; that the spending was not transparent; and, therefore, those factual predicates of Citizens United failed, and the decision should fall.
Not only did the Republican-appointed Justices summarily reverse the Montana Supreme Court, not even allowing oral argument where, perhaps, this false fact-finding might have been pointed out, the Court did so on the grounds that the Montana decision was inconsistent with Citizens United—no mention of the problem that Citizens United was inconsistent with the truth. Talk about a zombie decision.
Since then, the Court has stubbornly refused to reexamine its false facts despite several billion instances of disproof of the transparency of the funding. Worse, a couple of terms ago, these Federalist Society Justices started paving the way even for a constitutional right to spend dark money.
The billionaire rightwing donors who packed the Court did very well by these two decisions—by Shelby County and Citizens United. The suppression of minority voters across the South post-Shelby County likely flipped some elections to the Republican Party. The flood of dark money by billionaires and corporate interests was, for years, essentially entirely dedicated to funding Republicans in elections.
If you want a specific example of corruption, look at how fossil fuel industry dark money has, since Citizens United, stopped Congress from passing any serious bipartisan climate legislation. I was here in 2007, 2008, and 2009 when climate legislation was very current in the Senate and very bipartisan—three or four major bills being worked on, strong bills, that would have helped solve the climate problem. Then came January of 2010, that date of infamy when Citizens United was decided.
Since then, that is it—no serious bipartisan climate bill. These cases happened because the Court disregarded rules about proper fact-finding, ignored mountains of evidence that Congress and that lower courts had assembled, and made up facts—just made up their own facts— that helped them strike down the laws, delivering those big wins for Republican donor political interests.
This free-range fact-finding problem at the Court is going to get worse after the Court’s recent move in cases like Dobbs and Bruen to base constitutional decisions under their new theory of history and tradition. This new theory opens whole new fields to judicial fact-finding knight-errantry, cherry-picking historical facts to get the outcomes that they want to reach.
Dobbs, the case that overruled Roe v. Wade, stood on dubious historical sources—like a 1600s treatise by someone who sentenced accused witches to death and defended marital rape—to subject women’s reproductive autonomy to the whims of State legislatures.
Bruen, the guns case, stood on an NRA-funded version of history that one historian called an ‘‘ideological fantasy’’ to put the proliferation of guns on our streets behind constitutional protection. When the Supreme Court goes on these last-minute, no-argument, ‘‘made it up in our chambers,’’ ‘‘no chance of correction’’ fact-finding expeditions, there is no one to tell them: Hey, you got some stuff wrong. There is no one else the parties can appeal to.
The factual errors slipped in at the end are protected from correction, and then the zombie cases march on.
I wrote my law review article because this fact-finding trickery hasn’t gotten the attention it deserves either here in Congress or by professors and judges.
There is no shortage of mess to clean up at the Supreme Court, whether it is the Court’s ethics crisis or the phony front group amici curiae, who often show up to offer those false facts to the Court without any transparency or vetting themselves. My Supreme Court Ethics, Recusal, and Transparency Act would clean up a lot of the mess.
But even if we passed that law and it helped clean up the ethics mess and even if we managed to unpack the Court that dark money built, these zombie decisions standing on false facts would remain effectual unless— unless—we have the legal theory to address them. My article proposes one way to scrub away these tainted decisions—by returning to the historic, basic, well-established fact-finding principles of the American system of justice.
Why should we in Congress not confront the false facts of this stubbornly wrong Court? Why should lower court judges be expected to blindly adopt false facts that never went through proper fact-finding procedures? Why should Congress honor decisions that are, on their face, founded on false facts?
Remember in Marbury v. Madison that the Supreme Court famously gets to say what the law is, but it is not the last word on what the facts are. Nothing in the Constitution says: We in Congress have to pretend that we really live in the alternative bizarro world of the Supreme Court’s false facts. Congress need not be an idiot and accept rulings that we plainly see could not stand without indisputably false facts propping them up.
The fact that the Supreme Court won’t go back and clean up its false facts mess should not disable us from addressing the zombie decisions. If this requires circumscribing the Court’s authority, as far as I am concerned, too bad. Better that than to have citizens have to obey flawed decisions founded on false facts just because the Court liked who the winners were.
This should not even be an issue. These fact-finding rules have stood for centuries. It is only this politically driven Court that has stepped outside the bounds of history and tradition to go on these false fact-finding galivants that have no proper role in judicial fact-finding and that violate the boundaries of separation of powers. Reining it back in, in that circumstance, is a proper response, and if the Court doesn’t like this, I would say: Heal thyself; quit breaking the historic process of fact-finding, and quit finding obviously false facts, and go back and clean up those false-fact decisions. That is one option.
They could do it, but, of course, the Federalist Society Justices won’t because this is a captured Court, and the false fact outcomes are the outcomes the billionaires who pack the Court want.
To be continued. I yield the floor.
