February 22, 2024

Tenth Episode of Making the Case Podcast Dives Deep into New Whitehouse Law Review Article on False Fact-Finding by the Roberts Court

Episode ten of Making the Case available now on Spotify and Apple


Washington, DC – U.S. Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, today released episode ten of his podcast, Making the Case.  In this latest episode, Whitehouse and Professor Allison Orr Larsen shed light on the Court’s propensity for relying on extra-record – and often false – facts, and how those false facts help to deliver decisions that advantage partisan Republican or corporate special interests.  Professor Larsen is a law professor at William and Mary Law School and an expert on fact-finding in the American judicial process.

“Americans deserve a Supreme Court that plays by the rules – not one that steamrolls longstanding legal practices to deliver victories for right-wing corporate interests.  The Roberts Court’s false fact-finding is yet another way this Court is eroding the public’s trust,” said Whitehouse.  “Tune in as we detail how the Roberts Court strayed far from the factual record in key cases, and read my latest in the Ohio State Law Journal for the full breakdown on the Court’s pattern of false fact-finding.”

The tenth episode of Making the Case is now available on Spotify, Apple Podcasts, and other podcast platforms.  Whitehouse’s law review article, entitled “Knights-Errant: The Roberts Court and Erroneous Fact-Finding,” highlights the separation of powers problems with Republican appointees making up false facts to deliver victories for partisan interests.

The federal adversarial system is designed to leave fact-finding to trial court judges who hear testimony, make credibility determinations, and review evidence submitted by the parties.  The Constitution also assigns Congress a fact-finding role as the policymaking body responsible for investigating and gathering facts about the issues it legislates on.  Appellate courts generally must defer to the factual record compiled by the lower courts or Congress, and they usually may not second-guess or alter that record.

The Roberts Court has increasingly departed from the record to indulge in free-range fact-finding that leads it to desired outcomes.  Whitehouse notes that in Shelby County v. Holder and Citizens United v. FEC, the Supreme Court disregarded factual records compiled both by Congress and the lower courts, which supported the bipartisan voting rights and campaign finance protections that the Court undid.  By replacing those facts with its own, the Court was able to overturn legislation and reach the preferred results of the right-wing justices. 

Whitehouse’s article finds the Roberts Court’s extra-record fact-finding pattern continued in the Court’s October 2021 term.  In Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen, the Court invented a new test based on “history and tradition” to determine which constitutional protections should be recognized in modern-day America — a test which opens a new arena to false fact-finding. 

Whitehouse’s article explains how the Supreme Court’s false fact-finding transgresses the balance between the co-equal branches of government, and makes it easier for the justices to engage in judicial policy-making.  Whitehouse’s article explores potential roles for academia, lower courts, and Congress in reining in the Court and defending the American people from an unelected, unaccountable Court willing to wield its power for political purposes.

Whitehouse has long been the Senate’s leading voice for improving transparency and accountability at the Supreme Court, delivering a series of speeches on the Senate floor about the special-interest scheme to remake the judicial branch.  Through his Courts Subcommittee, Whitehouse has held hearings on problems facing the federal judiciary, including an April 2021 hearing on how the Supreme Court’s false fact-finding has distorted American democracy.

Whitehouse wrote the Supreme Court Ethics, Recusal, and Transparency Act, which was voted out of the Senate Judiciary Committee in July 2023.  The bill would require the justices to adopt a code of conduct, create a mechanism to investigate and address alleged violations of the code of conduct and other laws, improve disclosure and transparency when a justice has a connection to a party or amicus before the Court, and require justices to explain their recusal decisions to the public.  Whitehouse has introduced legislation to revitalize Congress’s ability to legislate in response to Supreme Court decisions that interpret federal statutes or roll back constitutional rights.  The Senator has led the investigative efforts to get to the bottom of public reports about right-wing billionaires influencing the Court by providing secret, lavish gifts to justices.  Whitehouse has also crafted legislation to create term limits at the Court. 

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Meaghan McCabe, (202) 224-2921