February 21, 2024

Whitehouse Details in Ohio State Law Journal Roberts Court’s Penchant for Judicial Activism Through False Fact-Finding

Whitehouse’s law review article highlights separation of powers problems with Republican appointees making up false facts to deliver victories for partisan interests


Washington, DC – The Ohio State Law Journal today published an article by U.S. Senator Sheldon Whitehouse (D-RI), Chair of the Senate Judiciary Courts Subcommittee, calling out the Supreme Court under Chief Justice Roberts’s tenure for embarking on improper fact-finding to deliver victories for partisan interests. 

Whitehouse’s article sheds light on the Court’s propensity for relying on extra-record – and often false – facts that lend advantage to partisan Republican or corporate special interests.  The article details bogus and uncorrected facts in Supreme Court decisions, relates their consequences in disrupting settled precedents, and explores actions the judicial and legislative branches could take to ensure the Court cleans up factual errors and kicks its fact-finding habit. 

“The Supreme Court has broken long-standing rules and practices as it forced its desired results on the American people.  One violation has been its pattern of false fact-finding, often contrary both to the record before it and factual findings of Congress.  Appellate courts should not engage in fact-finding at all, let alone false fact-finding,” Whitehouse said about the article.  “The Court’s persistent refusal to confront its factual errors once overwhelmingly proven false only makes the Court’s conduct more egregious.”

Whitehouse’s article, “Knights-Errant: The Roberts Court and Erroneous Fact-Finding,” joins a number of other works Whitehouse has published for legal and policy journals in recent years, as well as numerous Supreme Court and appellate amicus briefs of his own.

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 to support its 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.

“In both cases, the Court gutted bipartisan legislation, replacing Congress’s copious and meticulously compiled findings with its own extra-record fact-finding.  Similarly, it dodged around record facts in those cases.  In both decisions, the facts found were not just drive-by errors, but essential to the result the Court reached.  And in both cases, the facts were false,” wrote Whitehouse.  “The result of those decisions was rampant voter suppression and unlimited political spending by unaccountable special interests, to the immediate partisan benefit of Republican political interests.”

Whitehouse’s article finds the Roberts Court’s extra-record fact-finding rampage continued in the Court’s October 2021 term.  In a trio of cases dramatically altering Americans’ constitutional rights, the new 6-3 right-wing supermajority on the Roberts Court once again engaged in bogus, outcome-determinative fact-finding to the detriment of the public.

In Dobbs v. Jackson Women’s Health Organization and New York State Rifle & Pistol Association v. Bruen, the Court invented out of whole cloth a new test based on “history and tradition” to determine which constitutional protections should be recognized in modern-day America.  The Court used this new framework to cherry-pick historical facts—and, in some instances, to introduce facts that were false or out of context—that were not found or developed by the courts below.  The Supreme Court then cited those “facts” to support its decisions to take away women’s right to an abortion and to strike down commonsense gun laws.

“Dobbs and Bruen demonstrate that a motivated Supreme Court majority can build an imagined historic past of its own making, without the training and resources of professional historians, or any testing at trial and intermediate appeal, and manipulate the outcome of cases by manipulating the historical facts,” wrote Whitehouse.

In Kennedy v. Bremerton School District, the Court’s right-wing majority disregarded the district court’s factual record to favor a thoroughly debunked narrative spun by the plaintiff’s counsel, prompting a dissenting justice to include a photograph in her dissent.

“In Bremerton . . . the Supreme Court majority just made up its own adjudicative facts, despite the record below.  This signals a degree of boldness by the Republican-appointed justices in getting to their desired results—a degree of boldness that highlights the need to monitor and enforce all the guardrails designed to constrain them,” wrote Whitehouse.

Whitehouse’s article explains how the Supreme Court’s choice to find its own false facts threatens the balance between the co-equal branches of government and makes it easier for the justices to engage in judicial activism.  Whitehouse’s article also 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 unchecked judicial power for political purposes.  

“The American people deserve a Court that plays by the rules.  If the Court continues to play fast and loose with the facts to suit the outcome its Republican supermajority wants, Congress has tools to remedy the abuse,” concluded Whitehouse.  “Something needs to be done.  That something should start in the halls of Congress, and it should start now.”

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 numerous 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 is working to pass 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 also 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. 

Press Contact

Meaghan McCabe, (202) 224-2921