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Academic highlight: Marietta and Farley on the Court’s reliance on social facts to decide constitutional cases

Do the Supreme Court’s constitutional cases turn on questions of law or fact? In Supreme Facts: The Prevalence and Justification of Social Facts in Landmark Decisions of the Supreme Court, political scientists Morgan Marietta and Tyler Farley examine that question. Marietta and Farley studied a hundred of the most important Supreme Court constitutional cases and discovered that 59 of the decisions turn in part on the Court’s view of “social facts.” The authors define “social facts” (also known as “legislative facts”) as generalized propositions about how the world works that are not specific to a particular case, such as whether sexual orientation is innate, or racial minorities continue to face obstacles to voting in southern states, or abortions are psychologically harmful to the women who get them. Their research suggests that such factual questions influence the Court as much as or more than the text of the Constitution and theories of constitutional interpretation, and yet the Court’s method of deciding these questions has received far less scrutiny.

Marietta and Farley generated a list of a hundred landmark constitutional cases decided between 1900 and 2015 by cross-referencing a number of books and querying constitutional scholars, and then looked to see how many of those cases turned in part on one or more social facts. As they acknowledge, determining which cases to include in the list, as well as which turn on social facts, is somewhat subjective, so they provide tables at the end of their article to enable interested readers to examine their data more closely. (However, the authors do not provide a list of the social facts identified in each case listed, which would have allowed more thorough analysis of their conclusions.)

Out of the hundred cases studied, Marietta and Farley found that 59 turned in part on at least one social fact. For example, in Obergefell v. Hodges, the Court concluded that sexual orientation is innate, in contrast to its earlier implicit assumption in Bowers v. Hardwick that homosexuality is a choice. The Court’s 2005 decision in Roper v. Simmons ending the death penalty for juveniles was grounded on the conclusion that teenagers are less culpable for their crimes than adults because their brains are still developing. Cases from early in the 20th century, such as Lochner v. New York and Wickard v. Filburn, relied on the Court’s understanding of the economic effects of government regulation. Most famously, in Brown v. Board of Education, the Court ruled that requiring or permitting separate educational facilities for African Americans violates the Constitution’s Equal Protection Clause because segregation is inherently demeaning, and therefore separate can never be equal. Marietta and Farley conclude that “[c]onstitutional principles interact with social facts to produce judicial decisions,” and that “a change in either component can be responsible for judicial evolution” (emphasis added).

If social facts play such a large role in legal decision-making, then it would helpful to know how the Court makes decisions about those facts. When deciding questions of law, the Court cites text, history, legislative history, precedent, and lower court opinion, and relies on rules of deference and theories of interpretation. The parties have a chance to argue these points in writing and at oral argument, and the Court’s opinion explains and justifies its view of the law at length. When it comes to social facts, however, the Court is far less systematic. Sometimes the Court relies on experts to support its conclusions, such as the psychologists cited in Brown or the doctors referenced in Roe v. Wade. The Court also defers to juries, public opinion polls, Congress, and state legislatures when making determinations about social facts. But Marietta and Farley found that two-thirds of the time the Court simply states or assumes a social fact as if it were the undisputed truth, without citation to an expert or other source.

Interestingly, social facts are not the monopoly of any particular judicial ideology. Marietta and Farley found that liberal and conservative decisions relied on social facts with similar frequency, and that justices sometimes presented dueling views of these facts in their separate opinions. For example, in Gonzales v. Carhart, the majority asserted that “some women come to regret their choice to abort the infant life they once created and sustained,” which can lead to “[s]evere depression and loss of esteem.” Justice Ruth Bader Ginsburg’s dissent sharply disputed that statement, claiming it was not based on “reliable evidence.” As this exchange illustrates, the justices’ disagreements on major constitutional issues such as abortion, affirmative action, and the death penalty may be due as much to their differing views of the facts as of the law.

Recommended Citation: Amanda Frost, Academic highlight: Marietta and Farley on the Court’s reliance on social facts to decide constitutional cases, SCOTUSblog (Sep. 20, 2016, 11:05 AM),