Just the facts?

Civil Rights and Wrongs is a recurring series by Daniel Harawa covering criminal justice and civil rights cases before the court.

Please note that the views of outside contributors do not reflect the official opinions of SCOTUSblog or its staff.

The conventional wisdom goes that the Supreme Court decides questions, not cases. Put differently, the justices’ role is usually to answer the larger legal questions raised by a case, not to dwell on the factual issues which gave rise to the case itself.

As a general rule, litigants present issues of fact to the trial court. The trial judge sifts through this evidence, resolves conflicts, issues factual findings, and renders legal rulings. The appellate court reviews those legal rulings, leaving untouched the trial court’s factual findings unless it concludes that those findings were “clearly erroneous.” In other words, by the time a case gets to the Supreme Court, the facts are supposed to be settled.

Increasingly, this seems not to be the case. 

Let’s begin with the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District. The question there was whether a Washington school district violated the First Amendment when it disciplined a football coach, Joseph Kennedy, for praying on the field after games. In holding that it had, the court’s majority opinion, written by Justice Neil Gorsuch, framed the facts as Kennedy doing nothing more than “offer[ing] a quiet prayer of thanks … while his students were otherwise occupied.” In the majority’s telling, Kennedy was punished only for his private religious expression.

But that serene image of a lone man praying in silence stood in stark contrast to what the dissent said, and to what the district court found happened. In her dissent, Justice Sonia Sotomayor, with pictures to boot, explained that the record “tells a different story” from that told by the majority. Indeed, as the U.S. Court of Appeals for the 9th Circuit explained when affirming the district court’s conclusion that the school district did not violate Kennedy’s First Amendment rights, “the facts in the record utterly belie his contention that the prayer was personal and private.”

The back-and-forth in Kennedy was salacious, in part because the dissent’s use of pictures seemed to paint the majority’s portrayal of the facts as, well, counterfactual. But increasingly, we see justices accuse each other of ignoring – if not outright inventing – the facts.

Take Mahmoud v. Taylor from the 2024-25 term, in which the court held that parents have the right to opt their children out of public-school classroom instruction that they believe conflicts with their religious beliefs – here, a curriculum that included LGBT-inclusive books. With pictures of the offending books appended to both the majority and dissenting opinions, Sotomayor asserted that the “full record reveals a starkly different reality” than the one painted by Justice Samuel Alito’s majority opinion.

Or consider an example from the term before. In Alexander v. South Carolina State Conference of the NAACP, the court reversed a lower-court finding that South Carolina’s congressional map had been racially gerrymandered. Justice Elena Kagan’s dissent accused Alito’s majority opinion of “betray[ing] its distance from, and lack of familiarity with, the events and evidence central to [the] case.”

And then there’s Noem v. Vasquez Perdomo, a recent shadow docket case involving immigration raids in Los Angeles, in which federal officials conceded that they use race and ethnicity as a factor in deciding whom to stop. The justices who voted to pause the district court decision enjoining the government’s policing practices did not explain their votes, except for Justice Brett Kavanaugh, who wrote a concurring opinion explaining why he thought the stay was warranted. In so doing, Kavanaugh characterized these “immigration stops” as “typically brief,” in which “individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States.”

As Sotomayor retorted in her sharp dissent, Kavanaugh’s casting of such immigration stops “blinks reality.” Sotomayor noted that “[t]wo plaintiffs in this very case tried to explain that they are U.S. citizens; one was then pushed against a fence with his arms twisted behind his back, and the other was taken away from his job to a warehouse for further questioning.”

To be fair, appellate judges disagreeing over facts is not new. As a law review article published in 1983 remarked: “It is not uncommon to find judges disagreeing, at times vehemently, about constitutional facts. Even (or perhaps especially) at so lofty a level as the Supreme Court.” But failing to agree upon the most basic facts, as we are now seeing on the court, can have serious cascading consequences.

First, every time the court ignores – or is perceived to be ignoring – the facts, it signals a lack of respect for the lower courts and their vital role in the judiciary. Trial judges labor mightily to build detailed factual records – hearing witnesses, weighing credibility, and assembling findings, which can span hundreds of pages – that give shape to the law’s application. When justices brush aside or recast those facts without explanation, it suggests those efforts are at least partly irrelevant. The signal may also send the message that meticulous fact-finding is less important than crafting a narrative that fits a chosen outcome. And we know it is dispiriting, as lower court judges are publicly voicing their frustration with how the Supreme Court is handling their work.

Second, when the court appears to be deciding questions untethered from the facts of a particular case, it feeds the growing perception that its decisions are driven by ideology rather than law. If the facts in an opinion are unrecognizable when compared to the facts on the ground and to the public, these factual discrepancies risk sowing deep distrust in the court. Return to Vasquez Perdomo. As videos proliferate of federal law enforcement violently seizing people, and horror stories abound of federal officials illegally detaining citizens for hours if not days, these incidents have now been labeled by some as “Kavanaugh stops.” Whatever one cares for the people who fall victim to this violence (and they should care mightily), this phenomenon cannot be good for an institution that depends on public confidence for its legitimacy. When the court’s decision-making appears detached from reality, every future decision risks being viewed not as the product of judicial judgment, but partisan preference.

Third, it leaves lawyers – those charged with building factual records – in limbo. Lawyers rely on the assumption that facts established below will remain fixed on appeal. If the Supreme Court feels free to reconstruct those facts or to overlook them entirely, the incentive to invest in developing a robust evidentiary record weakens. That uncertainty undermines the very point of appellate review. What’s more, as law professor and civil rights attorney Sherrilyn Ifill has explained, “For civil rights lawyers, trials are essential tools of education.” If judges no longer pay attention to the facts, they risk building a legal edifice that is ignorant of the world around them.

The Supreme Court’s authority rests on its willingness to decide questions of law within the boundaries of the record before it. If those boundaries dissolve, so too does the distinction between deciding questions and deciding cases – and with it, the credibility of a court that insists it is guided by law, not agenda. If even Supreme Court justices cannot agree on what happened in the cases before them, how can the public have confidence that law constrains power at all? In a political culture already riven by misinformation and mistrust, a court that seems to treat facts as an inconvenience invites the same cynicism that has infected other institutions.