25 Jan 2018
Professor Eric Berger’s article When Facts Don’t Matter was published in the BYU Law Review.
The article studies the Roberts Court’s penchant for brushing aside inconvenient facts in some high-profile constitutional cases. Using three prominent decisions as case studies, it argues that a majority of Justices too often rely on novel constitutional doctrine to dismiss congressional findings and other facts. This collective disdain for facts muddles constitutional law, aggrandizes the judiciary, and privileges ideology over evidence. Of course, the relevance of particular facts is ultimately a legal question, so the Court clearly enjoys the prerogative to determine which findings have constitutional salience. That said, the Court still owes Congress and the country a more careful explanation when it deems irrelevant the very facts that prompted legislative action in the first place.