There is a profound failing in the approach to law of the Supreme Court’s conservative supermajority. They do not much care about the facts of the cases before them, choosing instead to base their decisions on pure ideology.
The predictable results include the endorsement of religious coercion in public schools and ethnic profiling by federal agents.
In 2022, in Kennedy v. Bremerton School District, the Supreme Court ordered the reinstatement of a fired high school football coach who, according to Justice Neil Gorsuch’s majority opinion, had done nothing more than engage in a “short, private, personal prayer” on the 50-yard line after games.
Gorsuch’s description made it seem that overzealous school administrators had violated the coach’s First Amendment right to free exercise of his religion. The facts, easily found in the trial court record, were far different.
The district never objected to the coach’s private devotions. In reality, he led numerous students in public prayer, including opposing coaches and members of opposing teams.
Some students felt pressured into joining the prayer circle. One, an atheist, believed he “wouldn’t get to play as much” if he didn’t participate. Another “did not feel comfortable declining to join with the other players in Mr. Kennedy’s prayers.” Others “participated in the team prayers only because they did not wish to separate themselves from the team.”
Justice Sonia Sotomayor’s dissent called Gorsuch’s opinion a “misconstruction” of the factual record. The record shows he blew past findings that would have undermined his decision.
Earlier this month, in Noem v. Vasquez Perdomo, the Supreme Court allowed Immigration and Customs Enforcement agents in Los Angeles to conduct immigration sweeps based on individuals’ apparent race or ethnicity, foreign accents and low-income employment.
In a concurring opinion, Justice Brett Kavanaugh acknowledged that those criteria could also snag U.S. citizens. That was okay, he rationalized, because “the questioning in those circumstances is typically brief, and those 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.”
Once again, a conservative justice refused to heed the evidence, including instances of citizens who were not promptly freed and whose explanations of lawful status were not readily accepted.
In dissent, Sotomayor summarized the trial court record. Jason Gavidia, a Latino U.S. citizen, was detained by masked ICE agents who asked whether he is American at least three times. Gavidia repeatedly affirmed that he is, which did not satisfy the agents.
They asked him for the name of the hospital in which he was born. When he could not immediately recall, one agent “racked a rifle,” took Gavidia’s phone, “pushed [him] up against the metal gated fence, put [his] hands behind [his] back, and twisted [his] arm.”
Likewise, U.S. citizen Jorge Viramontes was questioned by immigration agents four times over nine days.
On the last occasion, after again rejecting Viramontes’s explanation, an officer “grabbed [his] arm,” escorted him to a vehicle, and drove him to a “warehouse area” for further questioning.
He was detained for another 20 minutes at the warehouse before the agents drove him back to work.
Kavanaugh had the information about these and other occurrences in the record, which he disregarded in his blithe dismissal of the detention of U.S. citizens who happen to look or sound Hispanic.
The justices’ aversion to fact-finding is so entrenched that it has even shown up in their literary efforts.
In her new book, “Listening to the Law: Reflections on the Court and Constitution,” Justice Amy Coney Barrett offers the story of King Solomon to show the difference between “doing justice,” which she considers the province of a biblical ruler, and applying the law, which is the duty of an American judge.
She gets it wrong, in a telling way.
In Chapter 3 of 1 Kings in the Hebrew Scripture, Solomon was called upon to settle a dispute between two women, both claiming the same baby. Solomon ordered the baby to be cut in half, knowing the true mother would give up her son rather than see him die.
To Justice Barrett, the story exemplifies Solomon’s reliance on wisdom “from within,” as opposed to “sources like laws passed by a legislature.”
American judges, in contrast, are bound by provisions in “the Constitution and legislation,” without consideration of abstract justice.
That is a significant misreading of the narrative.
Solomon was strictly applying the law, which required giving the baby to his mother. He was not free to award the child to the other women in pursuit of “justice,” even if he found her more deserving or fit.
Barrett missed the most crucial aspect of the story. Solomon was making a factual determination, which controlled his resolution of the case. Once he identified the true mother, he had no choice but to place the child in her custody. The facts mattered above all else.
While Barrett’s inapt analogy is benign, it is of a piece with her colleagues’ similar disdain for evidence. In far more consequential circumstances, they have glossed over, distorted and mischaracterized the facts found by trial judges, to justify their preferred outcomes.
No system of justice can survive without respect for accurate fact-finding. In ancient times, that was the role of kings. In today’s America, it is the job of trial courts. Barrett could not recognize that Solomon was sitting as a trier of fact in the disputed baby case.
Gorsuch and Kavanaugh had full access to the factual records in the Kennedy and Vasquez Perdomo cases, developed at length by trial judges, which they did not let get in the way of their favored results.
It does not take Solomonic wisdom to realize that something very wrong is happening at the Supreme Court.
Steven Lubet is the Williams Memorial Professor Emeritus at the Northwestern University Pritzker School of Law.
