There Are Facts, and Then There Are Constitutional Facts
Reading some of the commentary about Judge Walker’s decision on Prop 8, you get the sense that the good Judge has fortified his analysis with a factual record. Marc Ambinder, a new setter of the conventional wisdom, lists several such facts and exclaims: “Remember, these are the FACTS that Walker has determined from the testimony and evidence. These facts will serve as the grounding for the legal arguments yet to come.” This view seems to be based on the traditional rule that appellate courts won’t disturb trial court factual findings without pretty good reasons.
But there are facts, and then there are constitutional facts. Almost every “fact” identified by Judge Walker is of the latter type — “Sexual orientation is a fundamental characteristic of a human being.”; “marriage is widely regarded as the definitive expression of love and commitment in the United States.”; “permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages”, etc. It is exceedingly unlikely that any appellate judge or Supreme Court Justice would feel compelled to defer to these factual judgments. That’s just not how constitutional empiricism seems to work. Nor, in my view, should it work that way. Why would Judge Walker have any special expertise at figuring out these tough questions about the social consequences of legal change? And stepping back, the ordinary case for deference to factual findings is built around two intuitions: (1) that the trial judge can smell liars; and (2) that the appellate court doesn’t have the time to review everything, so it should focus on legal issues apparent on the cold record. The first intuition has always struck me as pretty weak, and the second obviously loses force in big cases.
None of this commits me to any view on what Anthony Kennedy the Supreme Court will do in 2012 when it hears the case. All I know is that constitutional facts are special. Heck, isn’t that what Scott so vividly illustrated?
[Update: Orin seems to agree.]