Judging facts like law.

INTRODUCTION

The Supreme Court's review of legislative facts found by Congress can make all the difference between enjoying a constitutional right and losing it. The Court's recent decision in Gonzales v. Carhart (1) powerfully illustrates this point. There the Court in an opinion by Justice Kennedy held that women did not possess a right to a "partial birth" abortion, although six years previously in Stenberg v. Carhart (2) the Court held the opposite. According to Justice Kennedy, one of the two key differences between the current and prior case was that in Gonzales Congress had found that the practice was a "gruesome and inhuman procedure that is never medically necessary." (3)

The opinion, however, also underscores the peculiar and radically under-theorized nature of the treatment accorded congressional fact-finding. Justice Kennedy admitted that several of Congress' other findings about partial-birth abortions were factually incorrect. (4) The patent infirmity of many of Congress' fact assessments on the very subject under consideration raises obvious questions about why the Court should be influenced by any of Congress' other findings.

Second, the Court actually did not defer to the Congress' strong conclusion that partial-birth abortions were never medically necessary, but to the weaker implicit claim that it was at least uncertain whether partial-birth abortions were ever medically necessary. (5) The Court argued that this weak claim was all that was necessary to sustain the facial constitutionality of the statute because Congress should have the discretion to regulate abortion under conditions of medical uncertainty. (6) Thus, the Court reconstructed Congress' fact-finding before giving it weight.

Moreover, the opinion provides completely unconvincing support for its stance toward congressional fact-finding. Justice Kennedy cites precisely one case in his discussion of why the Court should give weight to congressional fact-findings but not simply accept them. The case is Crowell v. Benson, (7) a famous administrative law decision from seventy-seven years ago in which the Court considered the question of how to scrutinize facts for ascertaining that work had taken place in navigable waters--a premise that was necessary to establish that federal jurisdiction over the workmen's compensation claim was constitutional. (8) But in the relevant portion of that case the Crowell Court was reviewing an administrative agency's fact-finding, not Congress'. (9) Moreover, the Court held that the findings necessary to establish the constitutional authority to extend federal jurisdiction were subject to the federal judiciary's de novo review, not a review with any degree of deference. (10) The current Court's citation of such a manifestly inapposite case highlights that it still has no coherent theory of the judicial role in cases where Congress has found social facts to support to the constitutionality of its legislation.

This article responds to the Court's confusion about fact-finding in the partial-birth abortion case by offering a comprehensive view of how the Court should treat legislative views of social facts, such as the medical need for partial-birth abortions, which provide an essential foundation for the constitutionality of legislation. We reject the notion, which the Court often but inconsistently deploys, that the judiciary should treat legislative views of the facts more deferentially than legislative views of the law.

Displacing the judiciary from an independent, de novo fact-finding role must depend either on the argument that law is inherently different from fact or that Congress has a greater comparative advantage vis-a-vis the judiciary in finding social facts than in assessing the law. Neither is supportable. There is no analytic dichotomy between law and fact. Law is a social fact, just as are the data or statistical analysis that may be relevant to questions such as whether partial abortions are ever medically necessary.