In the New York Times yesterday John Pfaff reflected on a serious problem at the Supreme Court. Increasingly its opinions rely on statements of facts that are later determined not to be true. And Professor Pfaff is also right that the Court as institution is not well designed to find facts. He notes correctly that opinions often rely for their assertions on amicus briefs of experts. But the obvious problem is that these briefs are generally pieces of advocacy seeking a particular result.
Unfortunately, his solution of creating a technical body of advisers to the Court for sorting out factual determinations is unwise. Experts can also make mistakes and in some areas have strong partisan and methodological biases. They would also necessarily work in secret.
Chip Mulaney and I have argued for a different solution: unless the facts on which a holding turns are obvious, stipulated, or reflect an adversarial process below, the Court should remand the case for factual findings by a trial court. It could then choose to hear any relevant parts of the case again on a full factual record.