Brent Ferguson has posted this draft on SSRN (forthcoming, Washington Law Review). Here is the abstract:
A substantial portion of constitutional law rests on untested factual predictions made by the Supreme Court. Such forecasts have played a large role in a wide range of case outcomes, helping the Court decide questions such as whether corporations have the right to spend money on elections and what evidence may be used in criminal cases despite Fourth Amendment violations.
Scholars have not yet studied the frequency of such predictions, the problems they create, or the functions they serve. The literature has looked more closely at court decisions that depend on conclusions of legislative fact — facts not specific to a certain plaintiff or defendant but concerning the world more generally, such as the finding in Buckley v. Valeo that independent campaign spending does not create a corruption threat because it is relatively unhelpful to candidates. And after scholars began to recognize how important such factual conclusions were, courts increased their reliance empirical evidence when declaring legislative facts. But this Article contends that the Supreme Court has often circumvented the pressure to rely on evidence by recharacterizing its factual conclusions as predictions. Thus, for instance, rather than conclude that a longstanding law regulating newspapers has discouraged political discussion, the Court has simply asserted that the law would discourage such discussion if it were upheld. And rather than conclude that minority viewpoints are sufficiently represented on juries even in states with no jury unanimity requirement, the Court has predicted that minority viewpoints will be heard even without the unanimity rule. By deciding cases in this manner, the Court has made predictions that operate as if they are legislative facts even when it performs no factual inquiry.
The Article first looks closely at a set of cases in which such predictive factfinding has occurred, including those in which a law has existed for decades, but the Court has not asked whether there is existing evidence that the predicted outcome has happened. While conceding that predictive judgments are necessarily implicated in many cases, the Article nonetheless insists that the Court should approach those judgments cautiously. That is because the Court’s predictions are frequently incorrect, and they can create factual precedent by enshrining erroneous conclusions into law that lower courts adhere to even if facts change or the prediction is proven incorrect. Further, making unsupported predictions threatens the adversarial system because predictions are often made by amici or judges rather than the parties to a case. Finally, the prevalence of unsupported predictions may be undermining the judiciary’s legitimacy.
The Court can start to remedy the problem by recognizing its existence and avoiding unnecessary predictions. When predictions are unavoidable, the Supreme Court and lower courts can try to improve the accuracy of their forecasts, consider remanding the case for more factual development, or issue a provisional decision that would encourage future litigation if a prediction turns out to be incorrect.