Should District Judges Appoint Historians as Neutral Experts? The Legislative Fact Problem

by Michael C. Dorf

Here on the blog last week, Professor Segall's critique of originalism referred to a recent order issued by U.S. District Judge Carlton W. Reeves in a case presenting the question whether the federal proscription of possession of firearms by felons unconstitutionally infringes the Second Amendment. Judge Reeves asked the parties to address the question whether to appoint a historian as a "consulting expert" to provide objective evidence.

Arguably Judge Reeves was simply trolling the Supreme Court. Consider that his explanation for why he felt ill-equipped to perform the historical analysis demanded by Justice Thomas's majority opinion in NYS Rifle & Pistol v. Bruen relied chiefly on Justice Breyer's dissent in that case. Judge Reeves pointedly added that judges "are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791." Zing!

Whether or not Judge Reeves was just trolling Justice Thomas, his question raises an important issue that the Supreme Court has, so far as I can tell, never resolved: how to resolve questions of what lawyers call "legislative fact." In today's post, I'll sketch the problem and discuss a solution proposed in the leading scholarly treatment of it--a 2016 article by NYU Law Professor Kenji Yoshino in the William & Mary Law Review.

Let's start with the basics. Consider a garden-variety civil or criminal case in which the parties dispute the facts but not the law. For concreteness, suppose the question is whether the defendant was in fact the person seen by an eyewitness, who so testifies. Imagine that the defendant puts on an alibi witness--his mother, who says he was with her watching television at the critical time. The finder of fact (whether a jury or judge) must weigh the evidence. Is the eyewitness credible? Might the eyewitness be mistaken? Is the mother lying (as one might lie to benefit one's son)? Etc. Whatever conclusion the finder of fact reaches will be upheld (by the trial judge and reviewing courts in the case of a jury / by reviewing courts in the case of a bench trial in which the trial judge is the finder of fact) unless the conclusion is "clearly erroneous." This deferential standard of review is uncontroversially applied with respect to such adjudicative facts.

Yet some cases turn on other kinds of facts. For now, let's stick with Second Amendment cases. The Court has said that Second Amendment protection extends to weapons that are "in common use" for self-defense. Are semi-automatic rifles "in common use?" That is partly a legal question--what counts as common use?--but it also calls for a factual inquiry: how many semi-automatic weapons are in private hands for self-defense? The question of how many semi-automatic rifles Americans own is a question of fact, but it's not a question involving any particular case. Rather, it's a factual question the answer to which will determine the answer to a legal question. It is a question of legislative fact.

Admittedly, "legislative" fact is a confusing term. It suggests that Congress or a state legislature gets to determine it. While that could be true in some circumstances, that's not part of the meaning of the term "legislative fact." The term simply means a fact the answer to which goes into answering a legal question that transcends any particular case or cases. How many semi-automatic rifles Americans own is a question of legislative fact.

Now the problem. If a reviewing court reviews trial court determinations of legislative fact under the "clear error" standard it applies with respect to adjudicative facts, it potentially invites chaos. Suppose that cases in federal district courts in New York and California both present the issue whether semi-automatic rifles are in common use. The parties in both cases present evidence. The district judges in the two cases reach different conclusions. Neither conclusion is clearly erroneous. The cases both reach the Supreme Court. Which figure--the one from the case originating in New York or the one from the case originating in California--should the Court accept?

Readers might think: Oh, that's easy. They'll accept whichever figure supports the result they want to reach. And readers would be right! But they'd be even more right than they realize. Because the Justices might simply say that questions of legislative fact call for no deference; they should be treated like questions of law that the Court gets to decide de novo.

But how is that supposed to work? Questions of legislative fact are questions of fact, after all. Yet the Supreme Court doesn't take evidence. As Professor Yoshino explains, non-deferential review of questions of fact, including questions of legislative fact, fits very poorly with the respective expertises of trial courts and reviewing courts.

Thus, Professor Yoshino notes how the Supreme Court has ducked the issue. More arrestingly, he shows how individual Justices have been inconsistent--arguing for de novo review of district court findings of adjudicative facts that contradict their ideological priors but for deferential review of district court findings that reinforce those priors. Professor Yoshino then suggests an intermediate standard--what he calls a "significant weight" standard that depends on how thorough the district court's fact-finding process was and also on whether there have been contrary findings by other courts. 

Professor Yoshino's solution would be an improvement on the status quo, but I think it unlikely the Court will adopt it. The Justices have been aware of the uncertainty surrounding the proper standard for reviewing findings of legislative fact for decades, without moving to address the issue.

Meanwhile, the Court's recent turn to history will exacerbate the problem.

To be sure, the historical inquiries the Court invites are at least partly normative. For example, whether an unenumerated right is "deeply rooted in this Nation's history and tradition" depends on what counts as the relevant history and tradition. Do the traditions of people who were enslaved count or only those of the enslavers as reflected in the laws enacted by the representatives of the enslavers? The suggestion that history and tradition provide objective benchmarks independent of the Justices' normative druthers is simply false.

However, that is not to deny that historical questions are also questions of legislative fact. In multiplying the opportunities for lawyers to argue over history, the Court has multiplied the opportunities for contests over legislative facts--and thus further problematized its failure to adopt a satisfactory or even a consistent approach to such contests.