This is an amici curiae brief submitted to the United States Supreme Court in the Gonzales v. Carhart and Gonzales v. Planned Parenthood cases (i.e., the partialbirth abortion cases) argued during the October, 2006 Term. The question the brief addresses is whether the Supreme Court should defer to congressional findings of fact, when the factual questions at issue help to determine the scope of a basic, constitutional right. The argument presented in the brief is as follows:
The question of what level of deference is owed legislative findings of fact in constitutional litigation is not new. It divided the Court in First Amendment cases in the 1920s, and again with the the Japanese-American Internment case in 1944. However, in the modem era, and contrary to the Solicitor General's position advanced in these cases, the Court has consistently refused to defer to legislative fact finding where the factual findings serve to define the scope of a fundamental constitutional right. Put differently, when legislation is subject to heightened scrutiny because it burdens a basic right, the Court engages in a searching, independent review of constitutionally relevant facts and conclusions. This is not to say that legislatures may not make factual findings that affect the scope of rights, or that courts should ignore such findings when they exist. To the contrary, legislatures should be encouraged to make such findings, and when courts are faced with the obligation to determine constitutional facts upon which legislative findings are based, they should accord due respect to the legislature's work. But courts should not be wholly deferential to legislative findings, nor limit their review to a record compiled by legislative bodies. Rather, courts must conduct an independent judicial review of legislative facts in constitutional cases and must gather and evaluate additional relevant facts. A contrary rule would permit legislatures to evade and effectively overrule the most critical decision of the Supreme Court through the guise of "fact-finding." Such as result would undermin the Court's preeminent role in constitutional interpretation mandated by Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
David L. Faigman, Ashutosh A. Bhagwat, and Kathrny Davis,
Amicus Brief of Constitutional Law Professors David L. Faigman and Ashutosh A. Bhagwat, et al. in the Case of Gonzales v. Carhart,
34 Hastings Bus L.J. 69
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol34/iss1/2