The Volokh Conspiracy

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Just The Facts, Ma'am

The importance of the trial records in Students for Fair Admissions and 303 Creative


Bench trials were held in both the Harvard and UNC cases. And both district court judges made extensive findings concerning how the universities used race in admissions. Did those findings matter to the Supreme Court? Probably not. In Students for Fair Admissions, Justice Sotomayor claims that the majority disregarded the findings of the trial court judges, and substituted its own facts.

The Court ignores these careful findings and concludes that Harvard engages in racial balancing because its "focus on numbers is obvious." Ante, at 31. Because SFFA failed to offer an expert and to prove its claim below, the majority is forced to reconstruct the record and conduct its own factual analysis. It thus relies on a single chart from SFFA's brief that truncates relevant data in the record. Compare ibid. (citing Brief for Petitioner in No. 20–1199, p. 23) with 4 App. in No. 20–1199, p. 1770. That chart cannot displace the careful factfinding by the District Court, which the First Circuit upheld on appeal under clear error review.

Justice Jackson made similar claims:

The majority cannot deny this factual finding. Instead, it conducts its own back-of-the-envelope calculations (its numbers appear nowhere in the District Court's opinion) regarding "the overall acceptance rates of academically excellent applicants to UNC," in an effort to trivialize the District Court's conclusion. I am inclined to stick with the District Court's findings over the majority's unauthenticated calculations.

Meanwhile, in 303 Creative, the web site designer and the state reached a series of factual stipulations. For example, the parties stipulated that Smith's web sites are "expressive" and Smith would create websites for gay and lesbian clients, so long as those web sites do not violate her beliefs. Did these facts matter to the majority? Yes, as it allowed the Court to skirt certain difficult questions about what types of speech are expressive. Justice Gorsuch's majority opinion relied extensively on those stipulations.

The Tenth Circuit held that the wedding websites Ms. Smith seeks to create qualify as "pure speech" under this Court's precedents. We agree. It is a conclusion that flows directly from the parties' stipulations. They have stipulated that Ms. Smith's websites promise to contain "images, words, symbols, and other modes of expression." They have stipulated that every website will be her "original, customized" creation. Id.. And they have stipulated that Ms. Smith will create these websites to communicate ideas—namely, to "celebrate and promote the couple's wedding and unique love story" and to "celebrat[e] and promot[e]" what Ms. Smith understands to be a true marriage.

In dissent, Justice Sotomayor downplays those stipulations. Indeed, the word "stipulation" appears nowhere in her opinion. Justice Gorsuch explains in his majority opinion:

When the dissent finally gets around to that question—more than halfway into its opinion—it reimagines the facts of this case from top to bottom. The dissent claims that Colorado wishes to regulate Ms. Smith's "conduct," not her speech. Forget Colorado's stipulation that Ms. Smith's activities are "expressive," App. to, and the Tenth Circuit's conclusion that the State seeks to compel "pure speech." The dissent chides us for deciding a pre-enforcement challenge.  But it ignores the Tenth Circuit's finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State's. The dissent suggests (over and over again) that any burden on speech here is "incidental." All despite the Tenth Circuit's finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the "very purpose" of "[e]liminating . . . ideas" that differ from its own.

When the facts are on your side, argue the facts. If the law is on your side, argue the law. Otherwise, pound the table.

Just the facts, ma'am.

Fun fact: on the original Dragnet TV series, Joe Friday (played by Jack Webb) never actually said "Just the facts, ma'am," but that phrase has seeped into pop culture. It also appeared in the 1987 film starring Dan Aykroyd and Tom Hanks. If you have no idea what I'm talking about, you never watched Nick-at-night.