“Facts are stubborn things,” John Adams once said, “and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.”
Adams, however, was not an appellate court judge. In jurists’ hands, facts and evidence sometimes are surprisingly compliant. That’s true even though a basic legal principle declares that on appeal, the court may not rely on anything but the record submitted. Appellate judges are supposed to decide law, leaving the facts to the courts below.
The indefatigable Josh Blackman recently called attention to an opinion by Judge Richard Posner of the Seventh Circuit. The employees of a chicken processing plant sought overtime pay for removing their protective gear (“sterilized jacket, plastic apron, cut‐resistant gloves, plastic sleeves, earplugs, and a hairnet”) at lunchtimes and putting it back on afterwards. The parties had disagreed about how long the process took, so Posner apparently videoed his clerks, or some other luckless underlings, doing it.
“The videotape” (which is not available to the public) “reveals that the average time it takes to remove the clothing/equipment is 15 seconds and the average time to put it on is 95 seconds,” Posner wrote. The workers’ complaint, he concluded, was what lawyers call “de minimis,” a mere trifle.
In a separate opinion, Judge Diane Wood pointed out two problems. First, she said, appellate judges are really not supposed to do that. “To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries” established by the federal rules that dictate how courts operate.
Beyond that, she noted, it wasn’t a fair test. Unlike judicial employees, poultry workers spend their shifts wallowing in raw chicken guts. They are required by law to wash thoroughly before going among humans. (Posner blew this off by saying that they “would doubtless do it without being told to.”)
The problem isn’t new. Posner’s Seventh Circuit colleague, Frank Easterbrook, stirred a similar controversy a quarter-century ago when he brushed aside a defendant’s apparently airtight alibi. Witnesses, relying on a hospital clock, testified that the defendant would not have had time to commit the crime. Easterbrook just reached back and reset the clock: “Suppose the clock at the Hospital was a few minutes fast (digital watches were rare in 1967).”
Nor is it confined to the Seventh Circuit. Earlier in April, Simon Lazarus detailed how Judge Raymond Randolph of the D.C. Circuit spouted misinformation from the bench about the “unmitigated disaster” and “sky-high” costs of the Affordable Care Act launch—talk-radio points that were not in the record and, indeed, were clearly false.
We shouldn’t be entirely surprised that judges are sometimes a little confused about whether facts are really all that stubborn. Sometimes the confusion stems from procedure. Many cases come to the Court without a trial; the “facts” are just claims, and specific rules require the judges’ to assume one or the other version is correct—even if that version seems ridiculous or implausible.
In other cases, the parties strategically allow the record to mislead. In Flagrant Conduct: The Story of Lawrence v. Texas, for example, author Dale Carpenter details the reshaping of “facts” in a challenge to Texas’s law against same-sex sodomy. The two men charged with sodomy barely knew each other, and probably actually weren’t having sex when arrested. As it moved up the appellate chain, though, the story became one of two men consummating their love within a loving relationship.