The Facts, Ctd

Orin Kerr responds to a Dish reader:

The question is, how much will those factual findings matter on appeal? 

If the Supreme Court agrees to hear the case, I don’t think the factual record will matter very much. I think that for three main reasons. First, the Justices will know that this case presents a defining moment for their respective tenures on the Court. This will be one of the biggest decisions of their careers, and its importance transcends a single trial before a single judge with a particular set of witnesses. These sorts of mega-big-picture cases tend rest less on the details of the factual record than other cases. Second, the Justices will certainly recognize the same point that Dahlia Lithwick and the Sullivan commenter made that is, Judge Walker was trying to use his facts to make an argument designed to persuade the Justices to agree with him. For better or worse, I suspect a majority of the Justices will respond to that dynamic by significantly discounting those facts.

Kerr has further thoughts on the ruling here and here. What he seems to be saying is that the facts behind the arguments do not matter in the face of cultural politics. I'd say they have to matter, when adjudicating the rationality of a law that deprives a minority of core rights.