Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings but not others without having to explain the inconsistent treatment of group related norms. The consequences of the fact based decision making fiction appear strikingly in many contemporary same sex marriage cases, where courts treat procreative facts as decisive and avoid reconciling gay couples' exclusion from marriage with other decisions that treat sexual orientation-based differences as legally insignificant. In that light, the article tests the costs and benefits of greater candor regarding the normative underpinnings of decisions.

The article also challenges the claim that courts can and should remain neutral in public debates by sustaining traditional norms when views about social groups are in contest. It argues that this position, like the judicial embrace of fact-based decision making, rests on the same flawed premise that restrictions on social groups can be evaluated based on facts alone. Our theories of judicial review will be better off, both with respect to descriptive accuracy and normative bite, to the extent they recognize the inevitable involvement of courts in making normative judgments about social groups.


Civil Rights and Discrimination | Constitutional Law | Law and Society

Date of this Version

March 2006