In Kennedy v. Bremerton School District (2022), the Court ruled 6–3 in favor of a high school football coach who had been leading players in prayer and was instructed by the school district to stop. [PDF]

Justice Sotomayor's dissent disputes some of the characterizations in the majority opinion:

To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts.

For purposes of this question, let's assume that the above statement is correct that the majority opinion is wrong. What are the effects of substantive factual errors in an opinion? Like, for example:

  • I assume that this specific ruling is not affected in any way by the text of the opinion? (Like, I assume that even an opinion of the form "We got high and decided to rule wrongly for fun" wouldn't actually negate the ruling?)
  • How does this affect the precedent? Will courts in the future consider the true facts of the case (whatever they perceive them to be), or will they accept as legal fiction that the facts were as the Court describes them?
  • Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on?
  • In this instance, the Court seems to be reversing the lower court's ruling directly; but sometimes the Court remands a case to a lower court in order to decide it on a different basis than it had. In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case, or can it use the true facts of the case as long as it obeys the ruling itself?
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    In reading the judgement they didn't really disagree about the facts, they just interpreted them differently e.g. the Coach said he wanted to pray silently and others joined him voluntarily (preumably because the school had tried to stop him). whereas the dissent portrays it as a pattern of conduct.
    – deep64blue
    Commented Jun 28, 2022 at 16:59
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    The statement of the incorrect facts would limit the scope of the precedent here -- if the court finds that the coach did pray silently and that was within bounds, this cannot be used as precedent that leading a prayer group is also within bounds. Commented Jun 29, 2022 at 16:29
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    I would urge a bit of caution. Her claim only means the facts are in dispute, not that her version is necessarily correct. In this case there's also room for real question about "how quiet is quiet?" and "how private is private?" I realize that doesn't change your basic question though. Commented Jun 29, 2022 at 16:54
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    After reading some of the decision, I'm wondering whether the case answers the two main questions of "physically separate" and whether students may be join. Before his dismissal, Kennedy was informed that he may continue to pray if "such activity must be physically separate from any student activity, and students may not be allowed to join such activity." Physically separate is touched, since "after the event" is the focus, but student involvement is a weird question though, since I'd expect that a student joining is exercising that same right that allows it in the first place.
    – user608
    Commented Jun 29, 2022 at 18:13
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    Even before the bullet points, “… a football coach had been leading players in prayer and was instructed… to stop” is hardly a clear summary of a 75-page ruling… and itself misconstrues the facts. One group of judges must be wrong but on the question of the prayers being private or quiet, the Sotomayor dissent seems to describe a different case altogether. Still, it’s not obvious how any of those bullets needs KvBSD at all, as shown in ohwilleke's Answer. So yes, it’s highly unclear. Commented Jun 30, 2022 at 12:56

6 Answers 6


What are the legal consequences of substantive factual errors in an opinion?


I assume that this specific ruling is not affected in any way by the text of the opinion?


I assume that even an opinion of the form "We got high and decided to rule wrongly for fun" wouldn't actually negate the ruling?

Probably not, but it might precipitate a constitutional crisis or lead to an impeachment.

How does this affect the precedent?

It doesn't.

Will courts in the future consider the true facts of the case (whatever they perceive them to be),


will they accept as legal fiction that the facts were as the Court describes them?


Could it be legal for the district to repeat exactly the same set of actions in exactly the same set of true circumstances as before, since those won't be the same circumstances that the Court claimed to rule on?

In such a case, is the lower court bound by the Supreme Court's characterization of the facts of the case,

Generally speaking the lower courts are bound by characterizations of the facts made by the appellate court. But, it depends to some extent on the procedural posture of the case.

In most cases, the findings of fact made by the trial court following an evidentiary hearing are binding on appellate courts in the U.S. unless they are not supported by any admissible evidence presented at trial, but there are some exceptions to this rule and there is considerable art as well as science that goes into properly characterizing the evidence presented at trial.

But, for example, many appellate cases are appeals from a dismissal of a case on a motion to dismiss at the outset of a case, in which all allegations of the Plaintiff's complaint in a civil matter are taken as true for sake of argument, and the legal issue presented is whether the Plaintiff can prevail if all of those facts are true.

In a case in that procedural posture, assuming that the appellate court reversed the trial court and found that the facts alleged state a claim upon which relief can be granted, then the remand would be to move forward with discovery and other pre-trial procedures in the case and ultimately a trial, if necessary, to determine the actual facts of the case as opposed to the facts as alleged by the Plaintiff in the complaint or petition.

Not infrequently, when appellate courts are divided over what happened in the trial court, one side of the debate, looking at the raw testimony and exhibits presented at trial, will conclude that the admissible evidence presented at trial did not support the findings of fact in a mixed question of fact and law made by a trial court judge, while another side of the debate will accept the trial court judge's findings of fact uncritically. It often isn't easy to know, from reading an appellate court opinion alone, which side is which in this regard.

can it use the true facts of the case as long as it obeys the ruling itself?

Usually not. Usually, facts relied upon by an appellate court are by definition the correct facts (apart from clerical errors - e.g., an appellate court once misspelled my name in a court opinion, and the lower court wasn't bound by that mistake). This said, as noted above, the precise procedural posture of the case, nature of the court's opinion, and scope of the remand order is highly relevant to what a court can do on remand.

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    @nanoman I left that out because it was unclear what was meant to the point of being nonsensical.
    – ohwilleke
    Commented Jun 28, 2022 at 17:05
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    @ohwilleke: I didn't find it nonsensical. Let's consider a really small example in the realm of book censorship. School accepts a donation of books on topic X. Court eventually rules that the school cannot spend taxpayer funds on topic X. Can the school accept another donation of books, purchased with private funds, falling within the same topic? I would think the answer is "yes, but they must make sure the donor covers all costs, including labeling, updating catalogs, and placing the books on the shelves" because that doesn't violate the court's order not to spend taxpayer funds.
    – Ben Voigt
    Commented Jun 28, 2022 at 17:35
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    I find Ben Voight's point quite clear. Suppose a police officer punches a suspect in the nose, and says "I want you to confess". The suspect then confesses. Their lawyer files a motion to suppress the confession. It goes up to the Supreme Court as Smith v Jones. The Supreme Court then issues a ruling saying "The police officer in this case gave an ice cream cone to the suspect, then asked for a confession. We find that giving an ice cream cone to a suspect before asking for a confession does not constitute undue pressure. Therefore, the motion to suppress is denied." Commented Jun 29, 2022 at 3:13
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    Now there's another case where another police office punches another suspect in the nose, and then asks for a confession, and there's another motion to dismiss. The prosecutor says "In Smith v Jones, the Supreme Court found that punching a suspect in the nose does not constitute undue pressure. You should follow the precedent and deny the motion." Commented Jun 29, 2022 at 3:13
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    The defense attorney says "In Smith v Jones, the Supreme Court found that giving a suspect an ice cream cone does not constitute undue pressure. That was the pattern of facts on which they asserted that they based their ruling. Whether that is what happened in actuality is irrelevant to the precedent; the precedent only speaks to the proper ruling with respect to the asserted pattern of facts." Who's right? Does the precedent apply to the "actual" pattern of facts, or the asserted pattern of facts? Commented Jun 29, 2022 at 3:13

Appellate courts are not finders of fact. Appeals courts are supposed to resolve questions of law. The job of a court of appeals isn’t supposed to be to second-guess whether the witnesses are telling the truth. Sometimes, as you mention, an appellate judge does point out that the factual record they’re presented with does not make sense, but, in theory, that isn’t what they’re reviewing.

The facts of the case are relevant to that one case. What the Supreme Court actually decided was not whether that one person had prayed too loudly or not, but that “The Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal.” That holding doesn’t depend in any way on the actual volume of that one plaintiff’s prayers. (All right, sometimes it can, because someone says, “If even that was legal, this has to be,” but if someone were worried about that, she would have been motivated to emphasize how very very exceptionally quiet this one prayer that’s allowable really was.) Similarly, the landmark case of Lawrence v. Texas was widely misreported in 1993 as beginning with a SWATTing of two gay men by a homophobic neighbor, when in fact it was a jealous boyfriend (although I see the opinion itself stuck to the passive voice and thus did not end up repeating it). This didn’t matter to the conclusion that sodomy laws against consenting adults in private violate the Constitution.

This is where the maxim, “Tough cases make bad law,” come from. Lawyers love to hand-pick the most sympathetic petitioners or the most unsympathetic defendants imaginable, so that it will feel like a miscarriage of justice if their side doesn’t win this specific case. But courts of appeals are actually establishing rules for how other cases must be decided in the future. The reasoning they come up with to justify one verdict in an unusual case often turns out to be a bad precedent for other cases.

The Supreme Court isn’t a trial court where people present new evidence. More precisely, the side that lost makes a list of all the errors they claim the judge made that they wnt to be overruled, and the higher court decides whether it will hear the arguments for and against. This is why the Supreme Court only has thirty-minute question periods: both parties to the case already submitted their written briefs where they lay out the case, and now the justices will ask any further questions that they feel were not sufficiently addressed. At this argument, the lawyers never say, “I have new evidence to introduce!” or “I want to call a witness!” It’s not a trial where they do that.

The higher court might rule that the trial judge erred by not allowing one side to present evidence, or it might rule that the trial judge erred by allowing a jury to hear something it should not have. If that happens, it orders there to be a new trial, with a new jury, that gets to hear the new evidence and decide based on that.

There’s no other court to appeal to from a decision by the Supreme Court. (Hence the famous quip, “We’re not last because we’re right; we’re right because we’re last.”) @DavePhD informed me that it can be petitioned to rehear a case it just decided, with a 25-day time limit.

However, it has happened that a case raised an issue of law that made the Supreme Court order a retrial, and in the new trial, a different question of law came up that also was appealed to the Supreme Court, so it heard the same case a second time. Powell v. Alabama, the trial of the Scottsboro Nine, was one such case, establishing two different precedents (on the right to effective assistance of counsel and the unconstitutionality of calling in only White people for jury duty). With the judge in one of these retrials throwing out the jury’s guilty verdict and declaring a mistrial because he was so sure their conviction had been wrongful, some of the nine defendants were tried four times. (On the same evidence, four of them ended up being acquitted, four were convicted, and one died in police custody.)

But, once a trial is over and its appeals are exhausted, the case is done. It cannot be tried again. This is called res judicata, a thing that has been judged. Norma McCorvey, better known as the pseudonymous “Jane Roe” in Roe v. Wade, even sued years afterward to have her own case overturned. (Too soon?) Notably, the holdings of that case were later overruled—in a separate case that raised the same issues and led the justices on today’s Supreme Court to reconsider them. But the original case was not, and could not be, brought a second time to undo it, and someone tried. Similarly, in another example I gave above, the court in Lawrence v. Texas reversed the conclusion it had reached in Bowers v. Hardwick, but without changing the outcome of the previous case (where the prosecutor ended up dropping the sodomy charge anyway).

  • Your final paragraph (and especially the last sentence) is unclear and reads like an attempt to slip in an opinion concerning a very recent decision that's a political hot potato, rather than choosing what would best illustrate your point.
    – Ben Voigt
    Commented Jun 28, 2022 at 17:40
  • @BenVoigt It wasn’t intended that way, but that might have been the reason it jumped immediately to my mind as an example of an attempt to re-try the exact same case. i’ll revise to clarify.
    – Davislor
    Commented Jun 28, 2022 at 17:42
  • The sentence is still ambiguous, "paid off to do it" could be referring to appearing as lead plaintiff in the original case or to the later request to overturn the original. Or maybe both. I think you're better off just removing that claim, lest it devolve into an argument over whether being reimbursed for expenses is a payoff.
    – Ben Voigt
    Commented Jun 28, 2022 at 17:49
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    @BenVoigt i mean, i could quote her exact words, which were, “I took their money and they took me out in front of the cameras and told me what to say. That’s what I’d say,” You have persuaded me, though, that that line will distract readers from my main point.
    – Davislor
    Commented Jun 28, 2022 at 17:52
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    @BenVoigt She was referring to the attempt to overturn it. I’ve simply removed all references to her motives in either case. The point of that example is, she was not allowed to bring the same case again once it was over and ask for a different verdict. The Court could, however, later reconsider whether its reasoning in the earlier case had been correct. In a new case that raised the same issue.
    – Davislor
    Commented Jun 28, 2022 at 17:56

US Supreme Court rule 44 provides for rehearing of cases.

If, for example, there is an error, a party may request rehearing of the case and if a justice who agreed with the original decision thinks rehearing is appropriate, and a majority of the court agrees, the case will be reheard.

For more information see When U.S. Supreme Court Decisions Are Not Final: An Examination of the Rehearing Rule and the Court’s Application of It in Kennedy v. Louisiana (2010).

In Kennedy v Louisiana a 5-4 major held that it was cruel and unusual to apply the death penalty to a man who raped and sodomized an 8 year old girl and ripped her body from vagina to anus. The decision incorrectly stated that there was no federal legislation to apply the death penalty for rape. After the decision, it was reported in the news media that actually there was a US military law allowing the death penalty for rape of a child.

Rehearing was requested, but only justices Thomas and Alito would agree to rehear the case.

Ambler v. Whipple is cited in the above article as another example of a decision having a factual error.

  • This is a great answer, but I feel like the direct answer to the question is only implied, where it may be worth stating ~"In the case of incorrect facts the court may be petitioned to rehear the case." (I'm also suggesting an edit for more info on the Ambler v. Whipple case)
    – TCooper
    Commented Jun 28, 2022 at 17:31
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    This answer is somewhat vulnerable to link rot. I think some key information from the linked resources (all publicly available) could've been quoted in the answer body. Right now, without the ability to click on any link, I just know there's some rule allowing rehearing and it's been used before, but nothing else. Commented Jun 28, 2022 at 19:50
  • @Mindwin and TCooper, I added more
    – DavePhD
    Commented Jun 28, 2022 at 20:22
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    Thank you for the great answer! I think it is relevant information that Rule 44 has a 25-day time limit.
    – Davislor
    Commented Jun 28, 2022 at 22:43

I generally agree with this answer by ohwilleke. An error, even an egregious error, in the selection or, characterization of the facts in a case by the US Supreme Court has no direct legal consequences. Such an error offers no path to overturning the decision, except through a motion for a rehearing, which I understand rarely succeeds.

A dissent may point out such an error. While the decision is being considered by the court, that may or may not affect the views of other justices. Later, it may make the decision less likely to be followed and become an important precedent. It may lead to the decision being distinguished or simply ignored in later Supreme Court decisions. But there is no guarantee of either effect.

One case where the Court pretty clearly got the facts wrong was Buck v. Bell, 274 U.S. 200 (1927) In that case, as the Wikipedia article puts it:

the Court ruled that a state statute permitting compulsory sterilization of the unfit, including the intellectually disabled, "for the protection and health of the state" did not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Despite the changing attitudes in the coming decades regarding sterilization, the Supreme Court has never expressly overturned Buck v. Bell.

Justice Oliver Wendel Holmes famously declared in the opinion "Three generations of imbeciles are enough", referring to Carrie Buck, her mother, and her daughter. But it now seems clear that none of these individuals was in fact an "imbecile" (then a defined medical term), and the evidence purporting to show that they were was laughable even at the time. See "Carrie Buck's Daughter" an essay by Stephan Jay Gould.)

(The Court also failed to note that Carrie Buck's lawyer was affiliated with the other party, and may have intentionally presented a weaker case than he could have done.)

This err, error in finding the facts has not lead to any "legal consequences" in over 90 years, although other developments may have weakened the force of the case as a precedent.

When a Supreme Court decision (say A v B) says that:

The facts in this case show that X was true, and therefore legal doctrine Q applies.

judges in future cases in lower courts may look to see if X is true before applying Q, whether X was actually true in the original case or not. To that extent the incorrect facts stated in the Supreme Court opinion may form a rule of law.

Suppose that in the case the actual facts were Y, while the Court stated that they were X. If in a later case the facts are again Y, it might be argued that:

The rule in A v B is that when X is true, Q applies. But here Y is true, not X, so that case is not relevant.

Sometimes when legal scholars, particularly in law review articles, point out what seems to be an error in legal reasoning, or an error in stating the facts, in a current decision, Justices become uneasy, and more willing to go a different way in similar later cases. But not always, and Justice Alito, in particular, has shown little attention to such criticism of his views or opinions.

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    +1. This is the only answer which addresses the important point that misrepresenting the facts changed the presidential value of the case, either strengthening it or (in this case) weakening it.
    – Charles
    Commented Jun 28, 2022 at 21:04
  • So Sotomayor simply disagrees? Fact X should not make legal doctrine Q? Where fact X is whatever was presented before the court?
    – user608
    Commented Jun 29, 2022 at 16:40
  • @608 In the case mentioned I think that Sotomayor disagrees with how the courtr interpreted the evidence from the trial court. But It is also possible for justices to disagree on the proper legal consequence of agreed facts. Commented Jun 29, 2022 at 17:11

Your question seems to be based on the premise that courts' decisions are meant to make sense at all times: if a decision isn't coherent, the court gets ashamed about it and corrects it promptly, or, at least, eventually gets forced to correct it (or a higher court, if there is one, does so).

First of all, the decision in question is delivered by the highest court of the country. The legal status of such decisions is always "in force" unless they get overturned by the court itself, or the legislators pass a law that takes the decisions down. The reasoning which the court used to arrive to the decision (including any [mis]representations of facts) does not matter: the reasoning is given merely as courtesy (pun intended) for those who would need to apply it as case law. Even if the reasoning included pure math errors — rendering the decision objectively wrong, it would still be in force until taken down the usual way.

If the court wasn't the highest one, there could be appellate remedies. Otherwise no difference.

  • Thanks! Just FYI, your first paragraph is mistaken about the premise of the question. (I'm not sure if there's something confusing about how I wrote it, or what. It doesn't seem to just be you; Mark Rosenblitt-Janssen's answer shows a similar misunderstanding.)
    – ruakh
    Commented Jun 28, 2022 at 6:54
  • @ruakh I've changed the wording slightly. When someone assumes that there could be any "legal consequences of substantive factual errors" in the top courts' decisions, I think it is reasonable to infer that the person perhaps thinks in the terms expressed in the 1st paragraph. Even though it is not the case in your case, the misconception is common.
    – Greendrake
    Commented Jun 28, 2022 at 7:25
  • Oh! Yes, I see how the phrase "legal consequences" could be misleading here, seeing as it usually has a different meaning. (I mean, I do feel that y'all could have just read the list of examples to see that that wasn't what I meant. But at least I understand now where the confusion came from.) I'll edit; thanks!
    – ruakh
    Commented Jun 28, 2022 at 8:08

In my estimation, there can be no legal ramification. The Court does not answer to the People, like the Executive, but to the ideals and underpinnings of the Law.

However, one can resort to the Press to put pressure on the Court to revise their opinion or ruling, etc.

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    Thanks for taking the time to answer! But I don't think this answer is really related to my question, which is about the legal status of mistaken factual claims in a majority opinion.
    – ruakh
    Commented Jun 28, 2022 at 4:34

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