260
Thomas, J., dissenting
engage in "extensive review." See ante, at 243. In several ways, the Court ignores its role as a reviewing court and engages in its own factfinding enterprise.1 First, the Court suggests that there is some significance to the absence of an intermediate court in this action. See ante, at 242-243. This cannot be a legitimate consideration. If it were legitimate, we would have mentioned it in prior redistricting cases. After all, in Miller and Shaw, we also did not have the benefit of intermediate appellate review. See also United States v. Oregon State Medical Soc., 343 U. S. 326, 330, 332 (1952) (engaging in clear error review of factual findings in a Sherman Act case where there was no intermediate appellate review). In these cases, we stated that the standard was simply "clearly erroneous." Moreover, the implication of the Court's argument is that intermediate courts, because they are the first reviewers of the factfinder's conclusions, should engage in a level of review more rigorous than clear error review. This suggestion is not supported by law. See Fed. Rule Civ. Proc. 52(a) ("Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous . . ."). In fact, the very case the Court cited to articulate clear error review discussed the standard as it applied to an intermediate appellate court, which obviously did not have the benefit of another layer of review. See ante, at 242 (citing Anderson, supra, at 573).
Second, the Court appears to discount clear error review here because the trial was "not lengthy." Ante, at 243. Even if considerations such as the length of the trial were relevant in deciding how to review factual findings, an as-1 Despite its citation of Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 (1984), ante, at 243, I do not read the Court's opinion to suggest that the predominant factor inquiry, like the actual malice inquiry in Bose, should be reviewed de novo because it is a "constitutional fac[t]." 466 U. S., at 515 (Rehnquist, J., dissenting). Nor could it, given our holdings in Lawyer v. Department of Justice, 521 U. S. 567 (1997), Miller v. Johnson, 515 U. S. 900 (1995), and Shaw v. Hunt, 517 U. S. 899 (1996).
Page: Index Previous 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: October 4, 2007