In the Supreme Court, whose facts count the most?

President Donald Trump wants to deploy troops in Chicago and Portland, cities that he has described as “war ravaged,” “burning down,” and “a war zone.” Two district court judges have disputed those descriptions, with one saying the administration’s depictions are “untethered from the facts.” Whose facts should you believe?

For many years, federal appellate courts, including the U.S. Supreme Court, have paid considerable deference to a trial judge’s findings of facts in a case before him or her. That principle is simple and logical: The trial judge is on the ground, hears and sees witnesses, determines their credibility, and builds a record that an appellate court may someday have to review. Those findings may lose that respect only if an appellate court decides they are “clearly erroneous.”

Two appellate courts largely agreed with the Chicago and Portland trial judges. Trump’s recent emergency application in the Supreme Court in the Chicago case relied heavily on alleged threats to federal agents and federal property. The city and the state of Illinois countered that the threat was exaggerated and troops unwarranted.

In recent years, the Supreme Court’s conservative majority has not been very deferential to trial judge’s findings of facts, particularly in highly charged cases such as those involving abortion or religion.

For example, in Kennedy v. Bremerton School District, a high school football coach claimed his First Amendment right to express his religion was violated when the school district objected to what he and his lawyers described as his brief, quiet, private prayer on the 50-yard line at the end of each game. The trial judge and appellate court judges sharply accused them of misrepresenting the facts.

Despite the lower courts’ findings, the coach’s lawyer opened his Supreme Court argument claiming the coach only wanted brief, quiet, private prayers. Only Justice Stephen Breyer, and later, Justice Elena Kagan, asked about the facts of the case.

“One of my problems in this case was the parties seem to have different views of the facts, so I'd like to get the --this may be a case about facts and not really much about law,” Breyer told the coach’s lawyer. Kagan subsequently asked the lawyer, “So is -- is -- is that the question of this case, whether the facts are my facts or your facts?”

In the end, the coach won the case in a majority opinion by Justice Neil Gorsuch who generally accepted the coach’s version. Justice Sonia Sotomayor led dissenters Breyer and Kagan. “To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts,” she wrote. “The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field.”

A Supreme Court justice once said that by the time a case gets to the Supreme Court, he does not care about the facts, only the law. There is truth in that statement. The justices are answering a legal question that will apply to far more people or businesses than the entity bringing the case to them.

But facts are important. Consider the gateway to a lawsuit– standing, or the legal right to sue. One of the critical elements is the party must prove he or she has a concrete and particularized injury or be in imminent danger of injury.

And in deciding emergency applications to grant or bar relief, the Supreme Court considers the party’s likelihood of success on the merits, the possibility of irreparable harm, the balance of hardships, and the public interest. Facts matter.

So how is it that findings of facts in a case can be viewed so differently by some judges? Some critics or observers may say it is ideology. In the football coach’s case, the Supreme Court’s conservative majority is strongly in favor of a greater role for religion in government and the public sphere. The court’s liberal wing is a defender of a high wall between church and state. The outcome was rather predictable.

But there also may be an experience factor. Justices Sotomayor and Ketanji Brown Jackson have been the strongest defenders of trial judges’ handling of challenges to Trump’s many executive orders. They are the only prior trial judges on the high court. Sotomayor served four years as a trial judge before joining the appellate court, and Jackson served eight years as a trial judge before becoming an appellate court judge.

In the context of emergency applications, there is value to having justices who know how fact-finding and record-building are done and that –unlike recent Supreme Court orders–result in meticulous opinions supporting whatever ruling they have made.

In the Chicago and Portland cases, and if other cities face the Trump military order, it is hard to imagine when facts matter more than whether troops are necessary to be in American streets and neighborhoods.

Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.