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Supreme Court rule: (Other) justices shouldn’t conduct independent research


During last week’s Supreme Court arguments about crisis pregnancy centers, Justice Sonia Sotomayor introduced a long line of questions by saying she had recently visited the website of one of the clinics that is a party to the suit.

Eventually, Justice Anthony M. Kennedy broke in to ask his own question, but not before tossing a grenade Sotomayor’s way.

“Well, in this case I didn’t go beyond the record to look on the Internet because I don’t think we should do that, but I do have a hypothetical,” Kennedy said, harrumphing.

Cue said Internet.

Kennedy insinuated that Sotomayor had violated some universally accepted Supreme Court procedure by invoking facts found outside the record. But the rule seems to be that justices don’t like other justices doing such research.

As soon as the transcript of the proceedings hit the digital world Tuesday afternoon, the Internet was filled with remembrances of other justices — including Kennedy — doing research similar to Sotomayor’s.

The first that came to mind for many was Chief Justice John G. Roberts Jr., questioning a lawyer in 2011 about an Arizona law, the Arizona Citizens Clean Elections Act, that provided public funds for political candidates.

“Well, I checked the Citizens Clean Elections Commission website this morning,” Roberts said, with a Perry Mason tone, and what he found seemed to be at odds with Supreme Court precedent and what the lawyer defending the law was representing.

“Why isn’t that clear evidence that it’s unconstitutional?” Roberts asked of the website’s representation. Roberts later wrote the 5-to-4 decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett that said the law indeed was unconstitutional.

That wasn’t all. What about that time, others recalled, when the late Justice Antonin Scalia included in a dissent in an immigration case a remark made by President Barack Obama only days earlier? The cited source was a newspaper article.

Then there was the time Scalia criticized Justice Samuel A. Alito Jr. for including his own research about violent video games in a concurring opinion with the court’s decision in 2011 striking down a California law that restricted minors from buying such games.

“Justice Alito has done considerable independent research to identify video games in which ‘the violence is astounding. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.’ Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression,” Scalia wrote.

And really, one need not look that far back to find other examples. During that same argument last week in National Institute of Family and Life Advocates v. Becerra, a federal-court case, Alito asked about some statistics found in an amicus brief in a similar case in California state court.

“I understand we’re speaking outside of the record here, but that amici’s evidence in the state court . . . was off by, I think, a factor of 10,” replied California Deputy Solicitor General Joshua A. Klein.

There is a lively debate about whether and when justices should consult facts outside the record, which have not been subjected to the kind of adversarial scrutiny applied to facts in the record.

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  1. AlexO

    I’m torn on this. More information is generally good, but bad information could be horrendous (I think we’re all familiar with that one).

    I think if a Justice presents new information like this, it would be fine as long as both sides have a chance to verify said information. We certainly don’t want our highest court in the land basically getting their information from a meme without ample chance given for a rebuttal.

    • TS


      Good point. It is a fine line. However, you hope that what is put into the record is correct and can be backed up with solid information or refutes previous poor info as incorrect with solid information showing this refute. Isn’t this why there are amicus brief’s sought for submission to the record?

      Can you imagine a Justice looking up the Pysch Today article with the infamous 80% data point online and using it outside the normal course of the record (if it had not been used previously, of course)? It would be a field day of grief!

  2. Cassandra

    Kennedy=psychology today= frighteningly high.

  3. mike r

    Yeah that is a slippery slope, on the one hand they shouldn’t just blindly follow what anyone states but than again if they used credible and as the court stated to me, reasonably relied upon and easily verified information that is unquestionable, such as our recidivism rates, that would be fine I think.

  4. Kennedy = charlatan

    Given that Kennedy created the ‘frightening and high’ Psychology Today fiction, he has ZERO credibility in my eyes. Even more frightening is the fact Kennedy is often referred to the ‘swing’ vote by liberals. And Kennedy is often praised by liberals for his ostensibly good record on civil rights. Bulls**t!

    Kennedy has just about as much credibility to law as Karl Hanson has credibility in selling his Static 99 ‘risk assessments.’

    Why are so many fakers in government? Is it that hard to find competent, honest, and straightforward people?

    • Tim Moore

      I have voted for those I consider competent, honest, and so forth. Got it wrong several time, because that is not what most voters often value. Found out that too many others voted for the guy who plays the saxophone, is someone you can have to have beer with or has a reality show.

  5. T

    Social facisim here in the US on the rise.

  6. CR

    Time for Kennedy to retire. He has created his legacy, there is no longer any reason for him to pollute SC jurisprudence. Alito and Thomas need to catch a case of Alzheimer’s soon, too. Maybe Roberts.

    • The Static-99R Is A Scam

      I’d always thought it an insult to Thurgood Marshall that Bush replaced Marshall with Clarence Thomas. While Marshall wrote opinions that helped civil rights and society as a whole, Thomas has done the exact opposite. Also, Thomas rarely speaks during oral argument. I suspect that Thomas’ silence is more to prevent from exposing his true stupidity than anything else.

      • Tim

        Thomas was and is in the pocket of Monsanto Inc. Here is a black attorney who is a sex offender himself, that is if we are to believe the info provided by Ms. Hill. He was approved by our crooked Senate. Just another example of our Good ole boy system overriding common sense. He keeps quiet so he can keep collecting his salery. He is no better than Roberts whose advocacy supported Registration as non punitive in intent…what a FOS MFer. All so the Fed could use databases to perform search and seizure via electronic means. Elites will get theirs to be sure.

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