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.

Read more



Related posts

Notify of

We welcome a lively discussion with all view points - keeping in mind...


  1. Your submission will be reviewed by one of our volunteer moderators. Moderating decisions may be subjective.
  2. Please keep the tone of your comment civil and courteous. This is a public forum.
  3. Swear words should be starred out such as f*k and s*t
  4. Please stay on topic - both in terms of the organization in general and this post in particular.
  5. Please refrain from general political statements in (dis)favor of one of the major parties or their representatives.
  6. Please take personal conversations off this forum.
  7. We will not publish any comments advocating for violent or any illegal action.
  8. We cannot connect participants privately - feel free to leave your contact info here. You may want to create a new / free, readily available email address.
  9. Please refrain from copying and pasting repetitive and lengthy amounts of text.
  10. Please do not post in all Caps.
  11. If you wish to link to a serious and relevant media article, legitimate advocacy group or other pertinent web site / document, please provide the full link. No abbreviated / obfuscated links. Posts that include a URL may take considerably longer to be approved.
  12. We suggest to compose lengthy comments in a desktop text editor and copy and paste them into the comment form
  13. We will not publish any posts containing any names not mentioned in the original article.
  14. Please choose a short user name that does not contain links to other web sites or identify real people
  15. Please do not solicit funds
  16. If you use any abbreviation such as Failure To Register (FTR), or any others, the first time you use it please expand it for new people to better understand.
  17. All commenters are required to provide a real email address where we can contact them.  It will not be displayed on the site.
  18. Please send any input regarding moderation or other website issues via email to moderator [at] all4consolaws [dot] org
  19. We no longer post articles about arrests or accusations, only selected convictions. If your comment contains a link to an arrest or accusation article we will not approve your comment.
ACSOL, including but not limited to its board members and agents, does not provide legal advice on this website.  In addition, ACSOL warns that those who provide comments on this website may or may not be legal professionals on whose advice one can reasonably rely.  

Inline Feedbacks
View all comments

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.

Kennedy=psychology today= frighteningly high.

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.

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?

Social facisim here in the US on the rise.

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.