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.