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, says the Washington Post. 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. Kennedy was insinuating 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 last Tuesday, the Internet was filled with remembrances of other justices — including Kennedy and Chief Justice John Roberts Jr.— doing research similar to Sotomayor’s. 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. “I think there are good reasons why appellate courts, including the Supreme Court, generally shouldn’t consider facts outside the record,” said Leah Litman, a law professor at the University of California at Irvine. “But there are also times where it would be difficult not to do so, particularly when they are confronted with particularly credible evidence . . . that is relevant to a case or potentially undermines one of the premises on which the case is being litigated.”