Posted Jul 09, 2012 11:38 am CDT
Surely Supreme Court justices have always looked outside the briefs to find facts, but the advent of the Internet is making it easier.
William & Mary law professor Allison Orr Larsen makes that argument in her study of 15 years of Supreme Court decisions, the Washington Post reports. She found more than 100 instances in which justices cited facts not found in any of the briefs.
The practice is common in the court’s most important cases from 2000 to 2010, Larsen writes in her article. In 58 percent of those 120 cases, justices mentioned facts outside the record.
As an example of outside fact-finding, Larsen cites the court’s 2011 decision striking down a California law barring the sale of violent video games to minors. Three justices referred to facts outside the briefs. Justice Stephen G. Breyer’s dissent told of studies weighing in on the debate over psychological harm from playing the games. Justice Clarence Thomas’ dissent cited 59 sources for the proposition that the founding fathers believed parents had absolute control over their children’s development; 57 were not in the briefs. And Justice Samuel A. Alito Jr.’s concurrence referred to websites that bolstered his argument about “astounding violence” in the games.
“In house judicial fact-finding is thus no longer an isolated practice that can be ignored,” Larsen writes. “Instead I suggest two radically different approaches: either we shut down in house fact finding with stricter procedural rules, or we open up the evaluation of legislative fact to invite broader participation.”