The Corner

Law & the Courts

Justice Kennedy Rightly Rebukes Justice Sotomayor for Surfing the Web

Supreme Court Justice Anthony M. Kennedy is flanked by Chief Justice John G. Roberts (L) and Associate Justice Stephen Breyer (R). (Kevin Lamarque/Reuters)

Yesterday’s oral argument in National Institute of Family and Life Advocates (NIFLA) v. Becerra featured an interesting and important moment unrelated to the core First Amendment issues in the case. Early in the oral argument, Justice Sotomayor went outside the evidence submitted to the court to ask NIFLA’s attorney, Mike Farris, questions about a website of a pro-life pregnancy center. Apparently, she’d been cruising the web on her own.

Moments later, Justice Kennedy responded, telling Justice Sotomayor, “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’s gentle rebuke hardly counts as a “conflict” in our polarized age, but it was important nonetheless. Court cases are fought over evidence and arguments submitted well in advance of court hearings. The reasons for this are obvious — by granting both sides the ability to examine the evidence and test the arguments, it minimizes the chance that cases are decided on the basis of unverified claims or misleading information. Simply put, judges should not act as free-lance investigators in the cases before them. In fact, this is judging 101.

Justice Sotomayor has adopted a level of aggression and a tone that’s sometimes different from her colleagues. It’s not unusual for justices to demonstrate open hostility to arguments they dislike, but Sotomayor’s level of contempt often goes beyond the norm. Advocates can deal with hostility, but it’s another thing entirely to deal with aggressive questioning about “facts” they don’t know.

Justice Kennedy was right to rebuke Justice Sotomayor. Let’s hope that in the future she remembers that cases are decided on the record, not on the basis of a Google search.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

Most Popular

Video

Trump’s Midterm Pitch

While Trump is not personally facing reelection until 2020, he is asking supporters to imagine that his head is on the chopping block Read More
Culture

The Witches of Bushwick

In Brooklyn, there is an occult bookshop called Catland Books. “Catland” is, one imagines, an apt description of the homes of the women who congregate there. The operators of the establishment have announced that they are planning to hold a special hex session this weekend to make Supreme Court justice ... Read More
Law & the Courts

Rosenstein Defends the Mueller Probe

Well, did you think Rod Rosenstein was going to say, “You got me. The Mueller probe was inappropriate and politicized?” No, you didn’t. And the deputy attorney general did not disappoint. In an interview with the Wall Street Journal on Wednesday, Rosenstein defended the investigation as “appropriate ... Read More