blogged repeatedlyover the years about my frustration at the Justices going outside the record, and using the Internet to conduct independent research.
The reason there is a record, and a joint appendix, is so everyone is playing on a level playing field, and both sides are able to dispute any factual issues.
But not Justice Breyer. During oral argument in United States v. Apel, Justice Breyer found the record “not developed” enough so he Googled it.
JUSTICE BREYER: Oh, that’s what I don’t understand. Let me press — at the risk of repetition, the reason I’m asking this question is the record is not developed. I looked at the Google maps.
I doubt this issue will be dispositive, but if it is, the fact that the Justice is independently finding facts is wrong. Plus, why Google? Why not Bing? Or official government maps? Sometimes maps and photographs are misleading. That is why trial lawyers spend time authenticating them. No such luck for the Supreme Court.
Justice Breyer did give a drive-by of the land at issue:
It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner. And when you try to see where does the green line cross that grassy area, you can’t easily tell, and — and it may be just a foot or two. So it may have been inconceivable that your client didn’t cross the green line or maybe he didn’t. I don’t know.
Recall that in McCutcheon Justice Breyer got info from “the Internet.”
JUSTICE BREYER: There are apparently, from the Internet, 200 people in the United States who would like to give $US117,000 or more. We’re telling them: You can’t; you can’t support your beliefs. That is a First Amendment negative.
This really should stop. Stick to the record.
Josh Blackman is the author of “Unprecedented: The Constitutional Challenge To Obamacare,” which can be purchased here.
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