How Judges Know What They Know by Linda Greenhouse
'Legal journalists and bloggers have been having a field day with Justice Anthony M. Kennedy’s put-down of Justice Sonia Sotomayor during a Supreme Court argument last week. The argument came in a case challenging California’s effort to regulate “crisis pregnancy centers,” offices that look like abortion clinics but that don’t provide abortions. Some provide pregnancy-related medical services, while others don’t have a doctor on the premises and offer no medical services at all.
The California law requires clinics without doctors to disclose that fact. Close to the surface of the case, although only obliquely confronted during the argument, is whether the clinics’ operating model is properly described as luring women inside by pretending to be something they’re not.
Justice Sotomayor came close to making that accusation. Addressing the lawyer for the National Institute of Family and Life Advocates, the network of pregnancy centers that brought the case, she said she had looked at “a few” of the clinics’ websites and had come upon one that showed “a woman on the home page with a uniform that looks like a nurse’s uniform in front of an ultrasound machine” in what looked like an examination room. “I’m fairly sophisticated,” Justice Sotomayor said, and suggested that she might nonetheless have been fooled into thinking she was about to see a doctor.
Justice Sotomayor and the lawyer, Michael P. Farris, went back and forth for a some minutes until finally Justice Kennedy jumped in to offer Mr. Farris a helping hand. “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,” he began.
Aha! “Sotomayor Rapped for Surfing the Web” read The Associated Press headline on an article carried by news outlets all over the country. In a smart article in The Washington Post titled “Supreme Court Rule: (Other) Justices Shouldn’t Conduct Independent Research,” Robert Barnes, the newspaper’s Supreme Court correspondent, had great fun chronicling instances of research conducted outside the official record of a case by members of the Supreme Court including Justice Antonin Scalia, who died in 2016, the current Chief Justice John G. Roberts Jr. and, yes, Justice Kennedy himself.
Everyone was shocked! shocked! (or at least, amused) to learn there was research going on.
In fact, the courtroom exchange opened the window on a subject as elusive as it is fascinating: How do judges know what they need to know in order to perform the job of deciding cases?'>>>
https://www.nytimes.com/2018/03/29/opinion/supreme-court-judges-decisions.html?
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