Judge Richard Posner would do it, and as this story from the Associated Press illustrates, Supreme Court Judges do it too:
Justice Sonia Sotomayor was only following the lead of her chief during Tuesday’s arguments over crisis pregnancy centers when she said she visited the website of one of the centers involved in the Supreme Court case.
When Chief Justice John Roberts did something similar seven years ago, no one uttered a peep. But after Sotomayor’s comment, Justice Anthony Kennedy piped up.
“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,” Kennedy said.
Going beyond the record, in legal terms, refers to material that is not part of the court record and so untested by the adversarial process.
But sticking to the record in Supreme Court cases can sometimes be more of a notion than a hard-and-fast rule.
In a case on campaign contribution limits in 2011, Roberts said he consulted the website of one of the parties to the case that morning and asked a question about what he saw. During arguments in 2016 over a Texas law that restricted abortion clinics, Justice Samuel Alito made use of an article from the Huffington Post. Justice Stephen Breyer will sometimes begin a question by saying he had his clerks look something up.
And even Supreme Court opinions sometimes go outside the record. In a 2012 opinion in an immigration dispute between Arizona and the Obama administration, Justice Antonin Scalia wrote about comments President Barack Obama made at a news conference discussing the just-unveiled plan to protect young immigrants from deportation.
In 2007, Kennedy himself cited anecdotal evidence in a supporting brief from 181 women who said they were injured by abortion in his opinion for the court upholding a federal ban on a procedure called partial-birth abortion by its opponents. “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow,” Kennedy wrote, referencing the women’s brief.
In her dissent, Justice Ruth Bader Ginsburg criticized Kennedy for reaching a result that was not supported by the extensive record developed in the lower courts. She said the court was invoking “an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “(s)evere depression and loss of esteem.”
So should you surf the web, too? Maybe…but there are reasons to be cautious. Judges can conduct legal research online for cases not cited by the parties, but using the internet to find facts concerning the parties or subject matter poses ethical problems, according to an ABA ethics opinion.
Finding “adjudicative facts” about a case online is generally banned by the ABA Model Code of Judicial Conduct, according to ABA Formal Opinion 478. An exception allows judges to go online for facts that are subject to judicial notice because they are generally known and not subject to reasonable dispute.
Adjudicative facts concern the immediate parties, including who did what, where, when, how, and with what motive or intent, the ethics opinion explains.
Judges’ decisions must be based on evidence presented on the record or in open court, and that is available to all the parties, the ethics opinion says. In an adversarial system, judges should not combine the role of advocate, witness and judge.
The opinion cites Model Rule 2.9(C) of the Model Code, which states: “A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Comment 6 to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”
The opinion presents guidelines for independent factual research by judges.
• Is additional information needed to decide a case? If so, that type of information must be provided by the parties or the lawyers, or must be subject to judicial notice.
• Is the purpose of a judge’s inquiry to corroborate facts, discredit facts, or fill a factual gap in the record? If the facts are adjudicative, it is improper for the judge to do the research.
• Is the judge looking for general or educational information needed for a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate.
• Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If the information is of factual consequence in determining a case, it must be subject to the adversary process.