"Out-of-court research may give a judge only a partial view in favor of one side, with the other side not even knowing that the research is taking place and thus losing a chance to rebut the findings. "
As usual, Ms. Greenhouse gets to the nub of the problem. Thank you, Linda.
2
The utterly lawless, so-called "judge" Richard Posner is not only void of "common sense". Posner is void of any sense.
1
Ignored is that almost every even mildly feminist educated women likely has heard about "fake clinics" -- and exactly why they are called "fake."
Generally available social knowledge can't be cast out of judicial minds. Justice Kagan could have made the same point in general terms. If the men on the bench did not know these facts, they have closed their eyes to common experience and years of news coverage. Maybe male judges have avoided knowing about women's common issues -- after all, how could any of them grant, as they did, a whit of credence to the phrase "sidewalk counselors" to the masses trying to intimidate and shame -- and sometimes kill -- women seeking medical treatment in front of real medical clinics. Or, as Justice Kennedy did, make up their own ideas of emotional states and consequences and have that accepted as anything more than rampant speculation. Moreover, Justice Kagan properly disclosed cn of an outside source was consulted and invited comment by counsel on a party's public statement on the internet ... the party's own words from the party's own lips, not something which need be tested by the litigation process.
So, this particular instance is not a striking example of the dangers of unguided research. Indeed, it is likely that every person in the courtroom -- the judges, counsel and the audience -- knew that #FakeClinics were called fake for this very reason, and that reason compelled the statutory enactment at issue.
2
This was an enjoyable column from Ms. Greenhouse. Possibility #1: The judges know what they know from their own personal and inherently limited experience (judicial "research"). Possibility #2: The judges live behind a veil of ignorance and are bound by the record established at trial, in which the litigants have presented "facts" in as biased a manner as possible. Maybe the upshot is that we accept the courts as a mechanism for dispute resolution even though the output has only a tangential relationship to reality, bears no relationship whatsoever to justice, produces joy for the lawyers, and heaves misery on everyone else.
In this age of online disinformation, if someone has the capability, they can look up the SCOTUS calendar, know which cases are due for hearing and then create a algorithm that would tailor the specific information that pops up on any of the Justice's computers. It may seem innocuous but could have deadly consequences.
So while I agree in principle with the need for general understanding across the board, there needs to be a lot of care taken into how this information was obtained.
2
This op-ed and the comments might benefit from the concept of legislative fact-finding by a judge. Here, a court or judge, so the concept asserts, may resort to fact-finding outside the record in order to manage the policy dimensions of the law, even in the context of an adjudicated case or controversy, and also when constructing a judicial rule. So Justice Sotomayor might respond that, just as the Court may consult statistics presented in an amicus brief put together as a so-called Brandeis brief, she is also at liberty to look at other sources such as websites in order to help her construct a judicial rule that would, say, curb the potential for deception.
"Legislative fact-finding by a judge" is an oxymoron of the first order, however, since judges rule in cases and legislators are elected to make policy through statute.
Trial judges are not officially authorized to rewrite legislation, nor intermediate appellate courts.
Only SCOTUS seems to have this power, which makes it not simply a court but a congress entitled to rewrite constitutional law.
Of course, this is how we desegregated public schools in Brown v Board in 1954 when the rest of government was hung up on white supremacy because so was so much of the population. Today, of course, we're as segregated as then in public education and housing patterns; perhaps there's some connection.
Maybe we need a high court with its "Brandeis Briefs," meaning filled with data not presented at trial where both sides could contest it.
We call it a "court" anyway, despite its being a policy machine.
Okay with me, I guess, but I keep getting thrown by calling it a "court."
1
"But there should be a line between facts — and attitudes — that judges can apply to the matter at hand, and those they can’t. The best the rest of us can hope for is that they have the wisdom, and the humility, to know the difference."
The outside research may be helpful, but should not be a deciding factor. The best judges have the sense to apply the facts without any political, religious or informational bias.
In jury trials, jurors are instructed in advance not to conduct independent research, nor to perform experiments outside of court or in the jury room, nor to look up the meaning of words online, or to consult experts, or other wise investigate the alleged facts of the case they're judging the facts on.
The reason?
Because all parties have the right to their day in court, represented by counsel, and controlled by the court, which rules on what comes in as evidence and what stays out and must not be considered.
When an appellate does what a juror can be jailed for contempt for doing, something is haywire.
But the U.S. Supreme Court invites and considers "friend of the court" briefs all the time, with all sorts of statistical claims that the parties at trial had no chance to see.
Supreme Court justices are not bound by the record, as lower court judges and the parties are.
So, at trial, all sides are bound by the rulings on the evidence, but on appeal in the highest court in the land, the court is not bound.
No, I don't geddit, either.
3
To be honest, my opinion is biased. I pass a billboard everyday for one of these clinics. They want to make sure people "know their options" and give away free ultrasounds. Their names often include the word "choice." They are all lies, set up to manipulate vulnerable women. It is highly offensive. Yes, their advertisements needed to be in evidence (and frankly, likely are). But the actual experience of going to one of these websites is worth it. Because the con is so large.
So, yeah, judges researching stuff sounds bad. But these clinics are evil, and sometimes evil needs to be experienced first hand.
1
Read Slavish Shore - The Odyssey of Richard Henry Dana Jr. by Jeffery Amestoy. Author of Two Years Before The Mast, Dana was a deck hand and knew first hand how cruel a ship's captain could be. Trained at Harvard Law School, Dana represented sailors and slave in court - including the US Supreme Court..
1
Judge Posner is a curious example of someone claiming to use 'common sense'. He famously went to Brookfield Zoo on Christmas one year, remembering that the zoo is open year-round. He wanted to see the primate he had 'adopted'. One suspects he thought his name would be outside the enclosure. Instead he learned that 'adoption' was zoo talk for a method of raising interest and money for charitable purposes. It is said he was very exercised over what he perceived was a slight, or slight of hand. As for the primate in question, I suspect he lost his 'adopted' benefactor Judge Posner.
2
Ha, this is just as knowledge doesn't all come from a book. You must get out and experience it first hand or else it is simple rote learning. Time for the justices to do a walk about and see how the world is doing.
3
Really good thought-provoking article. Linda Greenhouse is the smarter writer on here.
2
As bad as it is for judges to do their own unchecked, uncontested research, it is far worse for them to NOT do so and simply rely on a general picture of reality conveyed to them by a few big metropolitan newspapers and TV networks, which have a very decided bent on what they choose to cover. It is easy to learn when a police officer shoots a black man, and not so easy to learn the police officer is a minority himself. A woman who sees herself as a victim is often given voice. Not so for a similarly-positioned man. What elite judges know about social issues is very much skewed by a few media organs.
1
If I can be assured that an independent team working for all the justices on the court has thoroughly vetted the facts as they can be discovered, then I would reluctantly agree to the idea that no extra research (which as has been pointed out can lead to cleverly designed web pages appearing to be legitimate but are heavily slanted towards a point of view) should be done, or at least admitted to by a justice.
On the other hand, if Dr. Richard Feynman who served on the Challenger Shuttle disaster panel wouldn't have done critical thinking which was the hallmark of his career, we may never have figured out that cold temperatures weren't good for booster seals.
The old computer adage Garbage In, Garbage Out could apply to many decisions reached by the court if thorough research is not guaranteed, no matter whether by the appellates or a thorough team approach at the highest court level to make sure something wasn't missed.
2
I was on a jury trial; a bicycle/car collision. The biker sued the driver for injuries. During voir dire I disclosed that I did "simple" bike repairs during my high school summers. I was empaneled. The driver testified that he turned in front of the bike with plenty of room to spare & the bike struck his car. He went on to say that the bike "had no brakes." His attorney dismissed that part of the testimony & chose to concentrate on the event's time/space component. In the jury room the my colleagues found the "no brakes" part laughable & were inclined to find for the plaintiff; until I showed them that he was riding a "track bike" on public streets, which, in fact, has no brakes. There is a subset of city cyclists who ride these brake-less, non-coasting machines for no other reason than they want to. They are dangerous & more to the point, they are giving away their ability to protect themselves & others while riding it. We unanimously found for the driver. The judge asked how we did this. The foreperson explained we examined the bike and "we discovered" it did not have brakes, just like the driver said. The judge admitted he had thought that part of the testimony was silly because he "knew what he knew" about bikes. Bike have brakes. Case closed. This show us all how flawed the process is. A process which, in capital cases, can take lives. If appellate courts are going to reexamine facts they should rely on experts for greater scrutiny and not their own research.
11
Except the rider of a track bike can stop the rear wheel by using the legs to stop the crank from turning. The bike did have a brake, just as effective as a bike with only a coaster brake, as many kid's bikes have.
1
Hi Yeller,
No calipers & no pads = no brakes.
An equation for tragedy.
A kids bike coaster brake is, well, a brake. It gives you, and this is the important part, a mechanical advantage. And kids bikes are more often than not, equipped with front wheel calipers. Back pedaling, skip-stopping and/or skid-stopping a track bike is not a brake. Skidding itself is physically inefficient, hence the invention of anti-skid technology. It's illegal to ride off-track without brakes. You will lose the argument in any court.
1
It seems like these days our Supreme Court justices have already decided a case before it is brought, and the hearings are just a way to assemble their points in the rationalization of their predetermined opinions.
1
I’m an appellate lawyer, and the notion that judges are computers applying an objective algorithm called “the law” is almost laughable. Most judges care enormously about being “fair" to the litigants in front of them and to society as a whole. Of course, people can disagree about what “fair” means. That’s why it’s so important that we consider a potential judge’s perspectives and sense of common sense before elevating that person to the bench.
My favorite oral argument question of all time was when I watched a judge at oral argument interrupt a prosecutor and ask, “How is that fair?” The prosecutor didn’t understand the question, so the judge had to ask it again.
2
I too am a litigator, and have learned that nothing should terrify a party in litigation more than a judge who wants to be “fair.”
Judges should serve as impartial umpires making determination on the law and the evidence.
Can you imagine an umpire calling a pitch a ball - instead of a strike - because in the umpire’s option that would be “fair” ?
God protect us from judges who seek to impose their personal viewpoints of “fairness” - that is the path to tyranny.
1
I disagree. Considerations of fairness shouldn’t overwhelm a judge’s decision, but especially in close cases, fairness should inform the decision.
Some judges are more prone to fairness arguments than others, but to at least some extent, they all use their sense of fairness as a guide, whether they admit it or not. Chief Justice Roberts’ line about just calling balls and strikes is, at best, political spin.
Justice Kennedy's comments were appropriate and Justice Sotomayer should not have researched the issue on her own. In this day of the internet, judges and jurors can freely obtain information. Having said that, it is never a good idea that they independently research the facts for several reasons that are firmly embedded in our traditions of justice. First, it deprives litigants the chance to examine and object to evidence so that there are safeguards and openness to the process. Second, the information might be incorrect and the error may not be corrected, especially if the judge or juror does not disclose her independent research. This principle applies to even minor factual disputes. I recall an incident where a defendants' residence, specifically whether he was a resident of Maryland before filing, was at issue. The judge decided to perform his independent research and drove by the stated address, which he could not locate. What he did not know was that the developer had changed the address with the planning commission post construction and that the house, which was in a new development, had not updated its posted address on the exterior. The judge was convinced from that point that the debtor was lying, although he was truthful. If the California defendants who were defending the California statute legitimately believed that the legislation should be supported because of patient confusion, they should have introduced evidence on the issue in the trial court.
1
Boy, this case and others similar open a can of worms.
This case seems to be screaming for a new federal rule. New fact finding by judges at the appeal level would seem to be a good thing. However, it must be limited somehow. And it must be fairly stipulated for all parties.
In this brave new world of "alternative facts," this would seem to be a tall order.
They say obvious facts have been left out at trial. This betrays unbelievably poor lawyering, as well as an antiquated system.
And that's what this case is about. It's not just about the Supreme Court, it concerns applying the law to the facts - the basis of our legal system.
3
Cases should come to the Supreme Court accompanied by necessary information, and lower courts should be able to compel the gathering and presentation of this information.
Also, if a law obviously will not work in practice, justices have to assume and assert that the lawmakers, for their own reasons, wanted to enact a law that would give the appearance of something without its reality. Congress has the right to do this, but should not be able to rely on a court's silence about what it has done. Pretending that a law was enacted to work when it obviously will not work, is an abdication of judicial responsibility, and a way for justices to introduce political biases without acknowledging what they are doing.
2
The overturning of the VRA's sections applying to bias - and the "reasons" given for their overturn - could have used a little more "outside research" before being dismissed as "no longer necessary."
Within DAYS of that decision, states were retrenching to disenfranchise minority voters.
BAD decision by sequestered jurists.
1
I think Kagan's approach was the correct one in both cases. Greenhouse is heading into the outer zone of a very slippery slope. Do we really want to turn Supreme Court Justices into living fossils of the year in which they become judges? Also, it is not "common sense" that is at issue when justices need to look something up on the Internet or experience something firsthand, viscerally or otherwise. It is "common knowledge" that the justices are seeking, and that is a very different thing.
Here's a fun example:
Most of us who have watched a lot of nature shows, if presented with a photograph of a thin, pointed five foot long beautifully spiraled, hornlike thing and told it came from an animal, would likely identify it as coming from a Arctic Narwhal. Fewer of us might remember that only the males grow the enlarged tooth which is covered with nerve endings. And some of us would know the tusks or teeth were once sold, to those lacking the necessary common knowledge to see through the scam, as unicorn horns.
I'd prefer my justices to not buy any unicorn horns.
3
The more significant aspect of the development of the factual record is the selection bias that taints the cases that the court decides to hear. The court waits for cases with favorable facts in order to be able to decide issues of interest. This furtive activity allows the court to retain the patina of objectivity, but the reality is that the result has already been largely decided by the facts of the case. An example is the juvenile sentencing decision in Graham v Florida, the facts of which were very favorable toward finding that juvenile life without parole sentences for non-homicides were improper. Different facts may well have led to a different result, as indicated in Justice Roberts concurring opinion, "The Court uses Graham’s case as a vehicle to proclaim a new constitutional rule—applicable well beyond the particular facts of Graham’s case—that a sentence of life without parole imposed on any juvenile for any nonhomicide offense is unconstitutional. This categorical conclusion is as unnecessary as it is unwise." No one should ever be misled into thinking courts are just finding the law. They are making it up as a political entity.
5
Another fine example of how the comments section is often the most insightful and truthful portion of my NYT experience. Thanks Robert.
" ideology is no more than “preconception writ large,” Judge Posner wrote in his 2010 book. Posner is correct - but why fear this or (worse) be naive or hypocritical and assume that only the other side is biased ? The reality is that courts are simply not as high-minded and neutral as they purport. This applies as much to partisanship as it does to deference to the trial court as "arbiter of facts".
Again, liberals are not immune to this. Cases like Abood (public unions), Roe (abortion), Chevron (deference to the executive branch) and Baake (affirmative action) are just a sample of the cases decided by the liberal majority under the Warren and Burger Courts. At issue today is whether such precedent should remain notwithstanding 35 years of a conservative majority on the court.
2
Considering the new era of lying on the part of the President, most of his cabinet, Conservatives and Republicans, how else are SCOTUS justices supposed to learn the truth. Reliance on the judicial record is fine when you could be sure it was factual. Even SCOTUS justices read enough, I am sure, to place some doubt in their mind about what they are hearing and reading in some cases. It should be mandatory for them to confirm facts independently. Then in the chicken plant case the experiment would have been more carefully conducted vs. somewhat surreptitiously. Facts matter. The truth matters. Even for, maybe more, the SCOTUS from which there is no remedy.
4
I share Linda Greenhouse's view that there are serious pluses and minuses of a judge or justice going beyond the record in a case. The 2005 Supreme Court decision in Van Orden v. Perry is an example. Outside research would have revealed a number of facts that, in my opinion, would have resulted in the opposite result -- namely, that the State of Texas's display of a 1961 Fraternal Order of Eagles Ten Commandments monument on its State Capitol grounds violates the Establishment Clause. I offer the following additional facts: (1) contrary to the stipulation of the parties, the monument is NOT an element of the State Capitol's Historic Landmark designation, (2) none of the 11 Ten Commandments "depictions" Chief Justice Rehnquist cited in his opinion are similar the Eagles' monument (i.e., none of his depictions contain an English version of the Ten Commandments; most are blank tablets or have Roman numerals); (3) Rehnquist erred in not calling the Eagles a religious organization (like he called them a patriotic organization), (4) Judge E. J. Ruegemer likely committed perjury in multiple affidavits when he stated that the Eagles program which he founded was not intended to be religious instruction (CRITICAL point), (5) the Eagles' monuments are sectarian, not nonsectarian and (6) removal of the Eagles' monument from public property would constitute religious neutrality, not hostility towards religion. The lack of "the facts" led to the wrong in holding in Van Orden.
2
Judges know what they know from their natural human life experience context and perspective. They are not gods nor demigods nor saints nor sinners.
The law is not fair nor just nor logical nor moral nor objective. Enslaving Africans denying their humanity and treating them separate and unequal were both lawful in America.
3
We're indebted to Ms. Greenhouse for yet more examples of SCOTUS needing fact-checkers, piled on top of previous demonstrations by Pro Publica regarding issues such as voting rights:
https://www.propublica.org/article/supreme-court-errors-are-not-hard-to-...
And just like other groups, it has been proven SCOTUS is subject to in-group bias, which is not being sufficiently guarded against:
https://www.nytimes.com/2014/05/06/us/politics/in-justices-votes-free-sp...
even on important issues such as free speech.
SCOTUS may of course pursue whichever course they choose, but if they are provably biased and don't take action to correct such bias, they damage the institution, risking it becoming irrelevant.
4
"This Court should not be ignorant as judges of what we know as men." -- Felix Frankfurter
5
As long as the USA allows its most gifted lawyers to become judges because of their political allegiance truth and justice will not return and the union will dissolve.
Antonin Scalia was a brilliant legal councel but was the worst justice ever to contaminate the Supreme Court and may yet cost you your country.
21
Time to start putting some non lawyers on the Supreme Court. In fact the judiciary is a monopoly. Everyone should have the opportunity to be seated.
3
Patrick,
I have lived in communities where the judges were the handpicked wisest of the wise. It works very well.
In Canada the law societies pick their best and most scrupulous in their integrity to become judges. I believe back in 1776 where lawyers were philosophers that they could imagine that in 2018 we would choose shysters and sophists to interpret law.
There is a reason that Gorsuch received almost zero Democratic votes and Garland's integrity was recognized by both sides.
just like to say that Linda Greenhouse is a treasure.
11
Exercising legal judgment absent context and broader knowledge becomes a matter of fundamentalist application of preconceived principles, emotional response, psychological predisposition, and a host of other arbitrary factors, which, though always present, should in ideal circumstances be tempered by that same broad knowledge and context.
4
As someone with some VERY smart siblings, perferct SAT scores, etc., these types of people have NO practical knowledge. It seems like the clerks are the 'practical knowledge' pipelines to the judges, an image I find very similar to the Laputians from Gullivers Travels being struck by their pea - filled gourds by 'clappers' in an effort to bring them back to reality. Scalia could have used more than two clappers..
2
Except that SCOTUS law clerks themselves are usually of the "very smart" ilk, often from elite universities, straight from undergrad to law school, having zero-to-little practical knowledge or experience of the real world to offer.
4
What should a trial judge do, confronted with one party represented by able counsel and the other a poorly educated person appearing pro se, with no knowledge of how to build a factual record? The law says latitude and solicitude should be given to pro se parties, but is the judge bound to sit there while the represented party piles on unrebutted (but rebuttable) facts?
3
Does this mean that the justices can not go on paid excursions with the Heritage Foundation, AEI, etc? Of course no issues facing the court are ever discussed. Justice Roberts court will be know for its political bent and right wing law making e.g. Citizen’s United. No respect.
20
Regarding Judge Posner's protective clothing experiment, the workers' lawyers original arguments were evidently complete. I would have presented a step by step time analysis of a worker's activities that were required at the start and end of each shift for donning and doffing protective garb. This would have included time to go to the changing building, time to wash off blood and time any other needed procedures. Times could have been based on documented stopwatch timed experiments and/or videos. Had this full procedure been included in the record, Posner could have verified all or parts of it by experiment. However, it appears that the record did not present a complete picture, thus leading to research that only addressed part of the timing involved.
2
Correction: "...the workers' lawyers original arguments were evidently [in]complete."
3
Except it was complete, the workers lawyer did mention the time walking, the judge was/is a corporate simpleton and his 'experiment' proves it.
1
Cases are lost all the time because of missing or insufficient factual development. How could someone be get into the record violent video games? Offer the games in evidence. What about the fake nurses in clinics? Perhaps depositions, discovery. Or this even necessary in the case before the court if the law prohibits an operation from holding itself out as a clinic if it has no medical staff. Surely a state can regulate false and misleading statements by an anti abortion non clinic.
4
I've always wondered why judges opinions weren't subject to Bayesian analysis. That would entail explicitly assigning weights to factors in a decision.
If during appeal it were shown that a factor was wrong, the resulting decision could be mathematically recalculated. If the factor had low weight its effect on the overall decision would be negligible. If it were a high weight factor, the original decision may need to be overturned.
2
Judges have biases and assumptions, as do most human beings. Judges, perhaps especially Supreme Court judges, may have little experience in the Other Worlds outside law school, the law office, the courtroom. Their insulation from "real life" problems and experiences surely influences and may inhibit their assumptions and decisions. Judges are appointed based in large measure on their known political views, although some justices are changed through the knowledge acquired after they've been on the bench for awhile. Some while serving or after retirement may regret decisions. It can be commendable when a judge tries to "walk in another person's shoes" as Judge Posner tried with the poultry worker dispute. But trying on the garb in chambers is not the same as the more complicated situation faced by real workers in their real-work environment.
If knowledge may lead to wisdom, then maybe we should prefer more knowledge over less knowledge where the stakes are so high.
Doug Giebel, Big Sandy, Montana
3
I'll add: "A little learning is a dangerous thing," which should emphasize that little adjective "little."
dg
2
One needs a strong understanding of statistics and the statistical method which form the foundation of most modern scientific analysis. A simple casual experiment is about as unscientific as it can be. And to think that judges, no less Supreme Court Justices, base their decisions on, or are at least influenced by, such irreproducible and unscientific pseudo-experiments is worrisome.
4
In Man for All Seasons, Sir Thomas More took a boat ride from his home in the country into London. When the boatman quoted two rates -- one for up river and one for down river -- Sir Thomas pointed out that the law prescribed the same rate in both directions. The boat man replied "The man who makes the law doesn't row a boat." to which Sir Thomas said, 'You're absolutely right. Double if you get me home by morning.'
5
And then there are instances where judges simply make up facts to support obviously political decisions which ignore precedent and the Rules of Decision of the federal courts: See, e.g. Citizens United (Kennedy), Shelby County (Roberts), Heller (Scalia).
19
or Smith v. Doe, 01-729, the unanimous decision that sex offender registries are not punitive and therefore not subject to the prohibition on ex post facto laws.
4
VP Gore vs Florida is another
5
Officially, Bush v Gore
" “The end of man is to know,” Robert Penn Warren wrote in “All the King’s Men,” his ever more timely novel about the use and misuse of information in politics."
"All men by their very nature desire to know" (Aristotle, Metaphysics, Line 1), about 2,300 years ago. A lot of our current confusion is caused by people thinking they're having, or citing, an original idea.
1
Sorry to be a stickler, but those who are reading about the Supreme Court probably care more than most about precise language when it comes to "begging the question."
https://afterdeadline.blogs.nytimes.com/2008/09/25/begging-the-question-...
2
The so-called, but fake, "pro-life" movement is proficient at operating facilities that fool women into thinking that they will get the health care they expect, and need. "Pro-lifers" have been preying upon the most vulnerable for decades, and violating their civil rights, every time. Judges must step in, to enforce constitutional rights.
18
I want judges to be as knowledgeable as possible. To understand the intricacies of a highly technical case, a judge taught himself to code (in Java, IIRC)--good for him.
Today one of the stumbling blocks in SCOTUS deciding about gerrymandering is the apparent phobia that the Chief Justice has about elementary mathematics. That is embarrassing.
The only people who prefer ignorant judges, who can be more easily fooled, are lawyers for the prosecution and defense.
12
This issue was raised in a dissent by Oliver Wendell Holmes in the case of Frank v. Magnum. Paraphrasing: If a courtroom is filled with people pointing guns at the jury, that fact might not be on the record, but it would surely be of interest to the appellate court.
2
There is another dimension to this problem. Judges frequently make new law. In deciding what, if any, change to make in the law, they must assess the likely future consequences, political, social or economic, for society. However, particularly in an adversarial system, the information guiding the decision is often inaccurate, incomplete, biased or even simply unenvisaged (the unknown unknowns). The judge may also bring her own values to bear on interpreting the information that happens to be available, and on what she claims to see as the future in her personal crystal ball. It is not difficult to find egregious errors of judicial analysis or prediction in famous past decisions, some of which brought serious adverse cosequences to society, although as Judge Posner has pointed out, there is still insufficient research on the empirical results of judicial law making. It might be thought that this inherent unpredictabilty in the process, and the past mistakes, might have inhibited judges from making new and controversial law, but there is little evidence of that!
6
It seems to me that a judge going outside the record is a very small problem, if it is a problem at all. A much bigger problem is the growing number of judges with a right wing ideology. For example, one can predict with almost absolute certainty the result from a 5th Circuit three judge panel composed of jerry smith and edith jones. Although neither of these two is new to the bench, their right wing ideology has been on prominent display.
5
It's also a consistent "no-brainer" (all possible aspersions intended) how the five, white, male Roman Catholics on the Court will decide on abortion and Christian prayer issues. And so-called conservatives were afraid the horrible liberal Democrat Kennedy was going to defer to the Pope!
3
I hope that someone who, for instance, doesn't believe in evolution, can put aside his preconceptions & address relevant issues by their merit w/o his own prejudices interfering. But we don't see that very often.
2
The idea that judges are not supposed to see any sort of relevant information in making their decisions is astounding. Apparently, common sense is also not permissible. This article weakens my already tenuous confidence in our court system.
12
When appellate judges do independent research outside the record specifically to help decide the case correctly, some people may consider the judges as hard-working and conscientious.
In fact, those judges are lazy. They are looking for a shortcut to the truth, and their good intentions do not excuse the laziness.
The hard slog requires noting the missing facts, questioning all counsel at oral argument about the missing facts and then writing an opinion that explains why the absence of the facts may be resulting in the affirmance of an unjust result at the trial level.
At least a road map has been provided for the trial of a similar case in the future.
Because an appellate panel sometimes can send a case back to the trial court with specific instructions about facts to develop, justice in those cases is delayed, but not necessarily denied.
The problem in the Supreme Court is that the overwhelming majority of cases are not appeals as a matter of right. The Court tends to “solve” the problem of missing facts which would have aided the losing side at trial, by issuing a perfunctory dismissal, revoking the writ of certiorari.
In a criminal case, that reality inevitably favors the prosecution and conservatives like Justice Alito.
Judges, including Supreme Court justices, are products of their own unique experiences, so what they have learned in the past -- not from research for the case at hand -- is reflected in their views.
That reality should not be criticized.
1
The United States has a huge and growing problem with judicial corruption. No, not the usual kind--no money is passing hands; but a far bigger one--political and intellectual corruption. As a federal appellate practitioner, I learned that more often than not, whether I won or lost a case depended not on the righteousness of my cause nor the expertise of my advocacy, but the predilections of the judges before whom I appeared. With Trump appointing judges whose primary qualification is their lack of qualifications, this is becoming a growing danger to this country.
Returning to a fair and honest judiciary will be a long and arduous task; but Ms. Greenhouse's prescription is a good first step, that starts with the underscoring of judicial humility. Appellate judges must become reacquainted with the fact that they were appointed to be arbiters of the law and not philosopher kings. What they think is right, wrong, or good policy, should be irrelevant; their task is limited to applying the law to the facts in the record and nothing more.
16
I have been alarmed at the increasing numbers of opinions that have come down, if they are reliably reported to us lay people, where the core principles exemplified by the figure of Lady Justice, standing with scales and her blindfold is being violated. Facts, above all other things, need verification, and sound decisions reached. If same results aren't reachable by a common person, after education to the facts, then the system is far from the perfect one we were taught as schoolchildren.
1
How do cases that don't have a sufficiently developed record even get to the Supreme Court? For that matter, even intermediate courts - who basically have to take cases as they come to them - should never complete the record themselves. If the poultry case record didn't even have something as crucial to it's determination as the actual time it takes to put on or take off work clothes, then it shouldn't have been decided without remand to the trial court for a finding of that fact.
The same with the Carhart case. The fact that Kennedy - not a female person, I'm confident the record would show without fear of contradiction - would base his rationale for such an important opinion on the psychology of women who lose a child is outrageous. For him to chastise a fellow justice for having the audacity to look at a website is too rich.
27
You also must remember that, in deference to the words of the Constitution, neither Justice Kennedy nor the other four white, male, Roman Catholic Justices are going to come right out and say, "that's against my religion," which they would if they were honest and self-aware.
5
I share Linda's admiration for the much vaunted Judge Posner, but his problem was that he didn't listen to his colleagues. Did not Justice Wood circulate her opinion prior to Posner's final decision? It seems Posner chose to ignore certain evidence in favor some other. This is indeed problematic, since he knew he was going "beyond the record" in the first place. So,in this case it appears he was merely looking for evidence which reinforced his already prejudiced opinion.
6
The conducting of "research" is part of a bigger issue -- when should judges -- and juries -- stick to the record and when are they allowed to go beyond. And legal scholarship does recognize there are times for both. I'll use jurors, since it's easier. Should jurors go and try to investigate on own the facts of the specific case before them? Pretty clearly not. But at same time, should they use their common knowledge in making decisions. Absolutely -- indeed, they're told to do so in the instructions. When assessing credibility of witnesses, they use the same clues we all use in daily life in deciding when someone's telling the truth and when not. In deciding whether the particular conduct in question was negligence, they apply their understanding of what a "reasonably prudent person" would do in the circumstances -- for instance, how a reasonably careful driver would respond to the situation. Legal scholars call it the difference between adjudicative facts and legislative facts. Posner's action dealt with adjudicative facts -- the specific facts at issue in the particular case -- and so crossed the line, If there was a dispute as to the facts and it was material, it was wrong to decide it on a motion -- that's why there's trials. Legislative facts is that more general body of knowledge about life that legislators use when deciding whether to adopt laws -- and which judges then use in assessing if those decisions are reasonable or if they are arbitrary.
8
I like this. When a judge has to interpret a law, sometimes the judge has to determine the policy behind it — which the legislature almost never expresses as to particular laws and often in generalities as to schemes of law. Here is where a judge’s professional experience, institutional memory, etc., come in. But as to particular facts important to the behavior of the parties in a case, a judge should never go beyond the record. Here is where both Mr. Justice Kennedy and Ms. Justice Sotomayor have made their mistakes. I had a case once in which credibility of a witness may have depended on the location and distance between underground stations in London. London Underground maps are easy to use and reliable, but did not accord with the testimony exactly. What a great way to say the witness was lying, right? NO.Without more evidence how was one to know if trains were diverted on that particular day, there was construction on the lines, etc. Of course, there is judicial notice of common facts — like highway routes in the judge’s area — but going outside the record is dangerous and often unjust and can bolster bias and make personal emotion too powerful (Ms. Sotomayor and Mr. Kennedy).
2
Wisdom requires humility, and information perhaps backed by a diversified team of experts/consultants for the problem at hand...converted into knowledge and understanding, in today's societal context. It has to transcend the dead letter of the law, become alive and useful and just for the common good. How do you reconcile these universal aims when the Court becomes trapped into politicization? Akin to religious dogma or rigid partisan ideology, oblivious to prudence (doing what is right, however difficult). It brings to mind the fact the Court is composed by frail human beings, prejudiced in so many ways even if unaware of it; otherwise, how could you forget the inanity of "Citizens United", and the sad result of discouraging voters from voting when the dice has already been thrown and our luck decided? Just because I may know what I know by intellectual probity doesn't mean the decision to do what's right can be taken for granted. Being a devil's advocate, I must say the devil is in the details.
3
Many lawyers suspect that judges in the trial courts consult with each other concerning some legal issues that come before them and even some alternate facts that may be adduced outside the record. In an appeal an atty can get his brief stricken for alleging matters "outside of the record."
It is no surprise that the justices on our highest court sometimes seeks additional information outside of the record on appeal. This may be mitigated by the fact that Supreme Court Justices are deciding matters of national significance and of more general significance than adjudicating a dispute between private parties. In essence, they are making policy for the entire country in addition to resolving individual cases.
6
But I don’t think you should get information from sources that themselves may be biased or made simply for advertising purposes — like some websites.
4
In this case, the websites themselves were testimony to the falseness of the claims.
Two questions:
1) Why do we not ask about approaches to establishing facts when evaluating whether or not to confirm jurists?
2) Do appellate jurists have the option of remanding the case on the grounds that the trial record provides an inadequate record to establish the facts? One motive for this question is that appellate jurists doing their own fact-finding is appealing in theory, but assumes that they are capable of doing so properly. Trial courts are capable of marshaling greater resources to such an effort and such capability should be used.
1
I've sat on a few juries and the instructions were very clear about not performing research. It seems strange that the same doesn't apply to judges.
2
Why is an attempt to gain knowledge and context necessarily prejudicial?
I don't see anything wrong with a jurist attempting to expand his/her knowledge base by doing research into an issue at trial.
And I'm quite willing to wager there have been more bad legal decisions made to a lack of knowledge about the particulars than there have been because jurists attempted to gain more.
15
The problem with a jurist doing his or her own research is that neither party has the opportunity to contest the jurist's findings through cross examination or offering rebuttal witnesses. Your client may be hung for reasons you (the lawyer) are unaware of and could contest.
3
When a judge says he/she is following only the restraints of the constitution, that judge is denying that they live in our present day world, something that is absurd. They are constantly gathering information that effects their rulings and denying this only makes them disingenuous.
If a judge needs information to form a decision from actual experience they should ask for it openly in court before all lawyers involved.
Perhaps this may require extra time in court to air each side, but it will lead to fairer justice.
11
In my opinion, an essential attribute for a judge is that the judge is aware of his/her personal biases and prejudices and actively seeks to refrain from allowing the biases to influence decisions. A difficult but necessary task. Anthony Kennedy clearly did not adhere to this in the case mentioned. As far as doing independent research, if a judge/justice is curious about a fact that is not explained in the case record, the judge can exercise self-restraint to wait until after the case is decided to satisfy his/her curiosity. We rely on judges, especially Supreme Court justices, to do a specific job; they are not merely your average curious web surfers.
If the attorneys representing California did not introduce evidence at trial of the fact that many pregnancy crisis centers only give the appearance of having trained medical personnel on staff, they did a poor job.
39
The notion that "common sense" and "The Bible" are all anyone needs for life in the 21st Century is absurd. Most graduates of law schools were not science or math majors and most have a feeble, if any, knowledge of statistics. Their deficiencies in education makes them poor choices to pass judgement on scientific issues involving health, public safety, environment, pollution, and the computerized and increasingly artificially intelligent world of today and tomorrow. Relying only on what they learn in meetings of the Koch funded Federalist Society they have a warped view of the world around them.
Some Justices refuse to read or cite judicial opinions from respected foreign courts lest their opinions be swayed by learning from other people of high caliber.
Their law clerks are never chosen for their scientific background, engineering training, knowledge of computer science, mathematics, or modern molecular biology and genetics.
The scientific method underlying modern civilization does not rely on "common sense" and "The Bible" is never cited in any medical, scientific, engineering, or IT journal.
How can these nine Justices make the correct judgement when they and the people who surround them are so ill informed?
66
"... when it comes to the facts, appellate judges are bound by the record established at trial. "
OK, as far as the facts go, but facts without context are a rather empty shell. Within the two gerrymandering cases this session are facts about MD and WI politics, but any decision, as in the case discussed here, can impact the entire country. The facts leading to appellate decisions may be case-bound,but the context is not.
A gun case like Heller has its facts, which do not include the context of 35.000 gun deaths per year. Likewise any case with broad reach: Marbury, Dred Scott, Plessy, Brown, Loving, Bush v Gore, Nixon v Tapes, Roe, Obergefell, and so on. The appellate courts below SCOTUS should restrain themselves, but since Marbury the role of SCOTUS is much greater. Scotus puts individual, often local, cases in the national context as binding precedent.
Scotus should not decide against the case facts, nor embellish them, but in deciding for the nation, SCOTUS is proxy for the national context, and cannot ignore its role as such.
13
The significance of a case doesn't justify independent research by the jurist. Virtually all SCOTUS cases have significance beyond the the immediate parties and the justices are well aware of this. Moreover the "context" of the case is almost always set forth in the briefs that accompany the arguments. I would not be happy having my case decided by a judge's "independent" research of which I have no knowledge. Too much room for confirmation bias.
3
I hardly ever disagree with the wonderful Ms. Greenhouse, but here there seems to be an implication that I find misleading. The implication is that when something in a case piques an appellate judge's curiosity, then even if it isn't relevant to the legal issue at hand, personal research for an answer is prejudicial. But what, actually, is the difference between Kagan and Breyer playing a violent video game and Kagan and Breyer holding differing ideological views that lead them to view the law of the case differently? At least the bias involved in doing one's own research is reasonably self-evident: are the impact of Justice Alito's ideologies on his decisions equally clear to him?
10
Slightly off-topic, how should I understand the distinction between the 'compelled speech' that is at issue in the current case and the regulations of California's proposition 65 which requires that businesses indicate when substances 'known to the state of California' to be harmful in various ways are present? Both of these require installing a sign somewhere visible to the customers, and presumably both of them would have the effect of making someone less likely to want to patronize the business in question. What is the substantial legal difference between these things?
9
One keeps thinking of the Brandeis Brief, the responsibility of the lawyers and others. In the case of commissions and other government agencies, there is a possibility of better evicence. An argument against the appalling history of Supreme Court anti-labor diciesions is based on judicial inability to comprehend the real facts of the case because of the social class from which the Justices come.
45
The obvious question is why would the attorneys in court did not adequately answer the questions that the judges felt required further investigation. I think the judges should have asked for further information from the attorneys in court, so that opposing attorneys could rebut that information as best they could.
Any further information a judge thought was required should have been presented to all parties involved as early as possible.
13
There is an important distinction that should be drawn. Michjas gets to one aspect -- judicial notice of facts relevant to the case before a court on appeal or at trial. The more important aspect is the effect of the decision on the evolution of the law. The Supreme Court is committed both to reaching a just decision in the case and to writing an opinion that guides the correct and orderly evolution of the law governing the facts of the case. Bold decisions emphasize "correct" while incremental decisions emphasize "orderly".
Justices come to the court late enough in life to have formed opinions about the legal system, the law and the socio-economic issues that affect our society. Citizens hope that justices will have the knowledge, experience and wisdom to make wise decisions. Justices must continue to educate themselves during their terms. That necessarily involves researching facts to understand how their opinions are likely to affect our society.
24
Developing the record and finding the facts are roles of trial judges, not appellate judges. And while independent judicial research is not preferred, trial rules do provide for it.
A judge can take "judicial notice" of facts the judge believes to be uncontroversial - Fifth Avenue is west of Madison Avenue, for instance. But when a judge "takes notice" of a fact not in the record, the trial rules of evidence require that the judge tell both sides in the case, and allow them the opportunity to contest the supposedly uncontroversial fact.
The problem with appellate judges taking judicial notice of facts - aside from the fact that it is not provided for in the rules governing appellate procedure - is that there is no ready mechanism for contesting judicial notice. The problem is at its most acute in the Supreme Court, because there is no place to appeal if the Court takes notice of a demonstrably false "fact."
politicsbyeccehomo.wordpress.com
18
I would add the following to this thought provoking OP-ED, what Judge Posner and his kindred spirits did is what is done everyday in science: obtain empirical evidence where it did not exist and then try to credibly interpret what the resulting data actually means.
15
"...what Judge Posner and his kindred spirits did is what is done everyday in science...."
This may be what many of us think socila science does, but single subjects designing, observing and interpreting what they see would not be social science. To meet the standards of science an experiment must be designed with enough subjects and controls to allow statistical analysis to determine is the procedure shows what it purports. Easier said than done. Scientific careers and reputations can be destroyed by faulty experimental design or statistical analysis. A one off examination to see how things might work or feel can be interesting, but it is hardly social science, and it can be profoundly biased and biasing.
17
DWilson, thank you for your thoughtful response. Please know that much of what you have stated is correct [per my ca. forty (40) years of professional experience in this field].
When we work with the students, we usually request that they do at least three (3) trials to determine if an one-off experiment was actually an anomaly.
Should the results of this simple test be repeatable (at least three times), then (without a full blown statistical analysis) we can still consider this trend to be empirically useful.
In extending this impression to the Scientific Method, at this point we have a working Hypothesis. [The rigor that you have noted is justified for doing more with this simple study.] I think that short of what you have properly indicated, it is a working Hypothesis of this kind that Judge Posner appears to have sought.
Strikes me as a largely meaningless question.
Federal judges should not go beyond the letter of the law, or they risk becoming unelected tyrants. However, the letter of the law often is ambiguous, and requires insight beyond mere legal training to effectively balance interests.
Beyond that, human beings will do what they will do, and judges are not saints -- they will rule based on personal ideology whether doing so is "right" or "wrong" in some absolute sense. Same with "facts" that are generally known but not presented in evidence.
Judges are not hardware and software.
1
This issue is largely governed by FRE Rule 201, which states as follows:
(b) The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
3
It is the court - not an individual judge or justice unless sitting as sole trier of facts - that may take judicial notice. Further, not an appellate court which is supposed to be restricted to the record below, as Ms. Greenhouse points out.
12
The rule is widely applicable to appellate courts. Look it up.