WASHINGTON — 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.”
The justices can deal with an execution and a case related to abortion in the same day, as happened this week. But neither qualifies as the court’s hardest topic, Breyer said.
“Family law is the most difficult subject I think there is. It’s horrible, human, terrible,” he said during arguments Monday in a divorce case. “It’s really difficult.”
The justices were discussing the breakup of Minnesota residents Mark Sveen and Kaye Melin. When the two ended their 10-year marriage in 2007, a 16-page document spelled out how they’d divide up their assets. He got their Ford F350 truck and a 1997 Nissan pickup truck, for example. She got a 2004 Pontiac Grand Am, a snowmobile and an ATV.
But it’s not clear what Sveen thought about one important question: Should Melin remain the beneficiary of his life insurance policy, now worth more than $180,000? The state of Minnesota thought it answered the question for the exes. A 2002 state law says that when a couple divorces, the ex-spouse is automatically removed as the life insurance beneficiary. About 30 states have similar statutes.
Sveen died in 2011 and never changed the primary beneficiary on his policy. Sveen’s children from a previous marriage say Minnesota’s law makes the money theirs. Melin says it’s hers. The law can’t apply to the policy because it was purchased before the law was written, she says.
The justices seemed inclined to side with Sveen’s children.
Wednesday’s Supreme Court arguments pulled back the curtain on another aspect of high court cases not often discussed in public: How the Justice Department decides which side to back.
The Solicitor General’s office, which handles Supreme Court cases, basically auditions both sides, listening to and questioning their arguments before deciding whether to intervene and how.
The topic Wednesday was tribal sovereignty in the context of a property dispute between an Indian tribe and a couple in Skagit County, Washington, about 100 miles north of Seattle.
Justice Elena Kagan credited the lawyer for the couple with presenting a new and perhaps stronger rationale for why his client should win.
Roberts was willing to acknowledge the legal prowess of the couple’s lawyer, Eric Miller. But Roberts, once the deputy solicitor general, said proper credit goes to the Justice Department, which first raised the argument Miller was making.
Miller sensibly agreed with Roberts, but Kagan didn’t. She served as solicitor general before joining the court.
“Did that happen because you had a conversation with the solicitor general in which the solicitor general knew which sort of arguments you were going to make?” she asked amid laughter in the courtroom.
Apparently not one to contradict a justice, Miller again agreed: “We had a conversation with the solicitor general.”
As it turned out, the Justice Department is backing the tribe.