The Supreme Court recently heard oral arguments in NIFLA v. Becerra, a case out of California centered around abortion that has big ramifications regarding the issue of free speech versus state-compelled speech, according to Fox News.
At issue is a 2015 statute passed by the state of California which requires all pregnancy-related facilities to conspicuously post a disclosure informing women of the state-provided “free or low-cost access” to various forms of prenatal care, such as abortion. The law also requires unlicensed, non-medical facilities to prominently inform their clients that they are not licensed medical providers.
However, the law was written with so many carveouts and exemptions that it ended up solely targeting a number of explicitly pro-life, nonprofit “crisis pregnancy centers,” which counsel women on options other than abortion, such as adoption. However, the law compelled these centers to inform the women of their abortion options.
David French of National Review noted that during arguments in front of the Court, Justice Sonia Sotomayor seemed to step outside the traditional norms of evidence submitted in the case and earned a rebuke for it from her colleague, Justice Anthony Kennedy.
In questioning the attorney representing the plaintiffs — Mike Farris of the National Institute of Family and Life Advocates — Sotomayor referenced information she had obtained herself from the website of one of the unlicensed pro-life pregnancy centers, and asked several questions in regard to licensed versus unlicensed facilities providing what amounts to medical advice.
According to a transcript of the arguments (page 22), Sotomayor was followed by Kennedy, who began his line of questioning with a not-so-subtle criticism of Sotomayor for side-stepping the normal bounds of Court procedure.
Kennedy stated, “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, but I do have a hypothetical.”
French, who has a legal background, pointed out that court cases are fought over evidence that has been submitted ahead of time and placed into the record in such a manner that both sides have an equal opportunity to examine the same set of facts.
This is done so that unverified or misleading claims don’t end up deciding the outcome of a case.
“Simply put, judges should not act as free-lance investigators in the cases before them. In fact, this is judging 101,” French wrote.
Sotomayor nevertheless took it upon herself to do some “free-lance investigating,” thus going above and beyond the set of facts already put forward through arguments and evidence in lower courts by questioning an attorney with whom she no doubt disagreed ideologically.
Of course, The Associated Press was quick to rush to Sotomayor’s defense after she was rebuked by Kennedy.
The AP noted that there have been a handful of previous instances in other cases where justices or their clerks will have looked something up online to better inform their line of questioning, and even cited examples where Kennedy and Roberts had done so, as well as Breyer, Justice Sam Alito and the late Justice Antonin Scalia.
Yet, given the thousands of cases heard over the years by the Supreme Court that have strictly kept to the presented record, a mere five examples of a justice going outside the record in their questions or written opinions doesn’t give Sotomayor any excuse.
Kennedy was right to call out Sotomayor for stepping outside the record, and his rebuke should serve as a reminder going forward to all current and future justices.
They need to stick to the arguments and evidence before them, not whatever information they can pull up with a quick internet search.
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