Is the Supreme Court bound by the record?
Justice Scalia does not think so. Elsewhere I have blogged about the Court’s tendencies to look outside the record from the lower court to find facts that impact the reasoning and decision. Justice Scalia does not seem so bound, as he defended his opinion in Arizona v. United States that relied extensively on the President’s then-recent decision not to enforce large swaths of the immigration law with respect to deportation.
SCALIA: There were innumerable cases in which we cite newspaper articles; innumerable articles. There’s no rule that you cannot cite any public materials in opinions and only cite the record. I mean, if it’s a factual matter that is up for decision, of course, you can only use the matter set forth in the record to determine the facts.
But that’s not the purpose for which I used it at all. And, we use public records all the time. The point I was making there had nothing to do with a factual determination. I don’t want to – people should read the opinion to see whether my use of that so-called non-record material was – was proper or not.
“If they weren’t in the record, I don’t want to hear about them. You appreciate that rule, that we don’t consider things that aren’t in the record.”