From her interview on SCOTUSBlog about her new book on the Supreme Court, in response to a question about Kennedy v. Louisiana, and the Court flubbing facts:
I understand why it’s problematic for Justices to go outside the record and do their own research, but actually it doesn’t really bother me. Why should the Court’s ability to reach a fully informed decision be compromised by a failure of advocacy, such as occurred to everyone’s embarrassment in Kennedy v. Louisiana in 2008 – that was the Eighth Amendment case about the death penalty for the rape of a child, and no one told the Court that Congress had recently added child rape to the list of capital offenses in the military justice system. It seems to me that as long as Justices cite their sources and aren’t just flying on instinct, that’s OK and sometimes better than the alternative.
I would wager that most of the time the Court goes outside the record, it is not due to “failure of advocacy.” I would call it “clerk curiosity,” perhaps.
In class this week, we reviewed an appellate decision involving whether, under the doctrine of detrimental reliance, a seller who backed out of a contract after the buyer sold his house, should be compelled, through specific performance, to sell the home. The appellate decision took place two years after the initial disputed sale. The court of appeals explained that it was unclear from the record if the buyer had actually moved out of his house. If he had, detrimental reliance would compel specific performance. If he did not, restitution would be an appropriate record.
I paused to explain to the class that appellate courts are bound by the trial record. Even if an attorney for the buyer told the judges, “Your Honor, my client moved out of the house a few weeks ago,” that would not count.
The appellate court properly remanded the case to the trial court to determine what was going on. There was no “failure of advocacy” here.
For more on my thoughts about the Court looking to facts outside the record, see here, here, here, here.