Citing New Evidence After “The case is submitted.”

June 25th, 2013

At the conclusion of every oral argument, the Chief Justice says, “The case is submitted.” One would think that means that efforts to argue the case are over, and, the record is sealed.

As we saw in the runup to NFIB v. Sebelius, there were massive efforts to influence the Court after arguments concluded. But, at the least, we could hope that the record was sealed, and no new evidence was introduced. Well, not really.

Eagle-eyed lawprof Derek Muller noticed that in NFIB, and in Shelby County, Justice Ginsburg relied on sources published *after* argument date:

In her dissent in Shelby County v. Holder, Justice Ginsburg cites a piece about racial polarization that appeared in the Harvard Law Review Forum (p. 21).

I couldn’t help but notice that the article was published after  the oral argument inShelby County: a draft was released the week of oral argument (which took place February 27, 2013), and the final product published at the Harvard Law Review Forum April 27, 2013.

I then recalled that Justice Ginsburg cited post-oral argument work in National Federation of Independent Business v. Sebelius , last term.  There, argument took place March 27 & 28, 2012. But she cites a blog post by Ezra Klein published May 7, 2012 (p. 7).

I also noticed that Justice Thomas in Fisher cited a June 21 CNN article!

Today, the segregationists’ arguments would never be given serious consideration. But see M. Plocienniczak, Pennsylvania School Experiments with ‘Segregation,’ CNN (Jan. 27, 2011), /pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court’s case file). We should be equally hostile to the University’s repackaged version of the same arguments in support of its favored form of racial discrimination.

Update: I read this too quickly. The article is from 2011, last visited 2013. My mistake.

Judicial factfinding is difficult enough, as the parties are unable to rebut these facts not subject to the adversarial process, but relying on facts that weren’t even in existence at the time of arguments is even more troubling. Here, offering a counter narrative is impossible.