Exhibit A from McCutcheon why it is a bad idea to allow the Justices to Google around and search the web for stuff no one else knows about.
JUSTICE BREYER: There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more. We’re telling them: You can’t; you can’t support your beliefs. That is a First Amendment negative.
Far be it for anyone to question who these two hundred people from the internet are.
See generally here.
Update: Zephyr Teachout comments on the Justices looking outside the record:
But the mismatch between the record in the case and the Justices desires to understand revealed itself throughout the argument.
Breyer was clearly looking outside the record, as he found it lacking–both calling back to the summer he spent reading the lengthy record in McConnell, and mentioning that he was doing some online browsing:
Breyer: “There are apparently, from the Internet, 200 people in the United States who would like to give $117,000 or more.”
Breyer: “Turn on your television set or internet. Because we found instances, without naming names, where it certainly is a reality.”
Alito called Kagan’s theories “wild hypotheticals,” as others have noted; anyone involved in politics would find them less wild. But he also rightly noted the lack of empirical support.
This is both a problem with the way this case came to the court–the government should have developed a record–and a problem with political law cases more broadly. The scope of the record is potentially all of lived political life.