Talk About Citing Facts Outside The Record! Justice Breyer Cites Unpublished Book in McCutcheon Dissent

April 19th, 2014

It has long been a pet peeve of mine when appellate judges cite sources outside the record, and in particular cite sources that came to light following oral arguments. There is no way the advocates can be aware of these sources, and perhaps rebut them. Justice Breyer just one-upped this. In his McCutcheon dissent, he cited Robert Post’s forthcoming book, that will be officially published in June.

That is also why the Court has used the phrase “subversion of the political process” to describe circumstances in which “[e]lected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S., at 497, 105 S.Ct. 1459. See also Federal Election Comm’n v. National Right to Work Comm., 459 U.S. 197, 208, 103 S.Ct. 552, 74 L.Ed.2d 364 (1982) (the Government’s interests in preventing corruption “directly implicate the integrity of our electoral process” (internal quotation marks and citation omitted)). See generally R. Post, Citizens Divided: Campaign Finance Reform and the Constitution 7–16, 80–94 (forthcoming 2014) (arguing that the efficacy of American democracy depends on “electoral integrity” and the responsiveness of public officials to public opinion).

No one, other than those with access to the author or publisher, could see it.

Derek Muller was the first to notice.

Yeah, wouldn’t it be nice. Rick Hasen adds some comments:

Have there been any other occasions where Justices have cited scholarship not available in the public record?  Justice Scalia cited a forthcoming piece posted on SSRN in Heller (“And if one looks beyond legal sources, “bear arms” was frequently used in nonmilitary contexts. See Cramer & Olson, What Did “Bear Arms” Mean in the Second Amendment?, 6 Georgetown J.L. & Pub. Pol’y (forthcoming Sept. 2008), online at http://papers. (as visited June 24, 2008, and available in Clerk of Court’s case file) (identifying numerous nonmilitary uses of “bear arms” from the founding period).”). Justice Kennedy did in Boumediene (“. Thus the writ, while it would become part of the foundation of liberty for the King’s subjects, was in its earliest use a mechanism for securing compliance with the King’s laws. See Halliday & White, The **2245Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L.Rev. 575, 585 (2008) (hereinafter Halliday & White) (manuscript, at 11, online at 3 /papers.cfm?abstract_id =1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)”.)

But Justice Breyer cited to something which is not available on SSRN nor is there any notation that a copy is in the Clerk of Court’s file.

Bad form from Justice Breyer.

As an aside, Post’s book addresses some of the themes I’ve been thinking about with Collective Liberty. I’ll be sure to read it when it comes out.

Post interprets constitutional conflict over campaign finance reform as an argument between those who believe self-government requires democratic participation in the formation of public opinion and those who believe that self-government requires a functioning system of representation. The former emphasize the value of free speech, while the latter emphasize the integrity of the electoral process. Each position has deep roots in American constitutional history. Post argues that both positions aim to nurture self-government, which in contemporary life can flourish only if elections are structured to create public confidence that elected officials are attentive to public opinion. Post spells out the many implications of this simple but profound insight. Critiquing the First Amendment reasoning of the Court in Citizens United, he also shows that the Court did not clearly grasp the constitutional dimensions of corporate speech.

Update: Two of Breyer’s clerks this year–Thomas P. Schmidt (Garland) and Sara A. Solow (Baylson, E.D.Pa) graduated from Yale Law School.