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May 27, 2010

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Comments

ohwilleke

Directly gathering information for policy purposes, as opposed to the facts of the case before a court, is not itself improper or unusual. Indeed, it is relatively common place in U.S. Supreme Court opinions and the concurrence by the Chief Justice in the case does the same thing (citing newspaper articles).

But, the federal rules regarding judicial notice, which include notice to the parties of the matters to be noticed, should have been followed, and comity would certainly call for a request to the solicitor-general who is the designated liason with the executive branch, rather than a direct inquiry. Notice to interested and involved parties often prevents inaccuracies in court rulings.

Shiela

I agree with the comments of all who believe the Supreme Court was out of line.
If the SG was asleep at the switch here, it wasn't the first time.

I recall a brief that was filed opposing a cert petition last year, that included a highly questionable (translation: incorrect) legal argument. The argument cannot be squared with the plain language of the relevant statute or the separation of powers doctrine. It had been drafted and submitted to the OSG by an interested federal agency. Clearly, no one bothered to check into its legal sufficiency before parroting it in the brief filed with the Court.

Josh Blackman

Do you think there is anything odd about the Court, ex parte, doing research without asking any of the parties to brief it?
Certainly if the Court wanted BOP statistics, they could have asked the SG to brief it. Rather, they obtained data that no one else had access to–and in this case, it seems that data was flawed.
And, I wonder what other mistakes SCOTUS makes, that are never noticed.
http://joshblackman.com/blog/?p=4563

Bill Thompson

This incident fully illustrates why courts should never do independent factual determinations. As a matter of due process, the parties always should have the opportunity to explain to a court what facts are pertinent to the inquiry and to question the accuracy or context of any requested facts. Moreover, the parties will be in a better position to know to whom the request should be directed.

The request from the court appears to authorize a response that violates the canons of ethics promulgated by the American Bar Association and adopted in many states. It is an ex parte or other communication made to the court outside the presence of the parties concerning a pending or impending proceeding.

If the court wanted additional information, it should have directed the parties to provide it - not do an independent search. Just because you can do something does not mean you should.

Jim3k

Has the Court improperly engaged in an ex parte communication with an interested party? I realize that Florida is the main party, but the USBoP is closely enough connected to this constitutional issue where it may have been ethically inappropriate for the Court to communicate with it without the parties' knowledge. Certainly a Court request such as this should be part of the public record of the case.

And why did the Court leave the Solicitor General out of it? Even if the SG has not filed in the matter, wouldn't it have behooved the Court to have asked the SG to acquire the information since that office has access to all executive agencies? At the very least, the Court could have assured itself of SG oversight for accuracy.

Now the Court and the SG have been diminished to some extent.

Somehow it just seems wrong for the Court to seek extra-record evidence on its own. This is not Brandeis stuff where the Court could look up stuff; besides those references were in some party's brief and known to all the other parties. (IMO, observing that this is all tangential to the Florida case does not address the problem.)

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