Justices Use Internet "Extrinsic Evidence" in Big Cases

Two of the Supreme Court's recent major decisions provide vivid examples of my prior blog post about judges (and Supreme Court justices in particular) using "extrinsic evidence" -- materials other than what the lawyers present to them in briefs, trial, or argument -- to make judicial rulings.

As pointed out by the Washington Post, in the Supreme Court's recent ruling mostly striking down Arizona's immigration enforcement law, Justice Antonin Scalia's dissent criticized the Obama administration's recent announcement that it would defer deportations of young people under age 30 who immigrated to the U.S. illegally when they were under the age of 16, are in or have graduated from school or have served in the armed forces, and meet other criteria.

This announcement was made ten days before the decision was released, and eight weeks after the case was argued. 

So Justice Scalia did not get this information from the lawyers, or the briefs; he obviously got it from the news. And in discussing this, he cites a New York Times article on the administration's announcement, Arizona v. United States, No. 11–182 (June 25, 2012) (Scalia, J., dissenting), at 20, a memorandum from Homeland Security Secretary Janet Napolitano, id., and the President's remarks on the policy. Id. at 21. For the latter two, the dissent cites the websites where these materials are available.

Meanwhile -- as pointed out by Politico -- Justice Ginsberg's opinion in the case upholding President Obama's health care law cites a Washington Post story from two months after the case was argued, National Federation of Independent Business v. Sebelius, No. 11–393 (June 28, 2012) (Ginsberg, J., concurring in part and dissenting in part), at 7, as well as several government statistics found online.

So, here's some fresh evidence that Supreme Court justices -- or, at least, justices Ginsburg and Scalia (or their clerks) -- consult and use the Internet to fashion decisions. Leading to the question, why can judges do that when jurors cannot?