Why It's A Big Problem When A Supreme Court Justice Uses Google

Associated PressSupreme Court Justices Stephen Breyer, left, and Antonin Scalia testify on Capitol Hill in Washington, Wednesday, Oct. 5, 2011, before the Senate Judiciary Committee hearing; "Considering the Role of Judges Under the Constitution of the United States.

I have blogged repeatedly over the years about my frustration at the Justices going outside the record, and using the Internet to conduct independent research.

The reason there is a record, and a joint appendix, is so everyone is playing on a level playing field, and both sides are able to dispute any factual issues.

But not Justice Breyer. During oral argument in United States v. Apel, Justice Breyer found the record "not developed" enough so he Googled it.

I doubt this issue will be dispositive, but if it is, the fact that the Justice is independently finding facts is wrong. Plus, why Google? Why not Bing? Or official government maps? Sometimes maps and photographs are misleading. That is why trial lawyers spend time authenticating them. No such luck for the Supreme Court.

Justice Breyer did give a drive-by of the land at issue:

Recall that in McCutcheon Justice Breyer got info from "the Internet."

This really should stop. Stick to the record.

Josh Blackman is the author of "Unprecedented: The Constitutional Challenge To Obamacare," which can be purchased here.