One of the first things that law students learn when preparing for litigation, including appellate litigation, is to avoid use of “facts not in evidence.” There are two principle reasons for doing so. First, the whole purpose of litigation is to present a body of “facts” to which the relevant law is then applied. You can have competing facts such as a witness testifying that the time of day was 12:00 noon and another witness testifying that the time of day was 4:00 PM. In such instances the trier of fact (most often the jury but also a judge in non-jury litigation) then decides which is to be believed. The important thing is that the “facts” have been presented and the litigants have had the ability to dispute, confirm, or contradict those “facts” as well as the veracity of the person(s) attesting to those “facts.” All of that is now contained in the record – the official transcription of all that occurs during litigation – it is now the body of facts upon which relevant law is applied.
Second, utilizing “facts” from outside the proceedings introduces an element of surprise for which litigants are unprepared – particularly if that “fact” is introduced after the close of the factual proceedings and during the pendency of deliberations. For instance during jury deliberations one of the jurors states that (s)he knows that the second witness (above) doesn’t know how to tell time and, therefore, his statement about the time being 4:00 pm cannot possibly be true. Or even worse when the judge decides that the record is insufficient to sustain his desired application of the law. Such interjections are grounds for overturning a verdict – civil or criminal. This misconduct is most often found in state administrative proceedings when hearings officers decide that the agency advocates did a poor job of presentation and left out “pertinent facts” which would be necessary for the hearings officer to come to a predetermined conclusion – the hearings officer then inserts them and proceeds to the desired outcome.
The rules about “facts not in evidence” are taught in nearly every law school in America. However, it appears that Yale Law School where Associate Justice Sonia Sotomayor earned her law degree refrained from teaching it, or maybe Yale refrained from teaching it in 1978-79 when Ms. Sotomayor was in attendance, or maybe Ms. Sotomayor was absent during the week that it was discussed, or maybe – and this is probably the closest to the truth – Ms. Sotomayor decided emotion was more important than the law, or that the law as applied would not correspond to liberal/progressive orthodoxy.
Whatever the reason, Ms. Sotomayor violated one of the cardinal rules in litigation – she sought to inject “facts” that appeared nowhere in the record during oral arguments before the United State Supreme Court last week relating to the validity of the vaccine mandates issued by President Joe Biden. The Washington Post in a January 8 article noted:
“Those numbers show that omicron is as deadly and causes as much serious disease in the unvaccinated as delta did. … We have over 100,000 children, which we’ve never had before, in serious condition and many on ventilators.”
— Justice Sonia Sotomayor, – during oral argument at the Supreme Court, – Jan. 7
“Several readers questioned these remarks by Sotomayor, made during a hearing on whether the Biden administration’s nationwide rules ordering a vaccination-or-testing requirement on large employers were constitutional. Her remarks came during an exchange with Ben Flowers, Ohio’s solicitor general, as he referred to a brief filed by the American Commitment Foundation, which argued that the rise of the omicron variant had made the vaccine rules less relevant because vaccines do not appear especially effective against it.”
While there was statistical data in the transcript none of it came even close to Ms. Sotomayor’s assertion. Ms. Sotomayor, who has recently given over to using the talking points from the Biden administration during the course of oral arguments, didn’t like the data provided. It didn’t match the speculation of liberals/progressives. The data in the record did not create an aura of impending doom – of a crisis so perilous that we must ignore the constitution regarding the limitations of power of the Executive Branch. So Ms. Sotomayor provided her own versions of “facts not in evidence.”
The greatest reason that those “facts” were not in evidence is because they are not true. There is no basis for them. There are no studies. There is not data. There are no witnesses. There are no expert opinions. There is nothing other than the shrillness of another liberal/progressive harridan angry about Americans standing up for their rights. Angry that the liberal/progressives are in a distinct minority on the court and thus they have lost their primary tool for forcing their agenda on the American public when they cannot muster the votes in Congress as required by the Constitution.
Ms. Sotomayor had a route out of the mess she created – out of the consideration of facts not in evidence, out of her intemperate remarks. She could have and should have recused herself from further consideration. But she didn’t. She participated in the final decision, she voted against the final decisions, and she registered her disagreement in a minority opinion. And it isn’t the first time that she has let her progressive politics intervene openly. She did it repeatedly during the oral arguments challenging Roe v. Wade argued this past November. Yahoo News quoted Ms. Sotomayor as follows:
“Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible. It’s what Casey talked about when it talked about watershed decisions. Some of them, Brown versus Board of Education it mentioned, and this one have such an entrenched set of expectations in our society that this is what the court decided, this is what we will follow, that we won’t be able to survive if people believe that everything, including New York versus Sullivan– I could name any other set of rights, including the Second Amendment, by the way– there are many political people who believe the court erred in seeing this as a personal right, as opposed to a militia right. If people actually believe that it’s all political, how will we survive? How will the court survive?”
For some reason, Ms. Sotomayor believes that stopping taxpayer funded abortions on demand will create a stench. Most would agree that the killing of over 63 million unborn babies actually creates the stench. Apparently Ms. Sotomayor does not believe the nearly two hundred years of states banning abortion did not create an “entrenched set of expectations in our society” but that Roe v. Wade decided slightly under 50 years ago did create such an “entrenched set of expectations in our society. And apparently overturning state law without legislative approval did NOT challenge whether the country can survive while overturning Roe v. Wade and returning policy consideration to the states would means that the country “won’t be able to survive” Like most liberal/progressive politicians Ms. Sotomayor chooses her arguments based on political expediency rather than regular application. Ms. Sotomayor’s support for taxpayer funded abortion on demand is based on politics and not on the law. The Supreme Court made up the application of a “right to privacy” as justification for banning any limitations on abortion and overturning nearly two centuries of precedents in the states. To suggest that returning jurisdiction over abortion to the states will somehow spell the end of justice or more importantly the rule of law is absurd on its face.
But there is irony in all of this. Even though I believe Ms. Sotomayor should be removed from the Supreme Court for failing to demonstrate judicial temperament and/or following the fundamental requirements for due process and fair trials, neither of those would be deemed to constitute a “high crime or misdemeanor” in Article II, Section 4 relating to impeachment:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
However, Article III of the Constitution relating to the creation of the Supreme Courts states as follows:
“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.” (Emphasis added)
While the procedure requires a simple majority in the House of Representatives to vote for Articles of Impeachment, conviction and removal requires a two-thirds vote from the Senate – a highly unlikely event. A good case can be made that Ms. Sotomayor has gone well beyond “good behavior.” It is time for her to leave the Supreme Court and participate elsewhere in the political debate.