What can US Supreme Court Justices consider in their decisions?

It’s in GQ, not GD, folks, so don’t be jerks.

The oral arguments over the Affordable Healthcare Act–and especially media reaction to those arguments–got me thinking. A lot of folks think that the solicitor general gave terrible arguments in defense of the government position. Is the SC constrained by those terrible arguments?

Let’s say, for example, that some blogger presents a case for the constitutionality of the ACA that’s much more persuasive and airtight than Mr. V’s case. Can Justice Kennedy (by law or tradition) consider that blogger’s arguments and decide, in effect, that Mr. V didn’t present a case for the constitionality of ACA, but Ms. Blogger absolutely did? Can Kennedy vote in favor of the ACA based on some random blogger’s argument?

Note the question about “by law or tradition.” I suspect that Kennedy can cast his vote based on anything at all, if he wants to; he can vote against it based on his loathing for Mr. V’s haircut if he wants. So part of the question is about whether SC justices by tradition confine themselves solely to the arguments presented during oral arguments, or whether they traditionally do a lot of their own research.

They can consider absolutely anything they want.

Since oral arguments are pretty brief, and most Supreme Court cases are very complicated, the oral arguments generally serve to develop an basic argumentative framework about what each side says.

However, everything in the oral arguments will have already been presented in much more depth in their written briefs, with copious citations of case law, academic treatises, similar precedents, congressional reports and testimony, appeals to the authority of the framers, and references to persuasive foreign precedents.

The Court is free to use any or all of these arguments presented to them, or to ignore them entirely and use its own resources and reasoning, or do both.

It is the job of the justice writing the opinion (and her clerks) to do their own research and justify the opinion within a logical framework of some sort. It’s fairly common for other justices who agree with the conclusion but disagree with the argument to write separate concurring opinions if they want. And of course the minority side will write a dissenting opinion citing their own sources and arguments.

At first your OP sounds like it is discussing an Amicus Brief (wiki link) - something submitted by neither plaintiff or defendant but offering a POV on the law(s) in question.

But Amicus briefs, to my very limited knowledge, are asked for by the plaintiffs, defendants, judge or all three parties over the course of a case.

Your example feels like it is asking “hey, if a Justice comes across a sound argument, regardless of source, can they factor it into their conclusions?”…

Based on what you said–and I hope I’m not getting too much into GD material here–is the emphasis placed on the quality of Verilli’s oral arguments totally misplaced?\

Edit: Wordman, your rephrasing is exactly what I’m asking. I’m not talking about an Amicus Brief.

They can cite any precedents or opinions they want, going all the way back to pre-1776 British Common Law if they want.

They do a lot of their own research, otherwise questions of national importance would be left up to the competence (or lack thereof) of the lawyers representing the parties. This is both by law (the SC is tasked with applying the relevant law to the case) and by tradition in the sense that the supreme judicial authority of a country must aim to make the correct decision irrespective of the lawyers involved so they tend to have more autonomy in their decisions than lower courts.

When a question gets to the Supreme Court, it’s because it’s quite an important point of law. In Canada (I imagine it’s the same in the US) it must be of national importance. Again, taking the Canadian supreme court as an example, I saw a figure that it takes about 80 cases a year. Since it has the same number of judges as the US SC, the US SC likely takes the same number of cases. If you make it among them, you’re important.

The SC will often consider policy reasons which is arguably a type of legislating from the bench.

If Kennedy became aware of the blogger’s argument, Kennedy & staff would do the research and cite that research rather than the blogger, unless it were an academic legal blog perhaps.

The Court can also ask for additional briefing on a particular issue. Additional argument, too, I suppose, but I think that’s quite rare.

It’s not totally misplaced; oral arguments are important. But they’re only, maybe, 10-15% important compared to everything else.

Interesting. Of course, they seem more important because that is what the media report.

Furthermore, (I think it’s) Kennedy frequently considers laws of other nations in making his decisions.

Woah, that I do NOT like.

They can consider anything they want, period. The constitution does not really constrain what they use to come to their decisions. Tradition says of course they must uphold the constitution itself, and it’s rare for them to just pull stuff out of thin air, but when you have essentially unlimited latitude you can pretty much argue the constitution says anything you want it to say.

If you ever read a SCOTUS opinion (and some of them genuinely are worth reading, non-lawyers can typically skim over the lengthy citations in them), some of them actually do talk about English common law dating back a thousand years or more.

Dork, when you are at Harvard, pay a visit to the law school law library.

Ask where the SC decision volumes are. Find the U.S. Reporter volumes, not the Lawyer’s editions (green bind I think for them). U.S. are a shade of off yellow.

The early 1789-90 decisions will be interesting reading. I think the 1st reporter of decisions was a man named CRANCH.

At that time, we can assume many questions presented were of 1st impression, meaning never decided before. What reference of law/citations did they rely on?

Well, he’s banned, but I’ll answer this anyway. It makes a difference how foreign law is used in a decision. While foreign law (with the exception of pre-revolutionary English common law, in what little room is left for it) cannot be precedent in U.S. law, it can be illuminating. When a novel question comes before the court, a survey of how other countries have handled the same issue, especially in their court decisions, can lead a justice to relevant arguments which they will either apply or dispose of in reaching a decision.