Judiciary in India can take a valuable lesson from an incidence in US Supreme Court. It would avoid our judges throwing their opinions with no constraint whatsoever every now and then. And media makes the life more messy when some judges desire publicity.
Legal journalists and bloggers had a busy day recently when US Supreme Court Justice Anthony Kennedy remark on fellow justice sharing the bench, Justice Sotomayor during a court proceeding. The case was about State of California law being challenged by a group of “crisis pregnancy centers”.
California State law requires that a clinic must display if it is run by a certified doctor or by a nurse or other supporting helps. The issue on hand was that luring a woman inside a clinic by pretending something –that they are doctors and in reality they are not.
Justice Sotomayor commented on appellant “National Institute of Family and Life Advocates”. Advising the appellant Justice Sotomayor said that she looked at a few clinics’ websites. She said one site showed “a woman on the home page and with a woman in a uniform that looked like a nurse’s uniform in front of an ultrasound machine”, in what looked like a doctor’s examination room.
Justice Sotomayor said she might have just been fooled into believing into thinking that she was about to see a doctor. In truth, clinic was run without a certified doctor. The justice and the Appellant Attorney Michael Farris argued on issue. Slightly later Justice Anthony Kennedy jumped into the debate, helping the attorney against his co-chair Justice Sotomayor. He said, “well in this case, I did not go beyond the record to look on internet because I do not think we should do that.”.
Justice Kennedy’s statement was a bombshell on the internet, all over the world. Associated Press headline was “Sotamayor rapped for surfing web”. Washington Post headline was “Justice should not conduct independent Research”.
The media world over was with Justice Kennedy implying that judges are human and tend to have their own thoughts, biases, likings and attitudes. But they must restrain their intuitions and stick with what is on record and it came from trial court. Defense has no opportunity to counter the judges intuition, like he would in a fact.
Fact is argued with both sides present to measure truth presented by both sides.
Judge Posner wrote a book long time ago, “We accept that judges are human. But they are humans trained and expected to operate within professional constraints and norms. “
So what are we to think about judges who reach outside the record to do their own research?
Experts agree with Justice Posner’s advise .
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