Thursday, October 19, 2017

Fact Checking SCOTUS

It's a Fact: Supreme Court Errors Easy To Find:

The decisions of the Supreme Court are rich with argument, history, some flashes of fine writing, and, of course, legal judgments of great import for all Americans.
They are also supposed to be entirely accurate.
But a ProPublica review of several dozen cases from recent years uncovered a number of false or wholly unsupported factual claims.
The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states. In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.
In all, ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.
I've been bitching for years about the inaccuracies in some opinions. Ever since "the efficacy of social scientific research" was proffered in Trop v. Dulles (1958) almost 60 years ago, the court routinely "weighs" the scientific evidence without determining the validity of said evidence
Sometimes justices seem almost amused by that lack. When presented with potentially critical empirical evidence in a major gerrymandering case this month, Chief Justice Roberts joked that “it may be simply my educational background” before describing the material as “sociological gobbledygook.”
The president of the American Sociological Association offered to have a team of sociologists sit down with Chief Justice Roberts after his “gobbledygook” comment.
I remember reading that and thinking the same thing: I'd be more than happy to email you, Chief, and help simplify the "gobbledygook" for you, just hit me up.

In fact, that would be the easiest solution (and once rejected decades ago): hire a team of researchers and analysts analogous to the Congressional Research Office or Congressional Budget Office.
In the 1980s, the legal expert Kenneth Culp Davis proposed that the court create an outside research organization, akin to the Congressional Research Service, to do research on its behalf. However worthwhile, the idea went nowhere.
Perhaps a more viable idea is one that Mr. Davis rejected: establish a group of technical advisers to the court. A small team of social scientists and statisticians could help justices sift through empirical evidence. There is no shortage of scholars with Ph.D.s who would be eager to do that work for the court.
The court could take steps today, without any institutional change, by hiring clerks with empirical training instead of only recently minted J.D.s. Or if there is an immediate and specific need that the current clerks can’t address, justices could have the ability to hire experts to assist them with specific issues.
Most of the errors found in the ProPublica piece aren't earth-shattering or reasons to reverse, necessarily. But we talked about this one the other day in class, on the topic of sex offenders:
In a 2002 opinion, Kennedy wrote that untreated sex offenders commit new sex crimes at a startling rate, “estimated to be as high as 80 percent.” The statistic came from a magazine article, which did not provide a source. The article’s author has admitted to legal scholars the number was a guess. Studies of sex offenders indicate the true rate is a small fraction of the one Kennedy used.
The source of Kennedy's "80% of sex offenders will recidivate" was non-peer reviewed article in Psychology Today, which is a great magazine to thumb through when you're standing in line at the grocery store, but it's right next to The National Enquirer (literally and figuratively) in terms of scientific validity.

Yet his opinion, and that statistic in particular, was then cited over and over to justify the expanding use of civil commitment of sex offenders...a statistic which had no basis in reality (the actual recidivism rate for sex offenders and child molesters is about 5%).

Facts matter, and Roberts could go a long way towards improving the heft of the court's rulings if we could be more confident the data being used to justify their opinions was, in fact, valid.

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