The Supreme Court Needs Experts

During the oral argument in the Wisconsin gerrymandering case, the conservatives on the Supreme Court made clear that they have no interest in or ability to understand social science data. But a new report from Pro Publica finds that they often misapply or misunderstand such data when they do consider it.

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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.

Part of this goes back to a core problem of conservative constitutional theory. The various forms of conservative originalism and textualism are all ideas found within what is known as legal formalism, which maintains that the proper way to decide cases involving constitutional law is essentially a mechanical one — all you need is the right set of starting principles and you just plug the facts of the case into it and the proper legal conclusion should pop out the other end. This is in contrast to legal realism, which dismisses this as both impossible and absurd because the act of judging should not be divorced from real world circumstances or outcomes.

This is why conservative legal scholars and judges are so reluctant to even consider data or theory from experts on the subjects that the cases they are adjudicating are actually about. And as this new report suggests, when they do consider such things they often get it wrong. So who fact-checks the Supreme Court? No one, or at least no one in any position to do anything about it or to help them avoid basing their decisions on misunderstandings and false claims before a ruling is issued.

The New York Times suggests two possible remedies. The first is to establish something akin to the Congressional Research Service for the federal courts, which would allow judges to request an analysis from experts while they’re considering a case in which that analysis would be relevant. The second is to establish a panel of technical advisers for the courts to do much the same thing. Both seem like excellent ideas to me. In an era when court rulings can have a massive effect on virtually every facet of our lives, we should at least make sure that those making the decisions have access to — and utilize, when appropriate — serious expert analysis of the data.

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