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The example I see getting kicked around a lot is how insanely bad Jackson's dissent in the Asian discrimination cases was. Her commentary about black babies and black doctors was just a complete hash, as if neither she nor her clerks have even a rudimentary grasp of statistics. Innumeracy is not a good look, especially when you pile it on top of her infamous failure to define "woman."
In fact Sotomayor's legal reasoning is noticeably weak, and Jackson makes her look bright by comparison. That this encompasses two-thirds of the Court's left wing can make this sound like a partisan dig, but in fact Kagan has no trouble holding her own (though I have seen speculation from both the right and the left that she has taken to "phoning it in" when she sides with someone they don't like). Judson Berger's "Weekend Jolt" from National Review last week had this to say:
So then it can seem like a race/HBD thing except of course that Thomas is black and seems to do fine. That may be substantially a matter of accumulated experience, at least in comparison with Jackson. But also, when it comes right down to it, he's no Scalia.
I do have an alternative explanation, but I'm not sure whether it's more charitable, or less. There is a tradition on the political left that leans in to the who/whom divide. As long as you're fighting the right bad guys (or in other words, attacking the right targets), truth is not only irrelevant, it might actually be something you should actively reject. Representative Cortez famously placed being "morally right" above being "factually correct", and was defended by the media on that. As a life-appointed justice, Jackson could very well be calling a deer a horse for all to see; what are we going to do, impeach her for it? By enshrining false claims about American racism into the canon of SCOTUS jurisprudence, she launders those claims into respectably citable assertions for generations of scholarly grifters.
So like, pick your poison? Jackson might just be so immersed in critical legal theory that she just looks like an idiot to people who think that intelligence is measured by one's grasp of empirical facts--when actually she's more Machiavellian, an "idiot" only to her enemies and a great manipulator of the levers of power for her friends. On this interpretation she is also a horrible justice who should never have been allowed anywhere near SCOTUS, but so long as she minds her Ps and Qs, she will never be removed and so the criticism is now moot. All anyone can do in response is vote Republican and pray.
On the other hand... she might just in fact be an idiot. Occam's Razor suggests that we should probably peer past the pomp and circumstance of pretending that the political appointment process is in any way meritocratic, and just call a spade a spade. And if this is that case, why, she should never have been allowed anywhere near SCOTUS, but so long as she minds her Ps and Qs, she will never be removed and so the criticism is now moot... ah. Looks like elections have consequences, and appointing justices explicitly for the color of their skin and the shape of their genitals does, too. And once that's done, there's surprisingly little anyone can do to fix it.
This is a very poor bar to use when evaluating the writing abilities of justices. Scalia was without a doubt the best writer on the Supreme Court in my lifetime, and one could easily argue he was one of the best ever. His opinions have no trouble standing up to the likes of Cardozo or Holmes, and even the people who loathed Scalia and everything he stood for admit that he was an intellectual giant. He was a writer the likes of which comes far less than the proverbial once in a generation, and the Court is immeasurably lessened by his death.
Well, I was more interested in kind of "situating" the justices, it was not my intent to be deliberately unflattering or anything.
But I do wonder whether it's actually a "poor bar." Scalia was an exceptionally capable jurist, but he does have peers in the profession--and even peers outside the profession who would likely make excellent justices. The problem is that the political nature of the appointment now often prevents such people from being appointed. In particular, Robert Bork was a much better choice than Anthony Kennedy, for example, and given Kennedy's penchant, especially in his later years, for flights of poetic fancy instead of hard-boiled legal reasoning, America would very likely be a better place today had Bork joined the court.
That said, though, while I do think it's still a little early to declare that either Gorsuch or Barrett are on Scalia's level, they are at least plausibly in the neighborhood. So it's not impossible to get good jurists on the court. But in the case of Jackson, President Biden didn't even try. He wasn't looking for a great jurist or even an obviously competent one. He made a purely political, explicitly affirmative-action pick, with totally predictable results.
That's a fair analysis. KBJ is certainly the weakest justice in terms of quality of writing and scholarship on the court right now, though purely out of the interest of charity I'd like to think that with time she'll at least get to the level of say, Alito. Not the greatest writer ever by any means, but competent. Of course "competent" by the standards of the Supreme Court is still head-and-shoulders above "competent" by the standards of the rest of the judiciary, so we'll see.
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That "commentary" amounted to one sentence: "For high-risk Black newborns, having a Black physician more than doubles the likelihood that the baby will live, and not die." See page 23 of her dissent. The citation is to a brief filed by the American Association of Medical Colleges, which says exactly that, at page 4: "And for high-risk Black newborns, having a Black physician is tantamount to a miracle drug: it more than doubles the likelihood that the baby will live."
Justices uncritically citing statements in briefs is all too common, but it is not a phenomenon that is unique to any particular justice, nor to justices of any particular political persuasion. See this law review article from 2014, which says in part:
Irrelevant. The question is not whether, or how often, justices uncritically cite statements from amici. The question is whether the statements they write, cited or no, are so obviously stupid that someone at the level of Supreme Court Justice should be smart enough to at least suspect them, and thus perhaps examine them more closely. To be either so stupid or so partisan as to fall prey to "too good to check" is a serious flaw in a jurist. Justice Jackson really does seem to just be kind of stupid, but as I note above--it's possible she's just very good at being dishonest. Given the evidence before me, I don't see any other plausible alternatives.
It is indeed relevant, because you seem to be claiming that Jackson is more stupid or more partisan than is the norm, but the evidence you cite does not distinguish her from the norm. Hence, it seems to be an isolated demand for rigor.
It does, in precisely the way I claimed. Not in the way you took it, which was wrong, which I have explained; sorry I can't explain it better, but I'm not sure it matters because I can't actually tell whether you have failed to understand, or are only pretending not to understand.
I hope no one reading this thread overlooks the parallels between your error and Jackson's, and the particular way you both approach your respective errors.
Are you aware that the source you cite misstates the statement made in the opinion and brief? Your source says: ""A moment’s thought should be enough to realize that this claim is wildly implausible. Imagine if 40% of black newborns died—thousands of dead infants every week. But even so, that’s a 60% survival rate, which is mathematically impossible to double. And the actual survival rate is over 99%."
But, the opinion and brief do not refer to all newborns. It refers to high-risk Black newborns. And, unless we know what "high risk" means, we can't actually know whether the claim is statistically impossible, can we?
Regardless, you have no data on how often justices uncritically cite factual claims, including stupid ones, so you have no basis for your claim other than your own preconceptions.
To be honest doesn’t she have clerks to proofread her work? Which would mean either her whole team missed this citation or she purposefully chose more inflammatory language and didn’t care if it was factually wrong.
Again, the citation was correct. The citation is to the amicus brief, and the amicus brief says exactly what the opinion says it does, so the citation is accurate. Whether they should have double checked the original source cited by the brief, I would say yes, but of course perhaps the original source sats that as well. And, I am entirely sure that it was the clerks who came up with the examples in the first place. She almost certainly wrote a draft and asked them to find examples to cite. That is basically what their job entails. (Sometimes, clerks write the entire first draft)
As for the claim that it is facially absurd, leaving aside that we don’t know that, since it refers to "high risk" newborns, and we don’t know what that means, the opinion was joined by two other justices, including Kagan. Which means that they, and their clerks, read it. Are they stupid, too?
Personally I think you are being obtuse. Anyone working in “elite” level occupations should notice that level of mathematical absurdity. It’s a freshman level mistake at a teachers college.
You are asking “high risks” to do a lot of unreasonable work. And I can’t even think of a sample population it could be of. Like failed abortion survival rate?
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The basis for my claim is decades of reading SCOTUS opinions and listening to oral arguments. I gave just one specific example in answer to @cake's question. You responded with an irrelevant take on how often people cite amici. Jackson's opinion paints a false picture, reminiscent of common leftist confusion about how many unarmed black men are killed by police each year. Your white-knighting that does not improve Jackson's intelligence or her arguments.
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One could argue that this has extended to other domains, with exhibit 1 being Kamala Harris. Like she must be pretending to be dumb right? I need to find a video of her in court at some point, there is no way the California attorney general was this incompetent.
Kamala Harris is a skilled politician, which requires a decent amount of intelligence and willingness to deal with unpleasant drudgeries. She's good at politics not in a "how do I get people to like and vote for me" but in a "how can I exert maximal leverage with my current assets to achieve my ends." Public display of intellectual rigor is either not helpful or actively harmful in doing this (relative to her other strengths), so you don't see that kind of display from her.
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Yeah, without knowing these people personally it really is impossible for me to say with confidence. I've interacted with some pretty high profile people over the last few decades, and in my experience the "upper echelons" of American life include a surprising number of obviously-not-that-bright people, even though very-obviously-bright people are over-represented in their ranks. Really plainly stupid people are rare among millionaires and billionaires and successful politicans and lawyers and academics and so on... but listening to partners from multi-million dollar law firms fumble soft-ball questions from sympathetic appellate justices is always a sobering experience. To say nothing of reading arguments from SCOTUS justices who apparently can't even do high school math! It really goes to show that if you do something for long enough, and happen to be in the right place at the right time, eventually people will assume you must have some merit--and then they will give you more "merit."
Basically this SMBC comic but extended beyond graduation speakers, to all paid speakers, to all lawyers and politicians and academics and the whole damn PMC, I guess. It seems fruitless to complain about it because it appears to just be human nature, and so presumably adaptive in some way.
But there does seem to be a genuine asymmetry where right-wing jurists are still trying to, at minimum, pay some lip service to reason and principle and the actual empirical facts that underlie our successful intergenerational institutions... while left-wing jurists embrace "winning is the only thing that matters" via the postmodernist deconstruction of those institutions. Whether they're doing so deliberately, or inadvertently as a result of uncritically absorbing their political milieu, in the end scarcely matters. This has always been my objection to the political left, even though I am often more aligned with the vision of the left than the right. If I can only make sense of your jurisprudence by assuming that you are either stupid or dishonest, then it makes very little practical difference which of those things you are.
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It seems like on a body that is representative on the level of 9/300,000,000, you can find genuinely talented blacks out of the slightly over ten percent of that population with the right skin color. So Thomas doesn't surprise me. What surprises me is that recent dem appointments aren't even intended to be genuinely smart legal minds- RBG, as much as I disagreed with her, was clearly capable of good legal reasoning. So was Breyer, and is Kagan. Sotomayor and KJB are not, but the DNC doesn't and didn't care- they rule the way the DNC wants them to, who's going to point out that their reasoning for doing so is sophomoric nonsense.
I strongly suspect that this has to do with differences in attitude between the two parties- democrat's judges are intended, first and foremost, to rule in accordance with the party that nominated them, and dumb partisan hacks are the easiest route there. On the other hand for republicans the constitution is an actual document that has actual words in it, and it's important to nominate someone who has a consistent reading of those actual literal words with actual meanings. These people sometimes ruling against you is a cost of doing business because those are actual literal words that actually have meanings and you are of course not the expert on those words or their meanings.
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