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Culture War Roundup for the week of July 10, 2023

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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:

Importantly, Roberts retains an ability to influence the conservative wing of the Court sheerly through his position as chief justice. (As such, he may assign controversial opinions to himself if he joins the majority.) But one other thing that deserves emphasis . . . is how intellectually outgunned the Court’s liberal wing is relative to the conservative side. It’s not merely a matter of numbers so much as a stark matter of judicial ability and temperament. Elena Kagan is a genuinely brilliant liberal justice with the ability to persuade those in the conservative majority as to the soundness of her views, but she has of late seemingly been phoning it in. Meanwhile Sonia Sotomayor is (to put it generously) notoriously lacking in the “intellectual outreach” department, and Ketanji Brown Jackson, though she may develop on the bench, is at this early date depressingly outmatched rhetorically and argumentatively even by Sotomayor.

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.

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.

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:

My research shows that 1 in every 5 citations to amicus briefs by the Justices in the last 5 years was used to support a factual claim-something I define as a theoretically falsifiable observation about the world. . . . And more than two-thirds of the time, the Justice citing the amicus brief for a fact cites only the amicus brief as authority-not any accompanying study or journal citation from within the brief.

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.

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.

the evidence you cite does not distinguish her from the norm

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?

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