@naraburns comments on "Culture War Roundup for the week of July 10, 2023

Culture War Roundup for the week of July 10, 2023

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naraburns nihil supernum 2yr ago · Edited 2yr ago

Some quick googling shows that it's not an issue limited to the liberal justices (also here and here), so it seems unfair to single out Jackson.

You are the one who asked about Jackson, specifically. If you think that was you being unfair, uh, okay? But I'm not sure what you want me to do about it.

Let's take a look at what Google has netted you.

The Supreme Court is Allergic to Math

The author suggests:

This problem was on full display earlier this month, when the Supreme Court heard arguments in Gill v. Whitford, a case that will determine the future of partisan gerrymandering — and the contours of American democracy along with it. As my colleague Galen Druke has reported, the case hinges on math: Is there a way to measure a map’s partisan bias and to create a standard for when a gerrymandered map infringes on voters’ rights?

Now, already I'm thinking this is not going to show us that any of the justices are bad at math; my guess is that the justices just don't think math is the standard of analysis (which is probably good, in general the Court should see the Constitution as the standard of analysis). We get some quotes from various justices:

Gorsuch: “It reminds me a little bit of my steak rub. I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each. And so what’s this court supposed to do? A pinch of this, a pinch of that?”

Breyer: “I think the hard issue in this case is are there standards manageable by a court, not by some group of social science political ex … you know, computer experts? I understand that, and I am quite sympathetic to that.”

Roberts: “It may be simply my educational background, but I can only describe it as sociological gobbledygook.”

First of all, these are from oral argument rather than opinions, so that's probably an important difference to keep in mind. Second, these are not examples of anyone doing math poorly, but examples of justices wondering whether "throw some math at it" is really an adequate answer in a constitutional case. These are the kinds of arguments you often hear from people who are quite good at math, Cathy O'Neill's Weapons of Math Destruction being probably the most famous case.

The article goes on to talk about McCleskey v. Kemp, a 1986 case.

McCleskey cited sophisticated statistical research, performed by two law professors and a statistician, that found that a defendant in Georgia was more than four times as likely to be sentenced to death if the victim in a capital case was white compared to if the victim was black. McCleskey argued that that discrepancy violated his 14th Amendment right to equal protection. In his majority opinion, Justice Lewis Powell wrote, “Statistics, at most, may show only a likelihood that a particular factor entered into some decisions.” McCleskey lost the case. It’s been cited as one of the worst decisions since World War II and has been called “the Dred Scott decision of our time.”

But again--no one is doing math badly here. The Court said in effect "we're deciding your case, not solving for X." It might well be better for the Court to defer to statistical analysis, we can certainly have that conversation... but if you think the Court should defer to (correct) statistical analysis, then the evidence is that you do not want Justice Brown Jackson on the Court, because either she's bad at math, or she will prioritize "math" that confirms her biases without bothering to check it. Perhaps this is true of some other justices!

Then the article goes into this "negative effect fallacy" song and dance. I cannot possibly write a thorough response to the whole Enos paper here. But one of the cases they mention is Arizona Free Enterprise Club's Freedom Club PAC, et al. v. Bennett. This article says:

The state provided money to publicly funded candidates to match private contributions. The plaintiffs wanted to strike this policy down, claiming that it had negative effects on private political speech. A team of political scientists used quantitative techniques to assess this claim (see here and here), and they found no evidence to support it. Roberts, writing the majority opinion, briefly mentioned these findings but dismissed them, declaring “it is never easy to prove a negative.” His argument appears to be that it was inherently hard for the plaintiffs to show that the state’s matching scheme had negative consequences for free speech and that we should, therefore, ignore the statistical evidence that found no relationship. However, there’s no reason that negative effects are harder to quantitatively detect than positive ones, and Roberts’s statement is based on a blatant logical fallacy.

So I went to the text of the case and found the language used there:

While there is evidence to support the contention of the candidates and independent expenditure groups that the matching funds provision burdens their speech, “it is never easy to prove a negative”—here, that candidates and groups did not speak or limited their speech because of the Arizona law.

The statistician's response is, "no, that's fallacious, look, we ran some numbers through some models and we think it likely that groups did not change their speech as a result of the law." But again, I don't see Robert's doing math badly, I see him rejecting a particular framing in which mere statistical projections are substituted for positive evidence in cases where people assert their rights have been violated. This is an argument about how strongly we should rely on statistics in interpreting the law, not a case of "statistics done badly." Roberts can be entirely on the wrong side of this argument and still not be bad at math.

(There is a parallel situation in criminal law in connection with "beyond a reasonable doubt." Courts have sometimes attempted to attached confidence percentages to that phrase, and have always been told that they cannot. It's not "guilty beyond 80% credence." It's just the phrase.)

Ultimately,

Enos and his coauthors proposed “that courts alter their norms and standards regarding the consideration of statistical evidence”

So this is definitely a policy dispute, not a question of how good anyone is at math.

The Hill article does make a more direct attack on Roberts' mathematical abilities:

According to Roberts, “the 685 instances identified amount to a very small fraction—less than three hundredths of one percent—of the 2.5 million civil cases filed in the district courts in the nine years included in the study. That’s a 99.97% compliance rate.”

That was bad math, resulting in an overstated compliance figure, because it used the wrong denominator.

Hold up, though. Why is it the wrong denominator?

The total number of civil cases over nine years is completely irrelevant to the calculation of a “compliance rate” because there was never any reason for recusal in the overwhelming majority of those matters (either because the judge owned no stocks or because there were no corporate parties involved). . . . Substituting a corrected number for the exaggerated “2.5 million” figure would have revealed a much lower compliance rate, by more than an order of magnitude.

Ah. So his math was fine, actually. He's just picking comparison points that paint the judiciary in a better light than the comparison points preferred by its critics. A similar criticism is made regarding judicial pay:

In what was probably a first for a chief justice’s report, Roberts included three color-coded graphs, one of which purported to show how badly judges’ pay had lost ground in comparison to law school deans. While federal district judges had earned slightly more than the Harvard dean in 1969, they had fallen far behind by 2006.

But the devil was in the baseline. Federal judges had just gotten a huge pay raise in 1969, which only temporarily made them better off than deans. If Roberts had chosen 1968 for the starting point, a year when judges earned less than deans, the comparison would have lost its punch.

Sneaky Roberts! But yet again, "Chief Justice Roberts's bad math" appears to criticize his laundering arguments using numbers. There's nothing wrong with the numbers, from a strictly mathematical point of view. They just paint a different picture than his critics would prefer to paint using the numbers they choose. That's not to say there's nothing objectionable happening here! But it's a very different problem than having someone who doesn't notice (or doesn't care) when wildly implausible numerical claims come across their desk.

My guess is that, if someone went over SCOTUS cases with a fine-toothed math comb, we could find other instances of justices doing math poorly. But combined with other things she has said and written, I find it difficult to conclude that Jackson is anywhere near smart enough to do good work on the Court. In the alternative, perhaps she is smart, but just casually dishonest in service to her radical political aims. I think this is also true of Sotomayor. I also think Roberts and Kavanaugh are not especially bright, but Roberts is both a capable managerial type, and clearly feels bound by traditional principles of jurisprudence in ways that Jackson and Sotomayor do not.

But that is perhaps too much text. TL;DR: You are the one who asked about Jackson, specifically, so if it bothers you that she's being "singled out," I guess bear that in mind next time you ask a question.

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