https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/
Honestly, in a world where we have the ability to tackle increasingly complex problems with statistics, the aversion of judges to hard evidence is very concerning. These techniques can help us show bias in policing, gerrymandering, and a lot more, but these justices's stances are baffling, and honestly, terrifying. They wield too much power to not be able to understand data and implement law based on facts.
The Supreme Court does not compute. Or at least some of its members would rather not. The justices, the most powerful jurists in the land, seem to have a reluctance even an allergy to taking math and statistics seriously.
For decades, the court has struggled with quantitative evidence of all kinds in a wide variety of cases. Sometimes justices ignore this evidence. Sometimes they misinterpret it. And sometimes they cast it aside in order to hold on to more traditional legal arguments. (And, yes, sometimes they also listen to the numbers.) Yet the world itself is becoming more computationally driven, and some of those computations will need to be adjudicated before long. Some major artificial intelligence case will likely come across the courts desk in the next decade, for example. By voicing an unwillingness to engage with data-driven empiricism, justices and thus the court are at risk of making decisions without fully grappling with the evidence.
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 maps partisan bias and to create a standard for when a gerrymandered map infringes on voters rights?
Four of the eight justices who regularly speak during oral arguments voiced anxiety about using calculations to answer questions about bias and partisanship. Some said the math was unwieldy, complicated, and newfangled. One justice called it baloney and argued that the difficulty the public would have in understanding the test would ultimately erode the legitimacy of the court.
And Chief Justice John Roberts, most of all, dismissed the modern attempts to quantify partisan gerrymandering: It may be simply my educational background, but I can only describe it as sociological gobbledygook.
This is a real problem, Sanford Levinson, a professor of law and government at the University of Texas at Austin, told me. Because more and more law requires genuine familiarity with the empirical world and, frankly, classical legal analysis isnt a particularly good way of finding out how the empirical world operates. But top-level law schools like Harvard all nine current justices attended Harvard or Yale emphasize exactly those traditional, classical legal skills, Levinson said.
During the Gill v. Whitford oral argument, the math-skeptical justices groped for an out a simpler legal alternative that could save them from having to fully embrace the statistical standards in their decisionmaking. When I read all that social science stuff and the computer stuff, I said, Is there a way of reducing it to something thats manageable? said Justice Breyer, who is nevertheless expected to vote with the courts liberal bloc.
Its easy to imagine a situation where the answer for this and many other cases is, simply, No. The world is a complicated place.
Another instance of judicial innumeracy: the Supreme Courts decision on a Fourth Amendment case about federal searches and seizures called Elkins v. United States in 1960. In his majority opinion, Justice Potter Stewart discussed how no data existed showing that people in states that had stricter rules regarding the admission of evidence obtained in an unlawful search were less likely to be subjected to these searches. He wrote, Since, as a practical matter, it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.
This, however, is silly. It conflates two meanings of the word negative. Philosophically, sure, its difficult to prove that something does not exist: No matter how prevalent gray elephants are, their numbers alone cant prove the nonexistence of polka-dotted elephants. Arithmetically, though, scientists, social and otherwise, demonstrate negatives as in a decrease, or a difference in rate all the time. Theres nothing special about these kinds of negatives. Some drug tends to lower blood pressure. The average lottery player will lose money. A certain voting requirement depresses turnout.
Honestly, in a world where we have the ability to tackle increasingly complex problems with statistics, the aversion of judges to hard evidence is very concerning. These techniques can help us show bias in policing, gerrymandering, and a lot more, but these justices's stances are baffling, and honestly, terrifying. They wield too much power to not be able to understand data and implement law based on facts.