The Supreme Court

[_Res Ipsa]

This isn't what you are discussing, but I have been deeply bothered by the extent to which Supreme Court decisions have turned on empirical questions where the justices got it flat wrong and obviously so. I'm not sure what the solution is, but it happens more often and more egregiously than what we have a right to expect.

To pick an issue seemingly dear to DT's heart, important precedents regarding the rights of sex offenders rest in part on Kennedy horribly sourcing a false idea about recidivism rates.

Well, it is kind of. I think I talked about this problem a few threads ago. I'm not familiar with the record in that case. Without reviewing the actual findings of fact by the trial court, it's hard for me to say exactly what went wrong there. The problem, as I see it, is that Kennedy shouldn't making factual decisions. That's the job of the trial court. I'm inclined to suspect that the study was referenced in a friend of the court brief, where standards are much looser than they are in briefs by the parties. In my opinion, the Justices should be much more restrained in relying on studies in friend of the court briefs to reach factual conclusions. If the findings of fact from the trial court did not include a finding of fact about recidivism rates, and Kennedy thought that such a finding was material to the Court's decision, he should have ordered the case remanded to the trial court for additional evidence and a finding of fact on recidivism. If there is a finding of fact that is not supported by evidence presented to the trial court, he should reverse and send it back down. What he shouldn't do is find facts on his own. But, unfortunately, that's what happens when friends of the court make public policy arguments, throwing in all kinds of statistics and studies.

Some appellate judge somewhere once said: These "friends" of the court, aren't. I agree. We have a system set up where appellate courts must never, never, ever, ever, decide the facts. But then they go ahead and decide the facts under the guise of examining public policy. I would favor the Court narrowing the role of the friend of the court brief over having the Court hire advisory experts that would lead to further expansion of the Court's fact finding.

I think you point out a legitimate problem, but I don't think the solution is to help the Court become a better super fact finder.

[_DoubtingThomas]

To pick an issue seemingly dear to DT's heart, important precedents regarding the rights of sex offenders rest in part on Kennedy horribly sourcing a false idea about recidivism rates.

I think the sex offender system registry makes no sense because the majority of register offenders are not rapists or child molesters according to the New York Times and other sources.
https://www.nytimes.com/roomfordebate/2 ... -offenders
https://www.economist.com/leaders/2009/ ... t-sex-laws

But it is not an issue dear to my heart. In fact I no longer care because the system is never going to reform in the near future. I care much more about scientific progress and fighting climate change. I care about all the harm Citizens United can do. Our democracy is turning to an oligarchy and that is a big issue. But it seems we have no rational justices in supreme court. The court is becoming a political circus.

[_honorentheos]

Now I understand the Supreme Court is not all powerful (but it kind of is). I understand that Congress makes the law, not the court. However, the Supreme Court allowed Citizens United. Citizens United is destroying our democracy and the Supreme Court is responsible for it. It is very hard (or impossible) to challenge candidates that are getting millions of dollars.

Out of curiosity, how much did the knowledge whoever got elected in 2016 was guaranteed to replace Justice Scalia play into your decision on who to vote for in the presidential election?

[Guest]

Yes, we're all taught in civics or government class that the Supreme Court is supposed to be apolitical. But that's just nice sounding ____. The Supreme Court is political. It has always been political. The Justices cannot decide cases without relying on political beliefs and opinions. The devastating critiques of legal realism and CLS show, without question, that deciding cases cannot be done without using political beliefs and opinions. You're compiling that the Supreme Court isn't acting consistent with a fairy tale you've been told and accepted. But the problem isn't with the Court -- it's with the fairy tale.

So the tradition needs to end. The most powerful court in the world shouldn't be political because it affects the entire country. Perhaps it would help if we get Justices trained in statistics, medicine, and cognitive bias psychology.

You keep harping on the scientific issues like medicine for deciding Roe v. Wade. Tell me, how does medicine help one decide whether or under what the state should be allowed to use it's power to take money or liberty from its citizens if they terminate a pregnancy? Tell me which medical textbook I can look that one up in? Look all day or all year -- you won't find it. You won't find it because it's not a medical or scientific question -- it's a political question.

It is true that modern medical science doesn't have many answers yet, but here is what it can tell us "Assuming that consciousness is mainly localized in the cortex, consciousness cannot emerge before 24 gestational weeks when the thalamocortical connections from the sense organs are established"

Lagercrantz, Hugo. "The emergence of consciousness: science and ethics." Seminars in Fetal and Neonatal Medicine. Vol. 19. No. 5. Elsevier, 2014.

Are philosophy and politics superior to science? Only science can solve many controversies in our world.

That's another way of saying what I said above: Applying the general language of the Constitution (or principles derived from that language) to the facts of a specific case do not dictate a single result.

So, we have a two hundred year old blueprint for a government. How do you suggest we apply it to a particular set of facts?

Okay. Let's talk about gun control. The constitution says regulated militias have the right to have weapons, but it is clear that civilians shouldn't have big military weapons. So, is the military weapons ban unconstitutional?

[_EAllusion]

This isn't what you are discussing, but I have been deeply bothered by the extent to which Supreme Court decisions have turned on empirical questions where the justices got it flat wrong and obviously so. I'm not sure what the solution is, but it happens more often and more egregiously than what we have a right to expect.

To pick an issue seemingly dear to DT's heart, important precedents regarding the rights of sex offenders rest in part on Kennedy horribly sourcing a false idea about recidivism rates.

Well, it is kind of. I think I talked about this problem a few threads ago. I'm not familiar with the record in that case. Without reviewing the actual findings of fact by the trial court, it's hard for me to say exactly what went wrong there. The problem, as I see it, is that Kennedy shouldn't making factual decisions. That's the job of the trial court. I'm inclined to suspect that the study was referenced in a friend of the court brief, where standards are much looser than they are in briefs by the parties. In my opinion, the Justices should be much more restrained in relying on studies in friend of the court briefs to reach factual conclusions. If the findings of fact from the trial court did not include a finding of fact about recidivism rates, and Kennedy thought that such a finding was material to the Court's decision, he should have ordered the case remanded to the trial court for additional evidence and a finding of fact on recidivism. If there is a finding of fact that is not supported by evidence presented to the trial court, he should reverse and send it back down. What he shouldn't do is find facts on his own. But, unfortunately, that's what happens when friends of the court make public policy arguments, throwing in all kinds of statistics and studies.

Some appellate judge somewhere once said: These "friends" of the court, aren't. I agree. We have a system set up where appellate courts must never, never, ever, ever, decide the facts. But then they go ahead and decide the facts under the guise of examining public policy. I would favor the Court narrowing the role of the friend of the court brief over having the Court hire advisory experts that would lead to further expansion of the Court's fact finding.

I think you point out a legitimate problem, but I don't think the solution is to help the Court become a better super fact finder.

My comment was a reference to Kenndy's opinion in McKune v. Lile which was then used by him in an important later case Smith vs. Doe. He cites a statistic on sexual offender recidivism rates from a decade old report from the Justice Department. Importantly, his reasoning, regardless of other potential flaws in it, hinges on whether his empirical claim is correct. The Justice Department's source for that statistic, it turns out, was a Psychology Today article written by some counselors where they make an assertion about their practice that has no basis in fact. It's simply an invented number. Actual emprical study shows a completely different picture. Myths about sexual offender recidivism continue to persist and Kennedy's reasoning being so important to how we treat them helps fuel that.

What really got me attuned to this issue was Florida vs. Harris about five years ago. This case challenged whether open-air dog sniff alerts could constitute probable cause for a search. The Florida Supreme Court ruled in favor of the defendant, arguing that a mere training and certification for drug dogs is not sufficient to believe their alerts constitute probable cause. The Supreme Court reversed in a 9-0 decision. Not even Sotomayor dissented. There's a lot that went into this, as you would expect, but the short of it is the entire case hinges on a specific empirical question. Critics asserted that police dog training is unreliable and police dogs often react to officer prompts such that they are merely a proxy for police hunches in drug alert scenarios. Police hunches by precedent have been considered not a sufficient basis for probable cause. Defenders of the practice argued that police dog training is sufficient to produce a reliable drug alerts from dogs such that their alerts do constitute probable cause.

The science is clear as day that the former is correct and the latter is wrong. Moreover defenders of dog alerts have not come close to establishing that their practices are reliable via scientifically credible means. This is a quite accessible conclusion from the briefs alone. Yet 9 justices ruled the other way with Kagan in the unanimous decision writing that dog certifications and trainings are a sufficient indication of reliability.

That they all could get something so wrong jarred something in me. Judges necessarily have to rule on empirical questions they are not trained by education or have the ability to handle. Adjudicating empirical questions like this is part of the job and there isn't a better alternative. I have some attorneys I know whom I occasionally talk to about this issue. They agree it is a problem, and I've heard some interesting idaes to improve the situation, but the underlying worry doesn't go away. We trust questions to be decided by people who lack qualifications to answer them and this produces worse outcomes than if this wasn't the case. At this point, I have so many examples in my head of Supreme Court opinions making false empirical assertions/predictions I've lost track. Some of these are substantially important to the conclusions reached. And I really don't know what would make the situation better.

[_EAllusion]

The press is laser focused on Roe vs. Wade, but after Trump replaces Kennedy, there are almost certainly 4 solid votes on the Supreme Court for allowing teaching creationism and other forms of Christian apologetics masquerading as legitimate scholarship in public schools. If I were a betting man, I'd say Roberts is likely to side with those conservatives and be the 5th vote in opening public schools to creationism and friends. If either Breyer or Gingsburg die in office before Trump is out or the Senate flips, then 5 votes for that is all but assured. And that's got a decent chance of happening.

When that decision comes down, it's going to be filled with garbage reasoning on science and/or philosophy of science. And it's going to be maddening. And the fact that these people who have no idea what they are talking about get to make that call will not stop being frustrating.

[_DoubtingThomas]

When that decision comes down, it's going to be filled with garbage reasoning on science and/or philosophy of science. And it's going to be maddening. And the fact that these people who have no idea what they are talking about get to make that call will not stop being frustrating.

That would be so sad.

My comment was a reference to Kenndy's opinion in McKune v. Lile which was then used by him in an important later case Smith vs. Doe. He cites a statistic on sexual offender recidivism rates from a decade old report from the Justice Department. Importantly, his reasoning, regardless of other potential flaws in it, hinges on whether his empirical claim is correct. The Justice Department's source for that statistic, it turns out, was a Psychology Today article written by some counselors where they make an assertion about their practice that has no basis in fact. It's simply an invented number. Actual emprical study shows a completely different picture. Myths about sexual offender recidivism continue to persist and Kennedy's reasoning being so important to how we treat them helps fuel that.

What really got me attuned to this issue was Florida vs. Harris about five years ago. This case challenged whether open-air dog sniff alerts could constitute probable cause for a search. The Florida Supreme Court ruled in favor of the defendant, arguing that a mere training and certification for drug dogs is not sufficient to believe their alerts constitute probable cause. The Supreme Court reversed in a 9-0 decision. Not even Sotomayor dissented. There's a lot that went into this, as you would expect, but the short of it is the entire case hinges on a specific empirical question. Critics asserted that police dog training is unreliable and police dogs often react to officer prompts such that they are merely a proxy for police hunches in drug alert scenarios. Police hunches by precedent have been considered not a sufficient basis for probable cause. Defenders of the practice argued that police dog training is sufficient to produce a reliable drug alerts from dogs such that their alerts do constitute probable cause.

The science is clear as day that the former is correct and the latter is wrong. Moreover defenders of dog alerts have not come close to establishing that their practices are reliable via scientifically credible means. This is a quite accessible conclusion from the briefs alone. Yet 9 justices ruled the other way with Kagan in the unanimous decision writing that dog certifications and trainings are a sufficient indication of reliability.

That they all could get something so wrong jarred something in me. Judges necessarily have to rule on empirical questions they are not trained by education or have the ability to handle. Adjudicating empirical questions like this is part of the job and there isn't a better alternative. I have some attorneys I know whom I occasionally talk to about this issue. They agree it is a problem, and I've heard some interesting idaes to improve the situation, but the underlying worry doesn't go away. We trust questions to be decided by people who lack qualifications to answer them and this produces worse outcomes than if this wasn't the case. At this point, I have so many examples in my head of Supreme Court opinions making false empirical assertions/predictions I've lost track. Some of these are substantially important to the conclusions reached. And I really don't know what would make the situation better.

So you agree with me that Justices need some scientific training? and really what a waste of taxpayer money.

The problem, as I see it, is that Kennedy shouldn't making factual decisions. That's the job of the trial court.

You may be right, but the Supreme Court is making the big decisions. We may soon have creationism in science classes. I should really consider moving to Canada because Americans are stupid. Would you change your mind about the so-called Supreme Court?

Out of curiosity, how much did the knowledge whoever got elected in 2016 was guaranteed to replace Justice Scalia play into your decision on who to vote for in the presidential election?

Merrick Garland was another Citizens United idiot.

[_honorentheos]

Out of curiosity, how much did the knowledge whoever got elected in 2016 was guaranteed to replace Justice Scalia play into your decision on who to vote for in the presidential election?

Merrick Garland was another Citizens United idiot.

Does this mean you felt that the ability of the President to nominate a justice for the Supreme Court on day one was not a major influence on your selecting a candidate?

[_Doctor CamNC4Me]

I'm bumping this because I'd like Ajax to answer me.

- Doc

Since Ajax18 is logged in right now. Well?

- Doc

[_ajax18]

I'm bumping this because I'd like Ajax to answer me.

- Doc

Since Ajax18 is logged in right now. Well?

- Doc

I didn't say the Democrats have done the exact same thing. I said they've done similar things.