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Supreme Court Errors Aren’t Hard to Find

56 points by lnguyen 9y ago

Overtonwindow 9y ago
From working around the Supreme Court in my early days in Washington, I think this paragraph is a better explanation: "In interviews, former law clerks for Supreme Court justices, including some who argue cases before the high court today, said any errors were surely accidental, produced by talented and devoted people doing complex work under daunting circumstances." As I've been told by people who were clerks, the Justices don't research, or write really anything, especially the longer-serving Justices. Clerks make mistakes. It's not an indicator of the Justices themselves, as this article seems to be hinting at.
- maxxxxx 9y ago
  "Clerks make mistakes. " They become the judges' mistakes if they don't control the quality of the work the clerks are doing. Otherwise the judges could be removed and the clerks would sit in Supreme Court.
- s73ver_ 9y ago
  That... doesn't make things better?
ajross 9y ago
This seems to be missing the point. The court doesn't make "incorrect" decisions because it cites incorrect facts, it makes decisions the reader finds incorrect and in some cases happens to cite incorrect facts in support of that. In the very first example, does anyone think that correcting Alito on the frequency of drug testing in the private sector would have changed his vote? No, he'd just have removed that sentence form his opinion and found the same way, because he doesn't personally find drug testing to be a violation of privacy in the way the plaintiffs do. That's not a factual decision. The decisions are made, ultimately, out of personal conviction. If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you. Courts are political entities and always will be.
- Sniffnoy 9y ago
  And yet, judges -- and other people -- do in fact respond to argument, even if not as often as they would ideally. If you ignore this and pretend that they never do, you are still making a mistake.
  - ajross 9y ago
    Not in single cases they don't, at least not detectably. (Serious question: is there a story anywhere of a senior appelate judge with a tale about how they totally changed their long-held opinion after hearing a case? Don't think I've heard of one, though I'd love to read it if so.) People change their opinions slowly and generally along with much larger shifts in public perception. In fact there was a fun psych result just recently that extra facts make people less likely to concede an argument, not more.
- gnaritas 9y ago
  Your position presumes facts aren't part of how people arrive at their convictions to begin with. If you feed someone bad facts, they're going to come to bad conclusions, how can you deny this? > If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you. I want judges who will change their minds based on evidence; who will apply logic and reason, not judges who vote based on uninformed personal convictions.
  - irrational 9y ago
    So, you want judges that aren't human. Based on my experience, most convictions are not based on facts. If you want fact-based convictions I think we need to look at replacing human judges with AI judges.
    - gnaritas 9y ago
      I reject your notion that humans aren't swayed by facts; categorically. You live in a world that exists because people are swayed by facts. Humans are swayed by facts, the best ones for sure, certainly not all. If you're not swayed by facts, you will not make a good judge and don't belong on the court.
olympus 9y ago
This seems a little like nitpicking. Interested parties file briefs with the court, and opposing parties can also file a brief with the court. It appears that none of the errors are so grave that they should change the ruling of the court. This is good, a ruling should be robust towards a slight changing of the statistics. Statistics change often, but the underlying trends are more stable. Here are two examples from the article: 1. The NASA v. Nelson opinion wrote that 88% of private employers conduct background checks of their employees. The 88% number wasn't in any of the briefs filed with the court, but they did find in the briefs that 74% of employers surveyed conduct criminal background checks. Okay, the court got the number wrong, but clearly background checks are a common practice among private employers. Nothing damages the decision. 2. In the US v. Windsor the opinion states that most states permit first cousins to marry. Most states would imply that >=26 states permit first cousins to marry. In fact, 19 states permit first cousins to marry (restrictions are common). So the court got that fact wrong, but 19 states is still a sizeable portion of the states, indicating that permitting first cousins to marry is not uncommon (first cousins actually getting married is uncommon though). So again, the general point still stands. While I think it would be nice to have fact checkers, the ability for opposing parties to file briefs with their own correct numbers is a pretty good deterrence against people lying to the court. I think in a lot of these cases, the opposing parties thought, "well, that number isn't right, but I'm not going to try the justices' patience by making them change that 11 to a 12."
- yndoendo 9y ago
  All data sets and findings should be fully open, cited, and accessable to allow for public scrutiny and counter brief filing to point out erroneous statements.
jgowdy 9y ago
Easiest Supreme Court error to find: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn "Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial', in that it is not produced for sale" So what the authors of the Constitution meant by "interstate commerce" is "intrastate not-commerce." For those of you not aware, this is one of the biggest power grabs of the federal government in US history. This decision is used to allow the commerce clause to cover huge swaths of authority.
- Varcht 9y ago
  It was surprising to me to see "commerce" alluded to in the possible charges against Weinstein in Utah, go figure. http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-could-still-be-prosecuted-rape-utah-1049524 http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-co...
  - astura 9y ago
    Really interesting. The relevant bits for people who don't want to click: >Utah, like a number of other states, has a provision that stops the clock on the statute of limitations whenever the potential defendant is out of the state. In legal terminology, stopping the clock is referred to as “tolling” the statute of limitations. >Weinstein was out of the state of Utah for most of the 1997-2008 period, since he presumably visited the state usually just for Sundance. That would probably amount to less than two weeks a year in state. While he was out of the state, the statute of limitations clock would have been paused. >Is absentee tolling against a easily locatable defendant constitutional? Maybe not. The Constitution’s Commerce Clause — not usually referenced in criminal cases — might provide the basis for a challenge. Indeed, the U.S. Supreme Court has held that civil absentee tolling placed an undue burden on interstate commerce — and therefore violated the Commerce Clause — when applied against an out-of-state corporation that could have been sued before the statute of limitations ran out. >Lower courts have extended the ruling to also protect out-of-state individuals from tardy civil suit... Criminal law may be a different matter. >“I am not sure whether the Commerce Clause analysis would apply the same way to a criminal, as opposed to a civil, statute of limitations,” said University of San Diego law professor Walter Heiser, who has written on civil absentee tolling. “A State’s interests in deterring and punishing criminal conduct may well outweigh any concerns about the effect on interstate commerce.” >Yet, in a 1941 case, the U.S. Supreme Court did indeed use the Commerce Clause to invalidate a California criminal law, an “anti-Okie” statute that barred relocation of indigents into the state. However, that crime was inherently interstate, whereas rape is not. But Weinstein’s trips to Utah were for business purposes; he was engaged in interstate commerce. That’s a lot of “on the one hand” and “on the other hand.” >Yet another Supreme Court precedent is adverse to Weinstein, a 2000 case that struck down portions of the federal Violence Against Women Act. The Court held that the “non-economic, criminal nature” of such violence took such assaults outside the ambit of the Commerce Clause. That narrow view ignores the economic aspects that many say is inherent in all oppression of women but, ironically, could mean that absentee tolling would survive and Weinstein would lose. >Or a court might be swayed by the intertwined nature of Weinstein’s economic and alleged criminal activity. After all, his alleged victims and his Sundance visits were work-related. A court might decide that under those circumstances, the Commerce Clause could indeed come into play and hand Weinstein a win.
bmh_ca 9y ago
Justice is an outcome. Law is a process.
- irrational 9y ago
  What does that mean?
  - tlholaday 9y ago
    > What does that mean? "A binary that performs as desired is an outcome. Coding and compilation is a process."
    - bmh_ca 9y ago
      Nailed it.
olympus 9y ago
One thing jumps out at me from the article beyond the main point. All of the cases listed have a ruling that was"conservative" except for one. The one exception is Arizona v. US, where the main ruling was "liberal" but left a portion of Arizona's law intact, which was definitely "conservative" friendly and liberals were unhappy that it remained intact. It is implausible to me that there were no opinions pleasing to liberals that contained errors. Given the makeup of the court, it's possible that there just aren't very many liberal rulings, and none made it into the sample due to random chance. It's also possible that the liberal opinions were not examined and that the "moral force" of ProPublica's journalism is pushing to the left while trying to hide the bias from their reader. There was a seventh error mentioned that was not covered in the article, and they mentioned that it would be the subject of a future article. Does anybody care to guess what direction the ruling will lean in that case? Note: I'm making two comments on this thread since this is a completely separate point.
- QAPereo 9y ago
  It's an interesting point, and seems plausible, but I think actually finding some of those errors (i.e. doing some work) is the only way to settle it.
- Sangermaine 9y ago
  Instead of completely baseless speculation about liberal conspiracies to suppress the truth, you could demonstrate your claim by finding similar errors in "liberal" rulings. What you find "implausible" is irrelevant.
  - TimTheTinker 9y ago
    ^^ is making an interesting observation, followed by a plausible hypothesis. This is not “baseless speculation”.
    - Sangermaine 9y ago
      It is completely baseless speculation. It creates an unfounded implication of wrongdoing or subterfuge on the part of Pro Publica without any evidence. This is a classic FUD tactic.
binarynate 9y ago
There are some great episodes of More Perfect (Radiolab's spinoff about the supreme court) on this topic: https://play.radiopublic.com/radiolab-presents-more-perfect-yWwDL6/ep/s1!9ede2f1532dae5a2cb3cb127383f2c7ee7521972 https://play.radiopublic.com/radiolab-presents-more-perfect-...
rayiner 9y ago
> They are also supposed to be entirely accurate. This displays a really distorted perspective of the Supreme Court's role. The Supreme Court is supposed to get the law and the facts of the case right. If there is an error there, that's catastrophic. But the adversarial process is designed to ensure the accuracy of the facts and the law. By the time a case gets to the Supreme Court, the assertions in the briefs have been intensely scrutinized by the parties and typically two lower courts. Facts about the world outside the briefing, on the other hand, are mostly irrelevant, and relied on for color or their common-sense effect as necessary to flesh out the reasoning. The background check quote is a good example. There, the Court wasn't even necessarily accepting the 88% number at face value, but cited it for the common-sense proposition that private employers regularly require background checks: > The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”). The legal question here was whether it was Constitutional for the government to require certain disclosures. The Court noted that where acting as an employer, the government has more latitude to intrude into private facts than when it acts as the government. It then reasoned, because private employers often require background checks, it was reasonable for the government to do so as well. Whether 88% or 53% of private employers required background checks was irrelevant. Indeed, if the exact number had been determinative, the Court likely would not have cited to an unvetted amicus brief for the point.
- robrenaud 9y ago
  If the facts don't matter, don't cite them. If they do matter, get them right. It's pretty sad to apply less scrutiny to a supreme court ruling than a university term paper.
- vilhelm_s 9y ago
pattisapu 9y ago
"We are not final because we are infallible, but we are infallible only because we are final." - Justice Robert H. Jackson

56 points by lnguyen 9y ago

From working around the Supreme Court in my early days in Washington, I think this paragraph is a better explanation: "In interviews, former law clerks for Supreme Court justices, including some who argue cases before the high court today, said any errors were surely accidental, produced by talented and devoted people doing complex work under daunting circumstances." As I've been told by people who were clerks, the Justices don't research, or write really anything, especially the longer-serving Justices. Clerks make mistakes. It's not an indicator of the Justices themselves, as this article seems to be hinting at.

maxxxxx 9y ago
"Clerks make mistakes. " They become the judges' mistakes if they don't control the quality of the work the clerks are doing. Otherwise the judges could be removed and the clerks would sit in Supreme Court.
s73ver_ 9y ago
That... doesn't make things better?

ajross 9y ago

This seems to be missing the point. The court doesn't make "incorrect" decisions because it cites incorrect facts, it makes decisions the reader finds incorrect and in some cases happens to cite incorrect facts in support of that. In the very first example, does anyone think that correcting Alito on the frequency of drug testing in the private sector would have changed his vote? No, he'd just have removed that sentence form his opinion and found the same way, because he doesn't personally find drug testing to be a violation of privacy in the way the plaintiffs do. That's not a factual decision. The decisions are made, ultimately, out of personal conviction. If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you. Courts are political entities and always will be.

Sniffnoy 9y ago
And yet, judges -- and other people -- do in fact respond to argument, even if not as often as they would ideally. If you ignore this and pretend that they never do, you are still making a mistake.
- ajross 9y ago
  Not in single cases they don't, at least not detectably. (Serious question: is there a story anywhere of a senior appelate judge with a tale about how they totally changed their long-held opinion after hearing a case? Don't think I've heard of one, though I'd love to read it if so.) People change their opinions slowly and generally along with much larger shifts in public perception. In fact there was a fun psych result just recently that extra facts make people less likely to concede an argument, not more.
gnaritas 9y ago
Your position presumes facts aren't part of how people arrive at their convictions to begin with. If you feed someone bad facts, they're going to come to bad conclusions, how can you deny this? > If you want judges to issue decisions you agree with you need to arrange to have those slots filled with judges who agree with you. I want judges who will change their minds based on evidence; who will apply logic and reason, not judges who vote based on uninformed personal convictions.
- irrational 9y ago
  So, you want judges that aren't human. Based on my experience, most convictions are not based on facts. If you want fact-based convictions I think we need to look at replacing human judges with AI judges.
  - gnaritas 9y ago
    I reject your notion that humans aren't swayed by facts; categorically. You live in a world that exists because people are swayed by facts. Humans are swayed by facts, the best ones for sure, certainly not all. If you're not swayed by facts, you will not make a good judge and don't belong on the court.

olympus 9y ago

This seems a little like nitpicking. Interested parties file briefs with the court, and opposing parties can also file a brief with the court. It appears that none of the errors are so grave that they should change the ruling of the court. This is good, a ruling should be robust towards a slight changing of the statistics. Statistics change often, but the underlying trends are more stable. Here are two examples from the article: 1. The NASA v. Nelson opinion wrote that 88% of private employers conduct background checks of their employees. The 88% number wasn't in any of the briefs filed with the court, but they did find in the briefs that 74% of employers surveyed conduct criminal background checks. Okay, the court got the number wrong, but clearly background checks are a common practice among private employers. Nothing damages the decision. 2. In the US v. Windsor the opinion states that most states permit first cousins to marry. Most states would imply that >=26 states permit first cousins to marry. In fact, 19 states permit first cousins to marry (restrictions are common). So the court got that fact wrong, but 19 states is still a sizeable portion of the states, indicating that permitting first cousins to marry is not uncommon (first cousins actually getting married is uncommon though). So again, the general point still stands. While I think it would be nice to have fact checkers, the ability for opposing parties to file briefs with their own correct numbers is a pretty good deterrence against people lying to the court. I think in a lot of these cases, the opposing parties thought, "well, that number isn't right, but I'm not going to try the justices' patience by making them change that 11 to a 12."

yndoendo 9y ago
All data sets and findings should be fully open, cited, and accessable to allow for public scrutiny and counter brief filing to point out erroneous statements.

jgowdy 9y ago

Easiest Supreme Court error to find: https://en.wikipedia.org/wiki/Wickard_v._Filburn https://en.wikipedia.org/wiki/Wickard_v._Filburn "Wickard thus establishes that Congress can regulate purely intrastate activity that is not itself 'commercial', in that it is not produced for sale" So what the authors of the Constitution meant by "interstate commerce" is "intrastate not-commerce." For those of you not aware, this is one of the biggest power grabs of the federal government in US history. This decision is used to allow the commerce clause to cover huge swaths of authority.

Varcht 9y ago
It was surprising to me to see "commerce" alluded to in the possible charges against Weinstein in Utah, go figure. http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-could-still-be-prosecuted-rape-utah-1049524 http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-co...
- astura 9y ago
  Really interesting. The relevant bits for people who don't want to click: >Utah, like a number of other states, has a provision that stops the clock on the statute of limitations whenever the potential defendant is out of the state. In legal terminology, stopping the clock is referred to as “tolling” the statute of limitations. >Weinstein was out of the state of Utah for most of the 1997-2008 period, since he presumably visited the state usually just for Sundance. That would probably amount to less than two weeks a year in state. While he was out of the state, the statute of limitations clock would have been paused. >Is absentee tolling against a easily locatable defendant constitutional? Maybe not. The Constitution’s Commerce Clause — not usually referenced in criminal cases — might provide the basis for a challenge. Indeed, the U.S. Supreme Court has held that civil absentee tolling placed an undue burden on interstate commerce — and therefore violated the Commerce Clause — when applied against an out-of-state corporation that could have been sued before the statute of limitations ran out. >Lower courts have extended the ruling to also protect out-of-state individuals from tardy civil suit... Criminal law may be a different matter. >“I am not sure whether the Commerce Clause analysis would apply the same way to a criminal, as opposed to a civil, statute of limitations,” said University of San Diego law professor Walter Heiser, who has written on civil absentee tolling. “A State’s interests in deterring and punishing criminal conduct may well outweigh any concerns about the effect on interstate commerce.” >Yet, in a 1941 case, the U.S. Supreme Court did indeed use the Commerce Clause to invalidate a California criminal law, an “anti-Okie” statute that barred relocation of indigents into the state. However, that crime was inherently interstate, whereas rape is not. But Weinstein’s trips to Utah were for business purposes; he was engaged in interstate commerce. That’s a lot of “on the one hand” and “on the other hand.” >Yet another Supreme Court precedent is adverse to Weinstein, a 2000 case that struck down portions of the federal Violence Against Women Act. The Court held that the “non-economic, criminal nature” of such violence took such assaults outside the ambit of the Commerce Clause. That narrow view ignores the economic aspects that many say is inherent in all oppression of women but, ironically, could mean that absentee tolling would survive and Weinstein would lose. >Or a court might be swayed by the intertwined nature of Weinstein’s economic and alleged criminal activity. After all, his alleged victims and his Sundance visits were work-related. A court might decide that under those circumstances, the Commerce Clause could indeed come into play and hand Weinstein a win.

bmh_ca 9y ago

Justice is an outcome. Law is a process.

irrational 9y ago
What does that mean?
- tlholaday 9y ago
  > What does that mean? "A binary that performs as desired is an outcome. Coding and compilation is a process."
  - bmh_ca 9y ago
    Nailed it.

olympus 9y ago

One thing jumps out at me from the article beyond the main point. All of the cases listed have a ruling that was"conservative" except for one. The one exception is Arizona v. US, where the main ruling was "liberal" but left a portion of Arizona's law intact, which was definitely "conservative" friendly and liberals were unhappy that it remained intact. It is implausible to me that there were no opinions pleasing to liberals that contained errors. Given the makeup of the court, it's possible that there just aren't very many liberal rulings, and none made it into the sample due to random chance. It's also possible that the liberal opinions were not examined and that the "moral force" of ProPublica's journalism is pushing to the left while trying to hide the bias from their reader. There was a seventh error mentioned that was not covered in the article, and they mentioned that it would be the subject of a future article. Does anybody care to guess what direction the ruling will lean in that case? Note: I'm making two comments on this thread since this is a completely separate point.

QAPereo 9y ago
It's an interesting point, and seems plausible, but I think actually finding some of those errors (i.e. doing some work) is the only way to settle it.
Sangermaine 9y ago
Instead of completely baseless speculation about liberal conspiracies to suppress the truth, you could demonstrate your claim by finding similar errors in "liberal" rulings. What you find "implausible" is irrelevant.
- TimTheTinker 9y ago
  ^^ is making an interesting observation, followed by a plausible hypothesis. This is not “baseless speculation”.
  - Sangermaine 9y ago
    It is completely baseless speculation. It creates an unfounded implication of wrongdoing or subterfuge on the part of Pro Publica without any evidence. This is a classic FUD tactic.

binarynate 9y ago

There are some great episodes of More Perfect (Radiolab's spinoff about the supreme court) on this topic: https://play.radiopublic.com/radiolab-presents-more-perfect-yWwDL6/ep/s1!9ede2f1532dae5a2cb3cb127383f2c7ee7521972 https://play.radiopublic.com/radiolab-presents-more-perfect-...

rayiner 9y ago

> They are also supposed to be entirely accurate. This displays a really distorted perspective of the Supreme Court's role. The Supreme Court is supposed to get the law and the facts of the case right. If there is an error there, that's catastrophic. But the adversarial process is designed to ensure the accuracy of the facts and the law. By the time a case gets to the Supreme Court, the assertions in the briefs have been intensely scrutinized by the parties and typically two lower courts. Facts about the world outside the briefing, on the other hand, are mostly irrelevant, and relied on for color or their common-sense effect as necessary to flesh out the reasoning. The background check quote is a good example. There, the Court wasn't even necessarily accepting the 88% number at face value, but cited it for the common-sense proposition that private employers regularly require background checks: > The questions challenged by respondents are part of a standard employment background check of the sort used by millions of private employers. See Brief for Consumer Data Indus. Assn. et al. as Amici Curiae 2 (hereinafter CDIA Brief) (“[M]ore than 88% of U. S. companies … perform background checks on their employees”). The Government itself has been conducting employment investigations since the earliest days of the Republic. L. White, The Federalists: A Study in Administrative History 262–263 (1948); see OPM, Biography of An Ideal: History of the Federal Civil Service 8 (2002) (noting that President Washington “set a high standard” for federal office and finalized appointments only after “investigating [candidates’] capabilities and reputations”). The legal question here was whether it was Constitutional for the government to require certain disclosures. The Court noted that where acting as an employer, the government has more latitude to intrude into private facts than when it acts as the government. It then reasoned, because private employers often require background checks, it was reasonable for the government to do so as well. Whether 88% or 53% of private employers required background checks was irrelevant. Indeed, if the exact number had been determinative, the Court likely would not have cited to an unvetted amicus brief for the point.

robrenaud 9y ago
If the facts don't matter, don't cite them. If they do matter, get them right. It's pretty sad to apply less scrutiny to a supreme court ruling than a university term paper.
vilhelm_s 9y ago

pattisapu 9y ago

"We are not final because we are infallible, but we are infallible only because we are final." - Justice Robert H. Jackson