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538: The Supreme Court Is Allergic To Math

N

nynt9

Member
https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/

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 court’s 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 map’s partisan bias and to create a standard for when a gerrymandered map infringes on voters’ rights?
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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.
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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.”
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“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 isn’t 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.
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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 that’s manageable?’” said Justice Breyer, who is nevertheless expected to vote with the court’s liberal bloc.

It’s easy to imagine a situation where the answer for this and many other cases is, simply, “No.” The world is a complicated place.
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Another instance of judicial innumeracy: the Supreme Court’s 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, it’s difficult to prove that something does not exist: No matter how prevalent gray elephants are, their numbers alone can’t 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. There’s 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.
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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.
 
P

Poppy

Member
considering that justices are appointed (for life) by politicians who rely on low information/emotional voters, it seems unlikely to change soon
 
T

tuxfool

Banned
Poppy said:
considering that justices are appointed (for life) by politicians who rely on low information/emotional voters, it seems unlikely to change soon
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Also they tend to be old as fuck and not given to considering newer approaches of tackling problems.
 
C

Cagey

Banned
But top-level law schools like Harvard — all nine current justices attended Harvard or Yale — emphasize exactly those traditional, classical legal skills, Levinson said.
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This problem of American jurisprudence isn't exclusive to YLS, HLS, CLS (had to sneak us in there), etc.

You likely won't find a law school in the country that doesn't emphasize classical legal reasoning. You can surely find the odd professor here and there, but that's about it.
 
W

WedgeX

Banned
Roberts position is especially egregious since Brown v. Board of Education hinged so much on the sociological work in Gunnar Myrdal’s An American Dilemma.
 
E

enzo_gt

tagged by Blackace
The post-fact, counter- and incitement-cultured, and technocratically-averse world is a real one and it scares the absolute shit out of me.
 
Y

Yazzees

Member
Our internet laws are written and interpreted by people who aren't cognizant of even 10% of its necessity to everyday life nowadays.

Also Gorsuch should not be on the Supreme Court.
 
S

SolarPowered

Member
This doesn't surprise me even if age isn't necessarily tied to political alignment. All this newfangled math and science in politics might be scary for judges who've been doing things a certain way for three or four decades. The SCOTUS might not necessarily more fresh blood to become liberal, but it does need fresh blood to become more familiar with math and science that will become increasingly important in politics and law enforcement.

Can't wait for 2020. We're going to see the beginnings of an influx of generation x and below people in courts, the house, the senate and hopefully the presidency.
 
K

Kill3r7

Member
This is the job of the judicial clerks and not the 9 Justices themselves. It is practically in the job description.
 
L

LilZippa

Member
Group A uses a algorithm to ensure they are the dominate party by separating lines with amazing precision. Group B complains to Court that they can't win because the rules are being made using math to ensure they can't win. Court says math is hard and they can't figure it out so good job Group A.
 
V

Volimar

Member
I'm guessing there aren't many STEM/Pre-Law double majors out there, but come on. If you don't understand it, ask for it to be explained to you, don't dismiss it because you're embarrassed.
 
B

Beartruck

Member
God damn it Roberts. Guy asks for evidence that partisan gerrymandering is bad, they bring the evidence, and he just goes "I dont understand so it must be bullshit." That bodes poorly for this case.
 
C

Cagey

Banned
Kill3r7 said:
This is the job of the judicial clerks and not the 9 Justices themselves. It is practically in the job description.
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The first level problem here lies with the justices' aversion to empirical data, not their ability to parse through said data.

Volimar said:
I'm guessing there aren't many STEM/Pre-Law double majors out there, but come on. If you don't understand it, ask for it to be explained to you, don't dismiss it because you're embarrassed.
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They're all doing patent work.
 
T

traveler

Not Wario
This would be unacceptable in my eyes for a minor court judge, much less the HIGHEST court in the land. I mean, I get it- I butt heads with my purely left brain driven friends all the time when they try to quantify literally everything and don't understand why a rottentomato score doesn't represent useful criticism in the slightest, but a total aversion to math, especially in a field where data driven evidence is likely frequently relevant is unthinkable.

These guys even attend the top schools- I would expect some number of statistical understanding courses to be a part of their coursework regardless of major as a part of gaining a comprehensive liberal arts education. Bringing an understanding of the more intuitive, reason driven fields to the more data driven ones and bringing an understanding of the more data driven fields to the more intuitive, reason driven ones are key arguments for the liberal arts education to begin with! How can the nation's leading liberal arts institutions fail to deliver that?

Chmpocalypse said:
The approach to science is a social construct built over thousands of years because it works with reality. It's not a social construct in the sense I suspect you mean...
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Poster is referencing another recent thread. :p
 
K

Kill3r7

Member
Cagey said:
The first level problem here lies with the justices' aversion to empirical data, not their ability to parse through said data.



They're all doing patent work.
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Disagree. The clerks basically write the opinion prior to oral arguments.

Also, no one in their right mind is turning down a SCOTUS clerkship to jumpstart their career in patent prosecution or litigation. It is arguably of the most prestigious positions a recent law grad can land.
 
chekhonte

chekhonte

Member
SolarPowered said:
I thought Kennedy was the judge to keep our eyes on? The ruling will almost surely be a 5-4 one, so we shouldn't be freaking out too much over Gorsuch, Clarence and Roberts' statements.
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I hope you're right. It'll be a bombshell if it is 5-4. It will devastate the republican party for years to come. This makes me think that it'll go the other way. The Supreme Court is reluctant to make decisions with direct, large political consequences.
 
W

Wowfunhappy

Member
LilZippa said:
Group A uses a algorithm to ensure they are the dominate party by separating lines with amazing precision. Group B complains to Court that they can't win because the rules are being made using math to ensure they can't win. Court says math is hard and they can't figure it out so good job Group A.
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Sounds pretty accurate.
 
B

B-Dubs

No Scrubs
SolarPowered said:
I thought Kennedy was the judge to keep our eyes on? The ruling will almost surely be a 5-4 one, so we shouldn't be freaking out too much over Gorsuch, Clarence and Roberts' statements.
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He is. The liberal judges are already convinced that redistricting needs to be fixed, so they need one more vote. This case was specifically crafted for Kennedy, who specifically asked for a formula. Now it's just a matter if he thinks what he's been presented with will fix the issue.
 
B

beau_beaumont

Member
The only math scotus knows ho to do is count to five, but let’s not pretend this isn’t a problem for most judges across the country. Many also lack proficiency in science as well.
 
C

Cagey

Banned
Kill3r7 said:
Disagree. The clerks basically write the opinion prior to oral arguments.

Also, no one in their right mind is turning down a SCOTUS clerkship to jumpstart their career in patent prosecution or litigation. It is arguably of the most prestigious positions a recent law grad can land.
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Clerks aren't writing the opinions of their justices, particularly in the highest profile or most legally significant cases, free of any input from their justice. That's why the base problem is a justice having a eye-in-the-sky level aversion to data-driven analysis, not the justice's individual ability to get neck-deep into the analysis.

On the second part, I was making a joke referencing how law grads with engineering degrees get pushed towards patent work.

I'd think a SCOTUS clerkship is inarguably the most prestigious position a young graduate can land, but I've never been offered a first-year position at Wachtell Lipton, so what do I know.
 
B

Brawndo Addict

Banned
The mathematical or scientific illiteracy of lawyers is one thing, and that's something that can and should be corrected. Plenty of industries and businesses have had their workforce successfully adapt to and embrace the realities of a big-data world and the legal profession will be no different. Lawyers and paralegals with mathematical/scientific backgrounds will become increasingly valuable and necessary and that will work its way down the supply chain to law schools (see patent lawyers).

The more fundamental problem in the background of all of this is that the legal system itself is grounded in a philosophical paradigm that is arguably opposed to standard statistical conceptions of probabilities and likelihoods (either bayesian or frequentist). When we say something as simple as "more likely than not", that means something completely different in statistics than it does in the justice system from both a technical and philosophical perspective.

What I'm trying to say is that even if you have lawyers who are mathematically fluent, the majority of our legal jurisprudence operates on frameworks that don't translate to statistics. For an explicit example of this, what does it mean from a statistical perspective to have a presumption of innocence; does that mean our prior probability of guilt has to be 0%? From a statistical perspective, that would mean no amount of countervailing evidence could change your initial position. But if you concede to the statistical problem by assigning the prior probability to be non-zero, then do you really have a presumption of innocence or just a likelihood of innocence?

The legal system is chasing after ideals that don't apply to science. It's sort of like asking "Was this storm caused by global warming, yes or no?". Science doesn't offer an explicit yes or no to those types of questions but that's what the legal system was designed to handle. The system doesn't operate on averages or aggregations, it operates on an individualized level that is becoming increasingly out of step with the approach of the modern world. How we deal with this fundamental discrepancy in the future is something I do not know.
 
N

nynt9

Member
Brawndo Addict said:
The mathematical or scientific illiteracy of lawyers is one thing, and that's something that can and should be corrected. Plenty of industries and businesses have had their workforce successfully adapt to and embrace the realities of a big-data world and the legal profession will be no different. Lawyers and paralegals with mathematical/scientific backgrounds will become increasingly valuable and necessary and that will work its way down the supply chain to law schools (see patent lawyers).

The more fundamental problem in the background of all of this is that the legal system itself is grounded in a philosophical paradigm that is arguably opposed to standard statistical conceptions of probabilities and likelihoods (either bayesian or frequentist). When we say something as simple as "more likely than not", that means something completely different in statistics than it does in the justice system from both a technical and philosophical perspective.

What I'm trying to say is that even if you have lawyers who are mathematically fluent, the majority of our legal jurisprudence operates on frameworks that don't translate to statistics. For an explicit example of this, what does it mean from a statistical perspective to have a presumption of innocence; does that mean our prior probability of guilt has to be 0%? From a statistical perspective, that would mean no amount of countervailing evidence could change your initial position. But if you concede to the statistical problem by assigning the prior probability to be non-zero, then do you really have a presumption of innocence or just a likelihood of innocence?

The legal system is chasing after ideals that don't apply to science. It's sort of like asking "Was this storm caused by global warming, yes or no?". Science doesn't offer an explicit yes or no to those types of questions but that's what the legal system was designed to handle. The system doesn't operate on averages or aggregations, it operates on an individualized level that is becoming increasingly out of step with the approach of the modern world. How we deal with this fundamental discrepancy in the future is something I do not know.
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I think there's a reasonable middle point between very specific statistician language and lay terms. The problem is that right now we're all the way to the latter to the point that any empirical information is shunned. That's not acceptable.
 
T

tuxfool

Banned
Brawndo Addict said:
The legal system is chasing after ideals that don't apply to science. It's sort of like asking "Was this storm caused by global warming, yes or no?". Science doesn't offer an explicit yes or no to those types of questions but that's what the legal system was designed to handle. The system doesn't operate on averages or aggregations, it operates on an individualized level that is becoming increasingly out of step with the approach of the modern world. How we deal with this fundamental discrepancy in the future is something I do not know.
Click to expand...

Science and more specifically statistical maths *can* offer a yes/no answer. What it doesn't offer is an absolute assertion applicable for all of time, which the law does, which is why you get such crappy laws in regard to modern technical fields. Those judges that actually challenge interpretations of previously held legal assertions are called "activist" judges, a term which is often used in a negative context.
 
S

Shadybiz

Member
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.
Click to expand...

Oh great, so basically "I can't do math, lol" and "The public is too dumb to comprehend this anyway," in one shot.
 
H

hydragonwarrior

Member
I understand the issue without having to resort to much math. Why are they going towards math as evidence? If they don't ask for it, there has to be an easier to way (graphically, even) to show that "Hey don't split your voter blocs into advantageous areas"
 
E

emag

Member
Funyarinpa said:
You have a supreme court justice who calls a mathematical approach "baloney".

Wow.
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Better than a Supreme Court Justice who writes, "[black men] had no rights which the white man was bound to respect" or those that ruled against Korematsu, though, right?
 
K

Kill3r7

Member
hydragonwarrior said:
I understand the issue without having to resort to much math. Why are they going towards math as evidence? If they don't ask for it, there has to be an easier to way (graphically, even) to show that "Hey don't split your voter blocs into advantageous areas"
Click to expand...

Because Kennedy asked for it.
 
B

Balphon

Member
The entire Court having an identical educational and professional background is certainly a problem and has been for awhile.

This is just one consequence.
 
A

AbortedWalrusFetus

Member
hydragonwarrior said:
I understand the issue without having to resort to much math. Why are they going towards math as evidence? If they don't ask for it, there has to be an easier to way (graphically, even) to show that "Hey don't split your voter blocs into advantageous areas"
Click to expand...

It's not about understanding the issue, the case is essentially about whether or not this new metric can be applied to determine a gerrymander happened. The courts recognize gerrymandering already, but have no test they believe can measure it. This case is about a methodology for that test
 
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