BY HANK REICHMAN
It has become something of a truism that the Trump administration and the Republican Party more generally have been dismissive of and even hostile to the findings and methods of scientific research. The Union of Concerned Scientists this summer released an exhaustive report, Sidelining Science Since Day One, that documents how in just its first six months “the Trump presidency has shown a clear pattern of actions that threaten public health and safety by eroding the role of science in policy.” The administration’s assault on science both reflects and encourages a disturbing level of scientific illiteracy and innumeracy among broad sections of the public, often joined with an arrogant anti-intellectual contempt for scientific knowledge and even for learning itself, which has deeply troubling implications for higher education.
One might hope that the courts would be relatively immune to this baleful trend, given their emphasis on law, evidence, and reasoned argument. However, on Monday, just one day after John Oliver aired a splendid report on the abuse of “junk” forensic science in the courts (previously, as I reported on this blog, major scientific associations had denounced a Justice Department decision to disband the independent National Commission on Forensic Science), members of the U.S. Supreme Court demonstrated their own shocking ignorance of and contempt for science — in this case social science — and basic statistical methods. Hearing arguments in the case of Gill v Whitford, which concerns legislative maps in Wisconsin precision-drawn to ensure Republican dominance in legislative and congressional contests, the justices appeared in agreement that partisan gerrymandering is at minimum “distasteful,” to use Justice Samuel Alito’s term. The central question to be decided, however, was whether courts are equipped to police the process by which states draw their maps, and if so, how exactly they should determine when a plan is excessively partisan.
And that is where the social science comes in. “Social science tools now allow courts to diagnose partisan gerrymanders with accuracy and precision”, an amicus brief from Keith Gaddie and Bernard Grofman, political scientists who have helped engineer district maps, declared. (Ironically, Gaddie worked with Wisconsin Republicans to create the partisan map before the justices, an act he seems to regret.)
State-of-the-art analytical tools now capture all the relevant information for detecting and precisely measuring the disparate effect of partisan gerrymanders. In particular, the various methods of measuring asymmetry are fundamentally complementary. Some are more complex in their calculations than others. But they all measure the same thing: the magnitude of the disparate burden (if any) that a challenged map imposes on a political party and its supporters. And they all converge in conclusions in the face of an egregious partisan gerrymander. In the rare circumstance that one method is unsuitable to a particular context, another can be used instead.
While the methodology will continue to improve, future advances are likely to be incremental only—the equivalent of adding a further decimal point to an already precise figure—and will not materially alter the calculus. Moreover, experts can clearly and consistently apply existing statistical tools to assess whether each element—partisan asymmetry, lack of responsiveness, and causation—is met. Once the Court adopts a legal standard for justiciable partisan gerrymandering claims, it will be relatively straightforward for competent experts to provide their assessments of whether that standard is met in a given case.
The Democratic plaintiffs challenging the map argued that the key concept is “asymmetry,” which may be calculated in at least three ways: the “median-mean” and “partisan bias” measures and the “efficiency gap,” a metric developed by Eric McGhee, a political scientist, and Nicholas Stephanopoulos, a law professor, in a law review article that is integral to the case, “Partisan Gerrymandering and the Efficiency Gap.”
In a stunning display of anti-intellectual arrogance, however, Chief Justice John Roberts blithely dismissed the research, expressing fear that “we will have to decide in every case whether the Democrats win or the Republicans win” based on “sociological gobbledygook.” Justice Alito also denigrated the scholarship, suggesting that one paper by a “young researcher” is no basis for courts to meddle in elections, despite the fact that there is a developing consensus in a quite extensive literature on the topic. But taking the cake was the recipient of stolen property, aka Trump-appointed Justice Neil Gorsuch, who preposterously claimed that the search for a standard for too much partisan gerrymandering “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,” he announced. “And so what’s this court supposed to do, a pinch of this, a pinch of that?”
Apparently that’s the kind of absurd metaphor that may pass for “reasoned argument” on our highest court, at least when it comes to social scientific research. And with respect to “gobbledygook,” Charles Fried, U.S. Solicitor General under President Reagan and professor at Harvard Law School, who co-authored an amicus brief in support of the plaintiffs and signed by prominent anti-gerrymandering Republicans, including John McCain, Bob Dole, John Kasich, and Arnold Schwarzenegger, had enough. Writing to the New York Times, he said:
At oral argument, the supremely intelligent chief justice said that proving and remedying gerrymandering might require the judiciary to parse “sociological gobbledygook.”
Sorry, but that’s no excuse for not doing your job and saving our democracy.
Every day, federal judges must pass on exquisitely intricate arguments in patent cases and on the admissibility of expert testimony in a wide variety of technical fields. Indeed, the social science here is not that difficult.
An outside lecturer came to my grandson’s high school and explained it to the complete comprehension of a class of bright 15-year-olds.
Not that difficult for 15-year-olds, perhaps, but some justices apparently know better than to trust anything other than their own prejudices and overly inflated egos. Or maybe just their political loyalties.
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