Supreme Court Errors Aren’t Hard to Find
propublica.org
propublica.org
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."
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.
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.
"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.
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.
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.
>The Supreme Court interpreted the Constitution's Commerce Clause under Article 1 Section 8, which permits the United States Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The Court decided that Filburn's wheat-growing activities reduced the amount of wheat he would buy for animal feed on the open market, which is traded nationally (interstate), and is therefore within the scope of the Commerce Clause. Although Filburn's relatively small amount of production of more wheat than he was allotted would not affect interstate commerce itself, the cumulative actions of thousands of other farmers just like Filburn would certainly become substantial. Therefore, according to the court, Filburn's production could be regulated by the federal government.
This was effectively a revolution. The form and breadth of the federal government before and after this and other decisions that made their power nearly universal is as different as the federal government under the articles of confederation versus the constitutional federal government.
The original intention was to make a federal government of limited powers. Between the incredible expansions of the commerce clause and the necessary and proper clause to effectively cover every major aspect of daily life, and the supreme court decision that claimed that the 10th amendment was effectively a "noop", we've reached a system where the federal government has almost universal control. Then they finished up the final power grab by using the power of the purse by taxing more than they need to run federal programs and then only returning money to the states based on compliance with the rest of their agenda.
The dream that was a federal government with limited powers died along the way in the United States. Their power is almost universal today, and that was not the stated or written intention from the start.
So, by any reasonable definition this was commercial wheat production. Now, if he was farming wheat because he liked how wheat fields looked then never used or harvested that wheat for anything you might have a point.
PS: It's a common standpoint that you can't get around laws by this kind of nominal rule bending. AKA, we are a non profit, so the commerce clause must not apply as we are non commercial enterprise.
Actually this seems perfectly sensible to me. Absent Wickard, we might expect that the national government can regulate the sale of the computer across state lines, but not the installation of the CPU within a state.
However, I do think from a pure practical standpoint, letting companies side step regulations by their structure is a bad idea. Aka. If every pig farmer now ends up a a wheat farmer on the side that's a bad outcome.
For a modern example, if 1 million people in Florida install solar panels on their roofs it's going to defacto alter the wholesale electricity market.
Now, if that impact is enough to justify regulation is another issue, but the impact is clearly there.
Again, the regulation was he could use up to 11.1 acres and he did around twice that which is significant.
It's been clarified but not overturned.
To expand my point for clarity:
In their own words commercial Consumption and commercial Production are both commerce. Remember, if he had used less than 11.1 acres there would have been no problem so this was significant production and significant consumption.
"Whether the subject of the regulation in question was 'production', 'consumption', or 'marketing' is, therefore, not material for purposes of deciding the question of federal power before us...[b]ut even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'"[4]
In other words, the fact he was Producing wheat or just Using wheat does not side step the issue. He was both a consumer and producer of wheat and thus clearly impacting the wheat market. That final bit just means picking if was a direct or indirect impact does not matter.
Now, I and others may not agree with the interpretation. But, it's not so crazy as to be a clear mistake.
Which is why I said farming wheat in such a way that it is separated from the market aka not harvesting it, would have been a useful but different argument.
"Among" has a broader meaning than "between," and "among" is the word the Constitution uses.
The criticism you are making is about how the Court interpreted the law, which is a fundamentally different sort of error.
There are multiple theories of constitutional interpretation, and there is no broad consensus among Supreme Court Justices for which to use . Only some of them involve trying to discern the authors' intent.
In Wickard, I can't find any reference to the intent of the authors of the Constitution, so I don't believe this is a case of a factual error.
Note that I'm not disagreeing with your conclusion.
http://www.hollywoodreporter.com/thr-esq/harvey-weinstein-co...
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.
Nothing like that will ever happen again, in part for the reasons to which you refer.
Thomas Jefferson was on board with the notion: "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind."
https://www.nps.gov/thje/learn/photosmultimedia/quotations.h...
They wrote a social contract that's obviously ripe for manipulation and abuse by the current powers that be. I see no reason to try and read the minds of dead men and opine for the past. Especially since I'm pretty sure they all wrote about fears to the effect of future America deifying them when they are but humble, fallible, humans.
Humans quit caring about the past because it's not relevant in future reality where things are much different. The inputs are all different.
Goodhart's law, man.
But by all means, keep believing in your religion that you appear to believe is failing you. I'm sure your support will make it better.
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.
The majority opinion stated:
> In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.
In fact, "trench shotguns" were issued in WW1 and at the time of the ruling, which standard barrel lengths of ~20" - and were often shortened further in the field. Further, shotguns with barrels of <18" were standard issue elsewhere in the world and were used by US cavalry throughout the Civil War and into the Indian Wars in the latter part of the 19th Century.
It's also worth noting that the Constitution implicitly recognizes the civilian ownership of ordnance as well, through Article 1 Section 8: "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water" granting letters of marque wouldn't make sense if individuals did not possess suitably armed ships.
Citation: Nearly all the other subconversations going on already in this story's discussion.
This is a classic FUD tactic.
Hypotheses are allowed to be biased as long as they’re tested before becoming anything more.
The evidence (however preliminary) was the fact that nearly all of Pro Publica’s cited rulings were in favor of conservatives.
I'd still call that opinion, not evidence. A conservative might say those rulings were in favor of reason, not partisan. See, an alternate opinion.
So are you, this whole thread is you quibbling about words.
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.
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.
>The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states.
>In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.
This cannot be viewed as acceptable. This cannot be viewed as, 'Oh, well, they would have found a reason to rule that way anyway.' SC judges are not your (general 'your') drunk uncle, who has a right to be a buffoon unless he's hurting someone. When SC judges are buffoons, they will absolutely cause damage.
That is true.
I've come to believe that the ultimate role of the Supreme Court (and not of the lower courts) is the prevention of civil war. The role is essentially that of emitting a ruling that will keep the country from splitting so badly that factions square off and start shooting at each other. They goofed that up rather badly once. Their role is to provide a non-violent venue to debate our deepest differences, and forge a consenus of acceptable compromise. If they fail, we fracture.
The role of the lower courts is to apply S.C. decisions uniformly.
That said, I get rather annoyed at the "living constitution" crowd that wants to use the S.C. to get us all to collectively act like the constitution says something different than the plain words on the paper. If you don't like what it says, amend it for heaven's sake. Even the authors put forth a package of amendments before the ink was barely dry on the original. The way to change the constitution is to amend it, not re-re-re-interpret it.
What happens when the words of the constitution apply to 95% of a given situation? 85%? 10%? Is it better to amend the constitution every time there's an edge case?
A lot of time you can just put a catchall textarea to cover all the rest of your input edge cases. For the law, that textarea is where all the action happens.
Many people make the argument that that's not a bug, its an intentional feature. As in, the Constitution was left open to interpretation on purpose.
You can also make the argument that even if it was an intentional feature, we've taken it too far.
Do you think they underestimated the difficult of amending the Constitution using the process they suggested? Or maybe they didn't foresee having SCOTUS be the ultimate arbiters of the Constitution?
That is itself an interpretation; those words aren't nearly as plain as you're pretending they are, they're intentionally vague, that's the only reason the constitution is so short. Legalese developed precisely because it's not at all simple to write something that's plain, clear, and not open to interpretation.
> 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.
https://play.radiopublic.com/radiolab-presents-more-perfect-...
Law is a process.
"A binary that performs as desired is an outcome. Coding and compilation is a process."
- Justice Robert H. Jackson