
The Supreme Court Is Allergic to Math - angpappas
https://fivethirtyeight.com/features/the-supreme-court-is-allergic-to-math/
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credit_guy
I'm a numbers guy, but I believe the court's skepticism around statistics is
warranted. Many concepts in statistics appear to be simple, but have lots of
subtleties. There are lots of hidden assumptions in many statistical numbers,
and it's not rare to see profesionals making mistakes.

If the court has to decide in the case of a bridge collapse, there will
probably be a good amount of advanced mathematical modelling presented as
evidence, and the justices will ask for some expert advice, they would't try
to grok the math themselves. Similarly with statistics, it would be very
prudent for them to defer to the experts, and even more so, considering that
statistics appears deceivingly simple on the surface, while it's so easy to
get it wrong.

~~~
zardo
This isn't a good argument for ignoring statistical evidence though, it's a
good argument for augmenting the judiciary with a technical/legal expert
staff.

Expert witnesses don't really help the situation, as both sides will produce
experts that make technical arguments.

~~~
credit_guy
Excellent suggestion. The article actually mentions this idea "McGhee, who
helped develop the efficiency gap measure, wondered if the court should hire a
trusted staff of social scientists to help the justices parse empirical
arguments. " I think it's a very good idea.

As for my original argument, I didn't advocate for the court to ignore
statistical evidence. I think courts in general should weigh all the evidence.
They just should exercise caution with statistical arguments, it's only too
easy to get it wrong.

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vannevar
The real punchline to this article occurs near the end:

"But maybe this allergy to statistical evidence is really a smoke screen — a
convenient way to make a decision based on ideology while couching it in terms
of practicality."

As a data scientist and former attorney, I can tell you that these people
understand the math. This isn't about understanding, it's about giving up
power. Judges do not want the law to act mechanically on important issues---if
it did, who would need them? They want subjective terms in the law, subject to
interpretation, so that they have some freedom to change outcomes that seem
unjust to them. They want that power. And if they start ceding it to
algorithms, their role will be diminished.

~~~
peoplewindow
It seems more like a structural flaw in how the law is written. Arguably if a
case makes it to the SC then it means the law was ambiguous to start with. For
something like boundary allocations an algorithm could have been written into
the law directly by lawmakers. Why does this even end up in front of the
Supremes?

~~~
vannevar
Switching to a fair districting algorithm will never benefit the party in
power, since by definition the existing law put them there. The only change
they're going to want to make is in the direction of further bias.

~~~
peoplewindow
The UK is successfully going through a re-districting process at the moment.
So I don't think it's impossible.

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eb0la
Not just the US. Supreme Court.

I believe most judges and jurist in the world are allergic to Math just
because they had to choose between a Science or Humanities curriculum as if it
were opposite one of each other.

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xoa
This is a hugely important issue for not just any specific area but American
society in general. One word I don't see come up in Mr. Roeder's otherwise
interesting article directly is "emergent", as in "emergent effects", but I
believe that is at the core of many debates around issues like
privacy/surveillance. Certain problems only show up with large enough numbers,
ie, they exhibit non-linear scaling effects despite looking linear at small
scales, and courts cannot simply draw a straight line and get an accurate
reading. Privacy and security are ultimately based on economics, so there are
cases where empiricism is unavoidable.

To take a single example, the "expectation of privacy in public": historically
it's been overall accepted (and seems like "common sense") that an individual
fully out in public has minimal expectation of privacy. Anyone randomly going
by might see them. And in turn it makes sense that someone (including law
enforcement) could review any single point source (like a security camera)
without issue. However, as a practical matter there has still historical been
a sort of emergent privacy due to resource limits. Nobody can track every
single person, and dedicating the resources to surveil any single
target/organization imposed natural limitations. Additionally, courts
exercised some control via warrants for certain levels of surveillance,
including new technology. For example, in Torrey Dale Grady v. North Carolina
a few years ago the SCOTUS ruled putting a tracking device on a person or
vehicle is a search under the 4th Amendment.

But in a world of ubiquitous recording and sufficient storage and computing
resources, a lot of point sources can become effectively the same thing as
putting trackers on everyone despite each being within existing jurisprudence
individually. The nature of "voluntarily" giving up data gets called into
question. Combined with other data or alone, where people go, who they meet,
and at what times can be used to draw statistical inferences about a
tremendous amount of information any reasonable person would believe private.
But it's only the number of data points that have changed and the resource
feasibility for storing/utilizing that data, not their individual nature.
There is no whizbang new tech needed, just "more", "cheaper", and "better
math".

Are American courts ready for those sorts of questions? What about
apportioning responsibility for future externalities whose effects only show
up statistically? It'll be a big deal in terms of restraining the new powers
major entities are acquiring.

~~~
wahern

      > Are American courts ready for those sorts of questions? 
    

In short, no, and they never will be. Courts aren't supposed to be in the
business of solving social issues. Their fundamental function is to adjudicate
disputes where there has been concrete, identifiable, and remediable harm to
one individual by another individual.

Remember that in a gerrymandering case the fundamental question is whether a
_specific_ plaintiff has been _specifically_ harmed by gerrymandering. The
best statistical model in the world isn't going to answer that question; at
best it gets you halfway there.

The executive and legislative branches are supposed to be the organs of
government that grapple with these issues; the ones that enlist legions of
bureaucrats to aggregate data and decide on the best aggregate policies. The
real issue is that we're asking too much of our courts because the other two
branches of our government--especially the legislative branch--has become
ineffective and derelict. And, yes, that's party because of gerrymandering.
It's quite a dilemma, but that still doesn't mean that the courts should jump
into the fray.

I'm skeptical of conservative arguments that courts should stay completely out
of gerrymandering disputes. It's obviously self-serving, not to mention
hypocritical in light of the fact that all the conservative justices wanted to
strike-down non-partisan redistricting commissions as unconstitutional. But as
a clear legal rule that approach has significant benefits. Among other things,
it would force communities to return to the ballot box rather than resort to
the courthouse.

