
Supreme Court Errors Aren’t Hard to Find - lnguyen
https://www.propublica.org/article/supreme-court-errors-are-not-hard-to-find
======
olympus
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
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.

------
rayiner
> 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
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.

------
Overtonwindow
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
"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.

------
jgowdy
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.

~~~
Retric
Uhh, that's like saying a CPU is not sold if intel includes it in a computer
that was sold. Aka, this was large scale production to feed animals that where
then consumed.

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.

~~~
jMyles
> Uhh, that's like saying a CPU is not sold if intel includes it in a computer
> that was sold. Aka, this was large scale production to feed animals that
> where then sold.

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.

~~~
Retric
I agree a different rulings could have been reasonable which is why the court
took the case. My point was simply it was not so unreasonable as to clearly be
a mistake.

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.

------
olympus
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.

~~~
Sangermaine
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.

~~~
LyndsySimon
I offer no comment the GP, but an example springs to mind for where where a
"liberal" ruling was based on a factual error - US v Miller (1939)

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.

~~~
tlb
The opinion states that there was an absence of evidence (ie, evidence
presented in court, not evidence that might exist somewhere in the world.)
It's the job of the litigants to produce the evidence, not the justices.

~~~
LyndsySimon
There were no litigants in Miller - the defendants didn't respond to
notification and their attorney didn't attend the proceedings in DC. In fact,
it's quite possible that they were dead.

------
ajross
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.

~~~
dbcurtis
> Courts are political entities and always will be.

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.

~~~
vqc
I think the problem might be that plain words are still really spongy? A
simple statement like "no vehicles allowed on public grass" isn't actually all
that simple.

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.

~~~
astura
>I think the problem might be that plain words are still really spongy?

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.

~~~
vqc
The founders did leave a mechanism for amending the constitution. It is very
difficult to use.

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?

------
binarynate
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-...](https://play.radiopublic.com/radiolab-presents-more-perfect-
yWwDL6/ep/s1!9ede2f1532dae5a2cb3cb127383f2c7ee7521972)

------
bmh_ca
Justice is an outcome.

Law is a process.

~~~
irrational
What does that mean?

~~~
tlholaday
> What does that mean?

"A binary that performs as desired is an outcome. Coding and compilation is a
process."

~~~
bmh_ca
Nailed it.

------
pattisapu
"We are not final because we are infallible, but we are infallible only
because we are final."

\- Justice Robert H. Jackson

