Oct 17, 2017

Supreme Court's Aversion to Social Science Is Perverse

Gill v Whitford Gerrymandering—An Easy Case That Would Destroy Republican Rule

Earlier this month at oral argument of the likely precedent-setting Wisconsin gerrymandering case, Republican justices displayed an obtuse mind-set revealing an incapacity to consider social scientific findings in determining whether a statute is unconstitutional, (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Writes Oliver Roeder this morning at Five-thirty-eight.com:

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?

It's not that rightwing justices like Thomas, Gorsuch, Roberts and Alito cannot comprehend empirical investigation. It is that they do not care to when they are presented findings that point to a remedy helping disfavored segments of the population against whom these legal politicians have been appointed to work.

Without a United States Supreme Court ruling protecting Americans from the Republican Party's gerrymandering drawn after computer simulation after simulation to effectively take citizens out of the loop in democratic elections, Republican rule over citizens is all-but-guaranteed in the future.

In response to the early October oral argument of Gill v. Whitofrd, Nicholas Stephanopoulos, professor at the University of Chicago Law School specializing in election law, penned a column in Slate Magazine spelling out the criteria identifying an unconstitutional gerrymanders. (See also Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case.]

Writes Stephanopoulos:

As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a 'steak rub.' That is, it should not be imprecise and opaque in its makeup: 'I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.' In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:
  1. Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.

  2. Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.

  3. Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.

  4. Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that satisfy the state’s legitimate redistricting criteria. The challenged plan’s asymmetry is unjustified only if it exceeds that of most of the simulated maps.
Under this approach, there would be some easy cases, like the Wisconsin State Assembly plan at issue in Whitford. This plan’s authors admitted its pro-Republican intent. Its partisan asymmetry is worse than that of any map nationwide between 1972 and 2010. Its asymmetry would persist even if there was a massive Democratic wave. And its asymmetry is larger than that of any simulated assembly map. Conversely, it’s clear a plan would be upheld if it was designed through a bipartisan or nonpartisan process, if its asymmetry was historically small, if its asymmetry would disappear under slightly different electoral conditions, or if it was no more asymmetric than most simulated maps.
In playing dumb, social dominators like Gorsuch, Alito, Roberts and Thomas continue a sordid tradition in federal litigation of liberty claims the last 65 years. Unequal public schools? Public accommodation of ethnic minorities? Housing discrimination? Equality of law and processes? Voting? What? Do we litigate every public functioning and process if someone makes a liberty claim?

It may not seem like it at the moment, but Republican rule is imperiled as at any point in post-World War II history, and Gill v. Whitford is one of the last chances Republicans have to hang onto to power for 50 years against the will of the population.

One must hate the fact that Anthony Kennedy has become the pivotal vote again in this critical case for Americans when this man is mired in mediocrity.

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