Nate Silver, statistician to the stars, takes on the Supreme Court, but I wonder if he is an authority in the etiquette of the Supremes:
In oral arguments before the Supreme Court last week, Chief Justice John G. Roberts Jr. introduced a statistical claim that he took to imply that an important provision of the Voting Rights Act has become outmoded.
Section 5 of the Voting Rights Act, which is being challenged by Shelby County, Ala., in the case before the court, requires that certain states, counties and townships with a history of racial discrimination get approval (or “pre-clearance”) from the Department of Justice before making changes to their voting laws. But Chief Justice Roberts said that Mississippi, which is covered by Section 5, has the best ratio of African-American to white turnout, while Massachusetts, which is not covered, has the worst, he said.
Chief Justice Roberts’s statistics appear to come from data compiled in 2004 by the Census Bureau, which polls Americans about their voting behavior as part of its Current Population Survey.
Well, Chief Justice Roberts numbers come from the dissent to the case on appeal (p. 77 and following). On to the punchline:
As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts.
Ahh, I don't think many lawyers take it upon themselves to start questioning the Supremes. My understanding of the division of labor is that the Justices ask the questions and the attorneys answer.
And here in America (unlike, for example, France) we have an adversarial judicial system. The attorneys for both sides are expected to be familiar with the arguments and potential rebuttals. Roberts misapplied some statistics? Roberts raised a point made in the dissent and the attorney had no ready response. That is hardly Roberts' fault if the attorney is poorly prepared.
Mr. Silver closes with an interesting point that, unfortunately, totally ignores the context of the Roberts exchange:
Most of you will spot the logical fallacy in the following claim:
No aircraft departing from a United States airport has been hijacked since the Sept. 11 attacks, when stricter security standards were implemented. Therefore, the stricter security is unnecessary.
As much as I might want to be sympathetic to this claim (I fly a lot and am wary of the “security theater” at American airports), it ought not to be very convincing as a logical proposition.
Similarly, he goes on to explain, the currently favorable turnout figures for Mississippi might simply reflect the efficacy of the Voting Right Act procedures.
Well, sure. But Justice Scalia had hammered that very point immediately before Roberts chimed in with his question about relative turnout (transcript, p. 30 and following):
GENERAL VERRILLI: But I think -- but, Mr. Chief Justice, that is why I made the point a minute ago that the key way in which Section 5 -- it has to be the case, everyone agrees, that the significant progress that we've made is principally because of Section 5 of the Voting Rights Act. And it has always been true that only a tiny fraction of submissions result in objections.
JUSTICE SCALIA: That will always be true forever into the future. You could always say, oh, there has been improvement, but the only reason there has been improvement are these extraordinary procedures that deny the States sovereign powers, which the Constitution preserves to them. So, since the only reason it's improved is because of these procedures, we must continue those procedures in perpetuity.
And after a half a page of brief back and forth, Roberts is the next Justice to speak:
CHIEF JUSTICE ROBERTS: Just to get the - do you know which State has the worst ratio of white voter turnout to African American voter turnout?
GENERAL VERRILLI: I do not.
CHIEF JUSTICE ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.
GENERAL VERRILLI: Yes, Mr. Chief Justice. But Congress recognized that expressly in the findings when it reauthorized the act in 2006. It said that the first generation problems had been largely dealt with, but there persisted significant -
CHIEF JUSTICE ROBERTS: Which State has the greatest disparity in registration between white and African American?
GENERAL VERRILLI: I do not know that.
CHIEF JUSTICE ROBERTS: Massachusetts. Third is Mississippi, where again the African American registration rate is higher than the white registration
GENERAL VERRILLI: But when Congress -- the choice Congress faced when it -- Congress wasn't writing on a blank slate in 2006, Mr. Chief Justice. It faced a choice. And the choice was whether the conditions were such that it could confidently conclude that this deterrence and this constraint was no longer needed, and in view of the record of continuing need and in view of that history, which we acknowledge is not sufficient on its own to justify reenactment, but it's certainly relevant to the judgment Congress made because it justifies Congress having made a cautious choice in 2006 to keep the constraint and to keep the deterrence in place.
This 'Congress must have had something in mind when they passed it' argument would probably not convince libs if the topic were the Defense of Marriage Act.
EX POST VINDICATION: Orin Kerr at the Volokh Conspiracy quotes this exchange during the gay marriage arguments:
JUSTICE SCALIA: I’m curious, when - when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?
MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.
JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? . . .