Wednesday, August 1, 2018

This Not Only Dishonorable Court But Incompetent As Well Is A Danger To Democracy

Bush v Gore should have been considered the final straw that broke business as usual in the corrupt, partisan Supreme Court, it was one of the most outrageous usurpations of power by a clearly partisan 5 member majority of the court, one of whom, Sandra Day O'Connor,  was heard to express dismay when the election was called for Gore because it was known she wanted to retire and she wanted a fellow Republican to name her successor.  The result was the presidency of George W. Bush who was not only incompetent, running an administration that ignored warnings of an attack which came, 9-11, but whose administration, having gone to war against Afghanistan, lied to promote the invasion of Iraq, one of the most criminal and disastrous wars the United States has ever been involved in, perhaps the worst foreign policy decision in the history of the United States up to that time.

The court, reinforced by the Bush II members, Roberts and Alito, issued further cases such as the infamous Citizens United which paved the way for the further corruption of our country for political purposes, the warnings about that, including the Court having opened the way for corruption from foreign countries having a major and decisive hand in ratfucking our elections.   Their judicial hands are all over the Putin crime family working with American billionaires to install Trump.

The Supreme Court is in a spiral of partisan corruption and incompetence mixed with the arrogance that has been typical of so many of the members of the Court over the centuries.  It's a bad combination, especially in the branch of the government most corrupted by being insulated from democracy.  I'm going to give you an example from the Five-Thirty-Eight blog, not one of their speculative pieces based on polling, one of their frequently very good pieces that aren't speculative.

The piece goes over the mathematical incompetence on the Court when an issue they have chosen to review hinges on mathematical issues, how they sometimes fail to understand the math, sometimes misinterpret it, sometimes, in the way of arrogant lawyers who are incompetent about an issue, by arrogantly ignoring the math, figuring they can divine it by some kind of High Court haruspexy, judicial entrail reading.  And it wasn't just the Republican-fascists on the court.

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?  

The metric at the heart of the Wisconsin case is called the efficiency gap. To calculate it, you take the difference between each party’s “wasted” votes — votes for losing candidates and votes for winning candidates beyond what the candidate needed to win — and divide that by the total number of votes cast. It’s mathematical, yes, but quite simple, and aims to measure the extent of partisan gerrymandering.

Four of the eight justices who regularly speak during oral arguments1 voiced anxiety about using calculations to answer questions about bias and partisanship. Some said the math was unwieldy, complicated, and newfangled. One justice called it “baloney” and argued that the difficulty the public would have in understanding the test would ultimately erode the legitimacy of the court.

Justice Neil Gorsuch balked at the multifaceted empirical approach that the Democratic team bringing the suit is proposing be used to calculate when partisan gerrymandering has gone too far, comparing the metric to a secret recipe: “It reminds me a little bit of my steak rub. I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each. And so what’s this court supposed to do? A pinch of this, a pinch of that?”

Justice Stephen Breyer said, “I think the hard issue in this case is are there standards manageable by a court, not by some group of social science political ex … you know, computer experts? I understand that, and I am quite sympathetic to that.”

And Chief Justice John Roberts, most of all, dismissed the modern attempts to quantify partisan gerrymandering: “It may be simply my educational background, but I can only describe it as sociological gobbledygook.” This was tough talk — justices had only uttered the g-word a few times before in the court’s 230-year history.2 Keep in mind that Roberts is a man with two degrees from Harvard and that this case isn’t really about sociology. (Although he did earn a rebuke from the American Sociological Association for his comments.) Roberts later added, “Predicting on the basis of the statistics that are before us has been a very hazardous enterprise.” FiveThirtyEight will apparently not be arguing any cases before the Supreme Court anytime soon.

The justices, apparently, didn't read the mathematical issues and decide they didn't agree with the conclusions, apparently they found the math too hard and they chose to ignore it on the theory that handling the issues according to the lore of the law could come out with some kind of more predictably secure decision on the basis of legal lore.  Considering the willingness of the Roberts Court to push aside even long standing precedent with a 5/4, partisan majority, something which is expected to become worse when the Republicans rubber stamp the replacement for Kennedy, asserting the reliability of such methods is contradicted by the very actions of the court.  Oh, yes, and the case, the court decided not to deal with the math, throwing the case out on the basis of no-standing by the plaintiffs.  The part that a phobia for math played in that is unknowable but as someone who has tutored in math, I know the tactic.

Obviously, we need a court with justices who can do the math.  We don't have one.  I wouldn't be upset if, as one lawyer-blogger proposed a while back, that the next time a Democrat had a Democratic Senate that they do what Franklin Roosevelt did when he was faced with a court as partisan and arrogant as the ones we have now, pack the court.   I would use the issue of mathematical and technical incompetence of many, if not most of the members of the court who can't, possibly understand the issues before them as one of the reasons justifying the decision.  Unlike the powers the court created for itself, there is nothing in the Constitution that would make such an act by the president of questionable legitimacy.  The whining of justices about the workload they face is a justification for expanding the court which could have panels of nine justices hear cases, though the mathematically incompetent shouldn't ever be allowed to hear issues that hinge on mathematical questions.

The Supreme Court as it is now is an anachronistic early 19th century institution that obtained much of its role extra-Constitutionally, through their own fiat.  The doctrine that the Court can throw out legislation on the basis of it being unconstitutional, the reason that we mere plebs who paid attention in American History sort of know that Marbury v Madison is a thing, appears nowhere in the Constitution.   That self-assumed power of the Court might have been tolerable in a court that knew the legitimacy of the court could be brought into question by the outrageous further usurpation of power.   Under the Rehnquist and now Roberts Courts, we've reached that point.  As I said, it should have been considered when Republicans who had the lack of honor, of honesty that the Bush v Gore majority proved they had should have been the majority that was the last straw.  If liberals hadn't been so gulled into falling for an unjustifiable and unrealistic cult of Court sanctimony, something they learned from history as phony as it comes, they would have started playing hardball with a court which had become what it has been most of the years of its existence, a thoroughly political institution that, as Louis Boudin said, favors the rich over the poor, the established power over the People in most of its actions.

That lack of push-back by liberals has lulled the members of the court into feeling too secure that they can take the most outrageous actions and that people will just figure that they have to go along with it because THE COURT HAS SPOKEN!  The members of the Supreme Court need to feel a lot more insecure than they do,  one way to do that would be to impeach and remove members of it more often.  I have no doubt that a Republican-fascist congress would do such a thing so there would be little to lose from a Democratic congress doing the same.   I would make the rampant and arrogantly demonstrated conflicts of interest on cases they heard the issue.  Scalia would have had his fat ass impeached, and Alito, Thomas and Gorsuch have certainly taken actions that stink of it.   I wouldn't be at all upset if they started impeaching them for lying to th Senate during their confirmations, those lies they tell so baldly when everyone in the room knows they're lying through their teeth.

Earl Warren died a long, long time ago.  And those rulings that comprise his legendary legacy, as with John Marshall, a lot of those were a lot less great than their publicity leads suckers to believe.

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