Recommendations to help with SCOTUS’ innumeracy

In the wake of recent comments about “sociological gobbledygook” and measures of gerrymandering, here are some suggestions for how the Supreme Court can better use statistical evidence:

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. Levinson, the Texas professor, felt that the problem was a lack of rigorous empirical training at most elite law schools, so the long-term solution would be a change in curriculum. Enos and his coauthors proposed “that courts alter their norms and standards regarding the consideration of statistical evidence”; judges are free to ignore statistical evidence, so perhaps nothing will change unless they take this category of evidence more seriously.

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.

“I don’t put much stock in the claim that the Supreme Court is afraid of adjudicating partisan gerrymanders because it’s afraid of math,” Daniel Hemel, who teaches law at the University of Chicago, told me. “[Roberts] is very smart and so are the judges who would be adjudicating partisan gerrymandering claims — I’m sure he and they could wrap their minds around the math. The ‘gobbledygook’ argument seems to be masking whatever his real objection might be.”

If there is indeed innumeracy present, the justices would not be alone in this. Many Americans do not receive an education in statistics, let alone have enough training to make sense of the statistics regularly used in academic studies.

At the same time, we might go further than the argument made above: should judges make decisions based on statistics (roughly facts) more than ideology or arguments (roughly interpretation)? Again, many Americans struggle with this: there can be broad empirical patterns or even correlations but some would insist that their own personal experiences do not match these. Should judicial decisions be guided by principles and existing case law or by current statistical realities? The courts are not the only social spheres that struggle with this.

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