John Roberts’ Curious Voting-Statistics Sophism Misconstrues The Census Report’s Statistics by Failing to Consider Key Statistical Deviation Facts and Fails To Consider WHY Massachusetts Blacks Might Be Voting In Lower Percentages Than Mississippi Blacks Are, Even IF They Are. [UPDATED]
In a blog post titled “In Voting Rights Arguments, Chief Justice Misconstrued Census Data” on NPR’s website, veteran NPR Supreme Court correspondent Nina Totenberg deconstructs a sophism offered by John Roberts at the oral argument on Wednesday on the continued constitutionality of a key section of the Voting Rights Act of 1965, which Congress has extended several times, the last time, overwhelmingly, in 2006. Totenberg writes:
Totenberg goes on to say that the statistics Roberts used were taken from a lower-court dissenting opinion, statistics that in turn were taken from a 2010 census report. “But,” Totenberg says, “upon close examination, the numbers are less than reliable, according to the Census Bureau itself.” She explains:
Now, look at Mississippi, where black turnout is listed at 48.7 percent. But because of the large size of the African-American population that was sampled, the margin of error is only 5.4 percentage points.
Yep, John Roberts, it turns out, is no statistician. But neither is he, well, a social scientist. Or even a moderately sharp observer of politics. At least, not of Massachusetts politics. Where, y’know, Democrats usually win with lopsided victories in, say, House races in predominantly black Congressional and state-legislative districts; where the outcome of the state’s electoral college presence in presidential elections has not been in doubt for decades; and where neither Ted Kennedy’s nor John Kerry’s reelection was even remotely in doubt since, I guess, the 1994 Ted Kennedy/Mitt Romney campaign. Totenberg’s report makes clear that voting in the hotly-contested statewide race to replace Kennedy, who died in office–a special election in late 2009–was not part of the census report, which measures voting only in national elections.
So, might not the question of what’s at stake in a particular election matter, even when you’re a Supreme Court justice who’s spent decades wanting to see the Voting Rights Act’s demise and will not be fussy about the grounds you state for your decision? I mean, just to make it look sorta rational?
Most of the media attention concerning that oral argument focused on what were truly shocking comments by Scalia in which he said both that voting rights are a racial entitlement and, equally stunningly, although gaining less attention, that the motive of members of Congress in voting to “perpetuate” that “racial entitlement” in extending the Voting Rights Act–political reasons, he said–is appropriate reason for the Supreme Court to refuse to give the usual “deference” (here, legalese for benefit of the doubt) to Congress’s legislative decision after weighing extensive evidence, even if the motive was itself not unconstitutional.
This latter–that the motive of members of Congress, which in this case no one claims was an unconstitutional motive (e.g., a racist motive or a religious-discrimination motive)–purports to give the Court the constitutional authority to reject Congress’s legislative choices–is so obviously bizarre and dangerous that, in this case, it likely won’t garner agreement by any other justice. But that oral argument was the second time in less than a year that Scalia offered this argument, and the first time he did so, he was joined by three other justices.
The case in which this occurred was the ACA (Obamacare) case. In his dissenting opinion, he claimed that because a majority of the Court was voting to strike down as unconstitutional one section of the statute–the section concerning the consequences to states of refusing to agree to accept the expansion of Medicaid–the Court must strike down the rest of the statute, not because a majority thought the rest of the statute also was unconstitutional (a majority did not), but because a few members of Congress who voted for the statute might not have voted for the statute if that Medicaid-expansion part was not part of it. The ACA passed the Senate with no votes to spare, see, so, well, I mean, who’s to say that without the Medicaid-expansion part, the statute would have passed at all?!
Rest assured, though, that this, like sooooo many other movement-conservative gimmicks, would be entirely discretionary with the justices, or lower-court judges, case by case. A budget bill that conservatives favor, and that’s enacted in a close vote, would not be strikeable in its entirely even if it contained some part that a majority of the Court thinks is unconstitutional. But a budget bill that disfavored by conservatives, and enacted in a close vote, might be strikeable in its entirety if one part is deemed unconstitutional, since ya never know whether it was that log-rolling of the sort that Scalia, Kennedy, Alito and Thomas objected to in the ACA, and that involved the unconstitutional provision, that enabled the passage of the budget bill.
This, by the way, apparently was the bridge-too-far that began Roberts on the road to a change of heart, and change of vote, on the constitutionality of the individual-mandate provision. Reportedly, it really offended and scared him. But it got the votes of four of the nine justices.
This time around, though–in the Voting Rights Act case–Scalia’s apparently trying only to use this motive-matters argument to strike down a key section of the Act, not the whole thing. Which makes sense, since log-rolling wasn’t the reason for the 2006 reenactment of the law, and, as I said, the law was reenacted by overwhelming votes in each house; 98-0 in the Senate. But luckily for Scalia and friends, among them Roberts this time, there is that census report.
And Nate Silver hasn’t been asked to analyze it. And he probably won’t be.
UPDATE: OH. WOW. Politico reported last night, in an article titled Massachusetts official slams chief justice’s comments on Voting Rights Act:
So Roberts was gamed by an incompetent or intellectually dishonest lower-court judge, from whose dissenting opinion Roberts took the bait, the hook, the line–and the sinker. It’s fairly commonplace for lower-court judges to misstate or omit key evidence. Sometimes, it’s because the law clerk they’ve assigned to do their work for them doesn’t bother to actually nail down or verify facts put into briefs, and sometimes it’s just that they know how they want to rule, and just cherry-pick truncated statements of fact to support their chosen conclusion. And sometimes–and believe me; this is true–they just fabricate a fact out of nowhere.
But, really–the chief justice of the U.S. Supreme Court using a statistic on voting that includes non-citizens as eligible to vote, because he just lifted a surprising statistic from a lower-court judge’s dissenting opinion, without first looking into its plausibility, much less its actual accuracy?
What’s next? The chief justice relying unquestioningly on a Bob Woodward report?
like i allus say
the Constitution is what the Supreme Court says it is.
People being human and all.. except in some cases… the Court is going to “interpret” the law to get the answer it wants… but, never, of course, to “make law.”
the real reason for the Supreme Court is not to “guarantee” the supreme authority of the constitution as intended by the founders, but “merely” to provide another balance or hedge to government.
and the only thing you can do about it, short of shooting in the streets, which Al Gore said he didn’t want, is to elect a President who will appoint the kind of Justices you want.
good luck with that.
i’d be a little worried about a Court that thought “politics” was an unconstitutional reason for a Congressional Act.
Though I’m not sure that a law should ever be struck down “in part” unless the Act was written specifically to allow that.
As far as Roberts goes.. he didn’t give a damn about the Constitutional reasoning. He wanted Obama care for his friends the Insurance Companies. The other four justices could uphold the honor (political credibility) of the far right with no harm done as long as Roberts and the liberals took the blame.
Neither is Scalia or LA prosecutor Marquis, both of whom proclaimed the execution of the innocent in the US was less than ~ .027 of 1%. He went on to say: “[t]his court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” In reality, those convicted to death wrongfully approaches 5%. I calculate it to be higher.
Roberts chimed in with this statement: “A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man.” It is far easier to bury or murder an innocent person than t is to overturn a court or state.
So, Beverly, your argument is that the statistics which the Government compiles are shitty, inaccurate, little better than whistling in the wind, yes?
Error bars are so high that we can’t actually use them to define anythinhg very much? Yes?
Odd that. For your general view seems to be that government should do much more, should intervene more often and with greater effect.
Despite the statistics being used to justify such being so awful, awful enough that we cannot actually discern what is happening, so we don’t even know what the effect of the intervention is going to be.
This is of course the Von Mises/Hayek argument against large government. There’s no way that the centre can ever know enough to make the right decisions. Also known as the socialist calculation problem.
It’s a point that I agree with, obviously. I’m just surprised to see you making it.
Dale, many statutes do have what’s known as “severability” clauses, which specifically state that if one part of the statute is declared unconstitutional, that part of the statute to should be deemed “severed” from the rest of the statute and the remainder of the statute must stand, since it was enacted and is not unconstitutional. But it’s long been part of constitutional jurisprudence that even without a severability clause, any part of a statute that is not necessarily dependent on or necessarily intertwined with the part that’s being stricken must be allowed to stand. That’s really part of the separation-of-powers doctrine; what authority does the judicial branch have to gratuitously strike down unrelated parts of a statute simply because some other part is unconstitutional?
This is really important, since many statutes have parts that are unrelated to one another, and because otherwise, some small group of congressmen or senators can quietly insert a poison pill into a lengthy bill just for the purpose of providing the Court grounds to strike down the whole thing. Also, since the makeup and predominant ideology of the Supreme Court changes from era to era, you end up having, say, the entire law that created the EPA suddenly be stricken down as unconstitutional because, decades after it was passed, some movement-conservative lawyer was able to make a successful argument to a 5-4 Supreme Court majority that some insignificant section of the Act is unconstitutional. Not a good thing to have happen.
Bill, Scalia in recent years has been voicing this really creepy insistence that quite literally ALL that matters in constitutional criminal procedural law (which habeas law is) is technicalities, the barest facial appearances of technicality sufficiency, and (expressly, in a concurring opinion the week before last in a case called Johnson v. Williams, joined by NO ONE else) semantics tricks. His view is that constitutional criminal procedural law is such that it is, and should be, completely untethered to actual constitutional law, because in essence constitutional criminal procedural law is just the equivalent of a manufacturing assembly line. If there’s a defective part that’s used, so be it. The only thing that matters is that the company make a profit; nothing else plays any role at all.
There seems to me to be, finally, an ever-so-slight easing of this view as the one that always carries the day there. But I may be reading too much into what I think are slight indicators.
Um, uh-uh, Tim. My argument–Nina Totenberg’s point–is that the lower-court dissenting opinion that Roberts borrowed from misstated what the statistics indicate, and what they purported to indicate–which was that the census bureau used, of necessity, a sample in Massachusetts that was, as a matter of statistical science, so small that it had a huge margin of error that, regarding Massachusetts, rendered those statistics almost meaningless. Presumably, the dissenting opinion that Roberts was using didn’t mention this., but the census report itself did.
My own additional points were that these statistics apparently were for a single national election, and that unless you factor in what was at stake in that election in Massachusetts, and that there doesn’t appear t have been an even slightly close major election there that year, the statistics are all the more meaningless for the purpose of the issue in that lawsuit.
And, although Von Mises and Hayek probably didn’t understand this any better than you do, the fact that one government statistical report that, of necessity, uses a meaninglessly small sampling, doesn’t mean that ALL government statistical reports use a meaninglessly small sampling, of necessity or by choice.
Maybe I’m misinterpreting, but I find it interesting that you critique Scalia in the original post for his dissent regarding ACA and then go on to explain the concept of severability to coberly in the comments. From my (usually faulty) memory, Congress chose to not include severability in ACA so that when it was ultimately decided by the Supremes it would force them into an all-or-nothing decision.
I believe that there was a severability clause in the ACA, m.jed, but I’m not sure; I don’t remember. But absent a NON-severability clause, the absence of a severabilility clause would not determine the issue.
There certainly was nothing in the history of the final enactment of the statute that suggests an intent to make all the provisions nonseverable from one another. The statute, as enacted, actually was not intended as the final law until, of necessity, it had to be because the Senate had passed it before the election to replace Kennedy, and then the Dems lost that 60th seat, so the House had to simply pass the Senate bill, as is.
if the congress wants the parts to be severable it should so state in the act. because otherwise the court can declare the part of the law they don’t like unconstitutional while letting the part they do like stand.
and like it or not, the Congress is a political body, by Constitutional design, and “log rolling” is a legitimate Constitutional part of legislation.
i haven’t had much respect for your intelligence up to this point, but now you have outdone yourself.
Because some statistics may not be “reliable” (that’s a technical concept by the way)., or more accurately, because an ignoramus on the Court tries to use unreliable statistics as though they were Holy Writ, you conclude that “big government” is impossible, immoral, and just not up to your high standards of perfect liberty.
you are a little like the man who saw an unwashed car and decided the internal combustion engine was not practical.
tell you what, the rest of us will just have to muddle along without your approval.
the congress should not be passing acts it has not read.
no doubt a subsequent case can be used to attack a law because “part” of it is unconstitutional. that is similar to the risk i described in my above comment, only in the opposite direction.
i would think the congress would just have to re-pass the law without the unconstitutional part, or have included a severability clause in the first place.
you can’t just pick and choose the interpretation you want at the moment… what do you think you are? a supreme court justice?
small clarification of my “dirty car” comparison…
i did not mean to imply, as Worstall did, that there was anything “wrong” with the statistics in question. they were “unreliable” because of the sample size, and known to be so. that’s what statistics does for you. “hey, need a “best guess” for a small cost… here is a small sample, but use it with caution.”
but Worstall figures that’s a reason to disband the federal government in favor of “local government” in a world in which there are corporations that are bigger than whole states, not to mention foreign enemies.
the sad fact is that the “big government” meme arises out of the long battle against slavery. the “big government” told the states they could no longer enslave, or lynch, their black “citizens.” oh, unfair, unfair, they cried. what does the big government know about our local problems.
same thing happens in England, only the “black citizens” are white, and the “states” were, are, the local gentry. went through somewhat the same history w the “king v nobility” though Bruce will no doubt correct my history.
but the fact remains, the people of the united states have enemies too big to fight without a big government on their side…. which they seem to have lost.
“. . . Scalia in recent years has been voicing this really creepy insistence that quite literally ALL that matters in constitutional criminal procedural law (which habeas law is) is technicalities, the barest facial appearances of technicality sufficiency, and (expressly, in a concurring opinion the week before last in a case called Johnson v. Williams, joined by NO ONE else) semantics tricks.”
His Harmelin opinion. The fact that still serves as precedence on proportionality/8th Amendment jurisprudence even today is an indication of the vulnerability of the justice system to pedantic justices more concerned with structural arguments than the substantive policy behind those arguments.
Some social conservatives and tea party fanatics would love to return to the days of yesteryear when Jim Crow laws were SOP, and political intimidation of voters at election precincts was frowned upon, yet widely tolerated … and some justices on the SCOTUS appear to be all too eager to accommodate this quest for social devolution.
This is a trick question so,be warned. Where in the federal Constitution does it say all citizens have the right to vote? Hint: Coberly has kindly reminded us that the Constitution says what the Supremes say it does. Answer in tomorrow’s AB Open thread. NancyO
There is a book, “America’s Unwritten Constitution,” by Akhil Reed Amar, that makes a case that we have an unwritten constitution that underlies the written one, and indeed is what makes the written one comprehensible.
I think he is right. Though I think we are in grave danger of losing it.