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Friday, November 11, 2011

Justice Scalia and Empirical Pragmatism

The U.S. Supreme Court has discussed empirical evidence and data in many constitutional rights cases with varying results (think of Brown, Craig v. Boren, McCleskey). The use of such material in constitutional interpretation can be called empirical pragmatism. A very interesting recent case involves Justice Scalia's passionate rejection of this type of evidence.

The case is Brown v. Plata, 131 S.Ct. 1910 (2011), which upheld a broad structural injunction against the California prison system for its failure to solve severe overcrowding, and related medical care problems, for many years. In dissent, Justice Scalia wrote as follows: "...the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course, they were relying largely on their own beliefs about penology and recidivism. And of course different district judges of different policy views would have 'found' that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make 'factual findings' without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate...Yet because they have been branded 'factual findings' entitled to deferential review, the policy preferences of three District Judges now govern the operation of California prison's system." Id. at 1955.

I wonder what folks think about this argument. I find the tone to be unnecessarily dismissive, and also find irony in his ideologically based assertions that such findings are not neutral. What else could the District Judges have relied upon besides experts and data. Moreover "what occurred here" was a Court ruling that may protect the health and safety of vulnerable prisoners.

Posted by Mark kende on November 11, 2011 at 06:05 PM in Constitutional thoughts, Criminal Law, Privilege or Punish | Permalink


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you're suggesting that judges are never or almost never moved by actual evidence or studies

I am suggesting no such thing, and I don't read Scalia to be doing so, either. I am saying that on issues involving "facts" that are really imponderable questions, judges view the evidence and studies through a certain prism. And it doesn't need to be "political" in the conventional sense. A judge who thinks that predatory pricing is almost impossible to pull off, or that large cartels are almost impossible to maintain against cheating, will need much more evidence and studies in a particular antitrust case to find liability than a judge who thinks that predatory pricing is quite feasible and that cartels are easy to maintain. It is not that the skeptical judge can never be persuaded that someone has engaged in, or at least attempted to engage in, predatory pricing or forming a cartel, or that the believer judge will always find anything and everything to be predatory pricing or a cartel. It is that their preexisting unsubstantiated empirical intuitions--and these intuitions are really unsubstantiable, since these questions have not been fully resolved even by economists--will affect how they view the evidence.

Lawyers are prone to dichotomous thinking. Somehow, if I say judges are not value-free robots who consider evidence entirely free from preexisting baggage, it becomes twisted into suggesting that judges consider only the preexisting baggage. There is this thing called "middle ground" -- and most things in life fall within it.

Posted by: TJ | Nov 12, 2011 3:21:54 PM

TJ- I guess I want to know more about your view here. It _seems_ that you're suggesting that judges are never or almost never moved by actual evidence or studies- that they only or almost only gather such things as post hoc rationalizations for what they want to find anyway. I don't doubt that that sometimes happens, but if that was what always or almost always happened, it would be quite surprising, since that's not so for many people who are not judges. It wasn't the case, for example, when I was clerking. Now, I was on a specialized court and expert evidence was often quite important to our cases, and our cases were not as politically loaded as many others, but I know that the chambers I was in, and others, were moved by evidence in the same way that people are moved by evidence in the real world, at least a fair amount of the time. You, and Scalia, seem to be suggesting that this is rarely if ever so. That sounds more like a self-report to me than a careful evaluation, but I'd like to hear exactly what you think is the case. As for Kennedy, he's not stupid, so I'd like to think that if he'd bothered to look at some real studies, he might at least not have put that offensive and stupid bit in his opinion, even if he reached the same result.

(Of course, that particular case was full of "facts", especially those in the congressional record that were also merely made up. I suppose if one had signed on to that, there would be a strong temptation to suggest that no one is really moved by facts and that it's all just post-hoc rationalization, but that sounds like special pleading and not an argument to me.)

Posted by: Matt | Nov 12, 2011 7:22:22 AM

Matt, not really to contest your point, but would you be any happier if Kennedy cited a bunch of studies and "pretend[ed]" -- and it really would only have been pretending -- to reach his conclusion based on the admissible evidence before him and not on any undemonstrated (and undemonstrable) intuitions? No, right? I'm sure everyone would still just say that he is viewing the evidence through the prism of his subjective empirical intuitions which inevitably put a gloss on the data, and that all of us are subject to confirmation bias and see what we want to see more than what goes against our preexisting beliefs. And so far as I can see, that is what Scalia is saying the district judges did, and which is almost certainly true. You can say "tu quoque," but I don't see anything else except that.

Posted by: TJ | Nov 12, 2011 4:25:13 AM

Do women regret their abortions and, if so, how many?

It's perhaps worth noting that in the most famous case involving this sort of thing, the person writing the opinion didn't even bother to pretend to have any evidence, but just made something up that seemed right to him. (Him, of course.) There's fact finding and then there's "fact" finding. It does no one any good to pretend that just making something up because it seems plausible is the same thing as doing the best that one can on the basis of evidence.

Posted by: Matt | Nov 11, 2011 9:58:29 PM

Scalia spoke the truth. But he might pick up a mirror.
It's unfair to the district court judges insofar as it is no different from what he does.

Posted by: frankcross | Nov 11, 2011 9:11:09 PM

While dissing District Court Judges with whom he disagrees, Justice Scalia is describing his own conduct. He is the epitomy of a "politican in robes."

Posted by: Mike Zimmer | Nov 11, 2011 8:11:50 PM

Mark, I view what Scalia as doing as the same thing that a great many law professors do with a great many judges. It is called legal realism. It seems almost incontestable to me that many judicial decisions are infused with subjective empirical intuitions and value judgements: e.g. Does widespread gun possession increase or decrease crime? Do women regret their abortions and, if so, how many? Does robust intellectual property foster or retard innovation? Do punitive damages over-deter or under-deter? Do the death penalty provide deterrence, and how much? Does affirmative action help or hurt minority students?

A great many law professors, including myself, make a good living criticizing judges by saying that they decisions are not robotic and are based on value judgements and contestable empirical intuitions that are almost impossible to fully verify. Us legal realists often hasten to add that we don't think this proves judges are acting in bad faith, in that these judgments are inevitable--e.g. it is almost impossible to support the constitutionality of affirmative action without believing it helps minority students--and often unconscious. I don't see Scalia as doing anything different except in tone. And in that sense I don't think it is being unfair to the district judges, unless you think that all legal realists are being unfair to all judges.

Posted by: TJ | Nov 11, 2011 7:28:17 PM

Justice Scalia's point is that there are two other branches of the government that make policy decisions. Both the President and Congress (or in this case the California governor and legislature) are elected officials, and both have resources beyond a law library to do policy-oriented research. They are the ones who are in the position to make policy determinations, not judges.

Posted by: Chance | Nov 11, 2011 7:21:59 PM

TJ: Thanks for your question. Scalia is essentially accusing the district judges of having a political agenda, though he tries to lessen the accusation by saying he is not assuming bad faith. I think his accusation is unfair and inaccurate. The fact that he has written in a similar tone before is certainly correct, but hardly a justification. I am not alone in this view of his tone in these matters. Of course, different judges can resolve tough cases differently. But it does no one any favors for Scalia to suggest that these judges were not doing the best they could, with the strongest available fact-based evidence, to arrive at the most legally appropriate result.

Posted by: Mark Kende | Nov 11, 2011 6:56:16 PM

I'm not actually sure what your complaint is. If it is the tone, then yes it seems a bit dismissive, but that is standard Scalia tone. If it is that the Supreme Court does its own ideologically-tilted fact finding at times, I think that is actually Scalia's point: these fact-finding exercises are dealing with empirical questions that are so difficult to objectively measure that decisions necessarily intermix value judgments and amorphous subjective empirical intuitions in addition to the "objective" evidence being presented, so different judges will have different intuitions and different results given the same testimony and data. Are you saying that is wrong? Or are yous saying something else?

Posted by: TJ | Nov 11, 2011 6:40:21 PM

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