During oral argument before the Supreme Court in the vax mandate cases, Justice Sonia Sotomayor raised a “fact” that wasn’t.
Justice Sonia Sotomayor claimed that over 100,000 children are in “serious condition” with covid-19. Many, including The Post’s Glenn Kessler, pointed out that while omicron does seem to affect children more than other variants of the coronavirus, Sotomayor’s figure was wrong by a factor of about 20.
That she was wrong, and so very wrong, is still a big deal, First, because people are now able to hear oral argument through live streaming, a justice’s assertion of a fact tends to put it into the mainstream of reality. If Sonia said so, it must be true. Second, false facts asserted by justices skew argument, as it puts the lawyers arguing in the position of addressing a point that doesn’t exist. It’s hard to reply to a justice’s question, “what about this thing that isn’t true by a factor of 20” with “with all due respect, your honor, that’s fucking nuts.” Rarely does this win over a justice.
As Radley Balko notes, this isn’t the first time the Supreme Court got its facts wrong, and there is, in fact, a shockingly long list of “facts” that exist only in the minds of justices and Supreme Court opinions.
The court has repeatedly held, for example, that an alert from a drug-sniffing dog constitutes probable cause for a more extensive search. Over the years, the justices have been presented with statistics showing that drug dogs’ alerts are often no more accurate than a coin flip. The dogs’ sense of smell isn’t the problem. It’s that the animals have been trained to read their handlers’ body language, and they’re rewarded for confirming their handlers’ suspicions.
Despite multiple opportunities to address the issue, the justices have doubled down. In a 2013 unanimous opinion, Justice Elena Kagan wrote that fears about false positives are misguided because most dogs are certified by accrediting organizations. A ProPublica investigation found that certification groups don’t test drug dogs for false positives.
And then there was the infamous Kennedy statistic about recidivism rates for sex offenders.
Justice Anthony M. Kennedy’s 2002 mistake about sex offenders and recidivism was even more catastrophic. Kennedy cited a pop psychology magazine’s claim that 80 percent of sex offenders go on to reoffend. The opinion has since been cited by lower courts more than 90 times to justify increasingly draconian punishments for offenders, including lifetime registries, residency restrictions that have left people living under bridges, and even indefinite detention after they’ve served their sentences.
In fact, there was little evidence for the 80 percent figure at the time. Research has since shown the rate to be somewhere between 8 and 35 percent. (And the very types of punishment Kennedy’s opinion has unleashed tend to make recidivism more likely, not less.) The court has since had multiple opportunities to correct Kennedy’s mistake. It hasn’t.
Radley goes on to list others, though it’s a nonexhaustive list, but his point is indisputable: The Supreme Court blows the facts with regularity. It would be one thing to argue that “to err is human,” but given the nature of what SCOTUS does and the finality of its rulings, there is no excuse for getting the facts wrong, and even less for not correcting them when it becomes brutally clear that they were wrong.
For her part, Justice Sonia Sotomayor was raked over the coals for her wrong numbers, mostly as a mechanism of political “gotcha,” as her position on the issue was, as it so often is these days, pretty clear.
The irony here is that Sotomayor has often been a lonely but reliable voice for victims of police and prosecutorial abuse, the very people most often harmed by these misstatements of fact in written opinions. (Though she also joined in two of the opinions above.)
That criticism, or “scorn” as Radley puts it, is directed at Sotomayor mostly because she’s the empathetic Latina rather than she said something wrong. Being Sonia from the liberal wing, vax mandate opponents beat her for being against their cause more than for saying something wrong. It doesn’t make her assertion any more factual, but the glee in her giving her enemies cause to attack was disingenuous.
That said, it’s concerning that a Supreme Court justice would make an assertion so flagrantly wrong at oral argument. No, as Radley argues, it’s not nearly as bad as when a false fact finds its way into a decision, and thus into the law. But it’s also not that much to expect a Supreme Court justice to get their facts straight throughout the performance of their job, oral argument included. Even if it isn’t “that bad,” it’s still bad, and more importantly, there’s no excuse for any Supreme Court justice, with the small number of cases they handle and the resources available to them to get their facts right, to make such a flagrant error during oral argument. It wasn’t the end of the world, but it was no proud moment for Sonia.