Sonia and The Lie

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.

12 thoughts on “Sonia and The Lie

  1. Miles

    Another time long ago, I would attribute Balko’s defense of Sotomayor to his distinction between lies in decisions and lies during OA, but from what he’s done in the past few years, I can’t help be think that he’s just defending his tribe just as those who attack Sotomayor are doing so for their tribe.

    It may not be nearly as bad for Sotomayor to have said something so ridiculously false during OA, but that Balko can’t recognize that it’s still shocking for a justice, any justice, to be so wrong is sad.

    1. SHG Post author

      I’m giving myself a pass on my new “hands off the comments” policy to tell a short story. A few months ago, my old buddy Radley unfollowed me on twitter. A few weeks ago, he blocked me. He didn’t say why, but it followed a critical twit about his regurgitation of Carissa Hessick’s argument against plea bargains, as if only the innocent get arrested and every case should go to trial. I was very surprised that it had come to this, but his choice.

      As far as I’m concerned, Radley is still a friend, even if one who has forsaken the harsh reality of being serious about crim law in favor of the facile woke tribalist fantasy. I will not attribute his shift to pandering for progressive validation, but will assume he is sincere in his views. But as a friend, even if he now sees me as his enemy, I will challenge him when he uses his platform to push woke rationalizations where he once pushed hard and often unpleasant truths. And when he’s right, I will applaud him. That’s the difference in how we approach things, and regardless of how he sees me these days, I still see Radley as someone whose thoughts and writings are worthy of consideration.

      1. David

        Many of us have been shocked at Radley’s shift from libertarian police critic to social justice warrior police critic. He’s burned a lot of his cred with those of us who followed him for years, but he’s gained popularity with the woke crowd.

        That he actually blocked you is bizarre. Maybe you reminded him of what he once was when he had integrity and it made him too sad to endure. Maybe he lost the capacity to tolerate differing opinions like so many of his new woke fans. I never would have expected this of Balko, but obviously, I would be wrong.

  2. Hunting Guy

    Marilyn Monroe.

    “ I’m selfish, impatient, and a little insecure. I make mistakes, I’m out of control, and at times hard to handle. But if you can’t handle me at my worst, then you sure as hell don’t deserve me at my best.”

  3. PDB

    If Cosby, Rittenhouse, Sotomayor, etc. have shown us anything, it’s that there is an infinite number of people who have no knowledge whatsoever about how the legal process actually works on a daily basis, but are outraged when something seems off according to their preconceived notions. So called legal commentators (Toobin, Lithwick, Stern) only make things worse.

  4. LRB

    I wonder whether the recent provision of live audio streaming of oral arguments make these types of bald assertions more likely to occur. Of course everyone expects the advocate to be challenged with probing questions, but the premise is still that the justice is attempting to understand the position being put. But now, where the Court must be aware that dozens of people (if not more) are live-twitting every word that falls from them, to the point where a transcription error (see Gorsuch) causes a partisan squabble, there may be a greater temptation to grandstand with weak assertions for the audience rather than focus on the matter at hand. Sotomayor seems to be the worst offender here.

    What do facts matter when you’re playing to the cheap seats?

  5. orthodoc

    The taciturn approach of Justice Thomas is looking wiser and wiser. (He is only “thought a fool” in the Lincoln formulation)

  6. Sacho

    Why are judges offering facts during oral argument at all? Even if by some miracle they’re correct, it’s still just luck rather than something to continue relying on – they’re not experts on anything other than law.

    Maybe I’m just being stupid and the Supreme Court is very special, but this seems like a glaring flaw, and it’s only going to get worse now in our post-factual society where people genuinely believe things that are trivially demonstrable as false.

  7. Robert A. McReynolds

    “this isn’t the first time the Supreme Court got its facts wrong,”

    This reminds me of the litany of “facts” that the Court referenced in the opinion for Lockner v. New York. The Court stated that the life expectancy of bakers working in the conditions that were the subject of New York’s work conditions law was somewhere around 56 years old. Well when you look at the life expectancy for the population overall in 1905, 56 years old is not that much of a deviation from the national average. In this case, it was not a matter of making up statistics, but the use of statistics in a dishonest way.

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