WEBVTT - Some Supreme Court Members Ignore Hard Data in Cases (Audio)

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<v Speaker 1>Does the Supreme Court have an aversion to math? An

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<v Speaker 1>essay on the website five thirty eight makes a case

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<v Speaker 1>that some Supreme Court justices are reluctant to take math

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<v Speaker 1>and statistics seriously. In a case challenging part as in

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<v Speaker 1>gerrymandering in Wisconsin, gilv. Whitford, Democrats proposed a test, relying

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<v Speaker 1>in part on advanced statistical techniques, including a measure known

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<v Speaker 1>as the efficiency gap, to create a standard to separate

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<v Speaker 1>unconstitutional maps from legitimate ones. Listening to arguments in the

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<v Speaker 1>case in June, it seemed that an aversion to math

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<v Speaker 1>cut across political divides. Here are Chief Justice John Roberts

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<v Speaker 1>and Justice Steven Bryer. It is just not It seems

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<v Speaker 1>a palatable answer to say the ruling was based on

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<v Speaker 1>the fact that e G was greater than seven percent.

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<v Speaker 1>That doesn't sound like language in the Constitution. And it

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<v Speaker 1>may be simply my educational background, but I can only

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<v Speaker 1>describe a sociological compulty book. I think the hard issue

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<v Speaker 1>in this cases are their standards manageable by a court,

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<v Speaker 1>not by some group of social science political x you know,

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<v Speaker 1>computer experts. When I read all that social science stuff

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<v Speaker 1>and the computer stuff, I said, well, what is there

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<v Speaker 1>a way of reducing it to something that's manageable? Joining

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<v Speaker 1>me is Josh Douglas, professor at the University of Kentucky

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<v Speaker 1>Law School. Well, Josh, are the justices allergic to math? Well,

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<v Speaker 1>we'll find out when it comes to this decision, of course,

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<v Speaker 1>But it seems strange that the justices would say they're

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<v Speaker 1>having a version to math in this instance when they

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<v Speaker 1>certainly do use, or at least historically have used social

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<v Speaker 1>science and math formulas in redistioning cases, as well as

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<v Speaker 1>all other sorts of constitutional adjudication. So um, although the

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<v Speaker 1>current crop of justices might feel like in this case

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<v Speaker 1>they the math is going to be complicated, that's historically

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<v Speaker 1>not what the Court has ever really done. Is there

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<v Speaker 1>any way to make a rule in a Gerryman daring

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<v Speaker 1>case without using some kind of formula? I don't think so.

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<v Speaker 1>I mean, because you know, the one of the principal

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<v Speaker 1>areas of redistricting is one person, one vote, this notion

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<v Speaker 1>that everyone's vote is worth the same amount. And the

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<v Speaker 1>way you figure that out is you determine if there's

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<v Speaker 1>the same number of voters in each district. That's math

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<v Speaker 1>that's taking the total number of voters and dividing by

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<v Speaker 1>the number of districts, and that gives you a number

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<v Speaker 1>of how many voters should be in each district to

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<v Speaker 1>ensure that everyone's vote counts the same or roughly. And

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<v Speaker 1>the court, you know, for decades has said, well, you

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<v Speaker 1>should be close to mathematical equality in each district, but

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<v Speaker 1>you can have some level of deviation, and some cases

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<v Speaker 1>have gone around a ten percent level where you can

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<v Speaker 1>be ten percent above or below the average size district

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<v Speaker 1>or what you should be. So that's all math. You know.

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<v Speaker 1>Entering the political thicket with redistricting case is involves all

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<v Speaker 1>those sorts of calculations. Now there's a breaking news crossing

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<v Speaker 1>the Bloomberg terminal. The Supreme Court has dismissed the remaining

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<v Speaker 1>Trump travel band case. The Supreme Court has dismissed the

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<v Speaker 1>last Trump travel band case. Will have more on that

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<v Speaker 1>coming up, Josh. Justice Roberts seemed to be concerned that

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<v Speaker 1>using a formula makes it seem to the public as

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<v Speaker 1>if the Court isn't relying on legal principles, and that

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<v Speaker 1>something would be based on democrats, democrats or Republicans to

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<v Speaker 1>the public. Yeah, you know, I'm not sure what to

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<v Speaker 1>make of that, because I don't think the ruling would

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<v Speaker 1>be the mass says the Democrats win or of the

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<v Speaker 1>Republicans win. The ruling would be that the equal protection

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<v Speaker 1>cause forbids drawing districts that are so skewed toward one

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<v Speaker 1>side or another. How do we know they're skewed? We

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<v Speaker 1>know because the performance of those districts would uh ensure

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<v Speaker 1>one side wins in an election. Um. But that's not math.

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<v Speaker 1>That's dictating the constitutionists the constitution dictating fairness in our elections.

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<v Speaker 1>So I think what the Chief is not doing is

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<v Speaker 1>linking what the math is showing. And it simply the

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<v Speaker 1>mathematical formulas are showing the unfairness, and the unfairness is

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<v Speaker 1>what's apparently unconstitutional. And that's what the public already is

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<v Speaker 1>relying on. I mean, so many of so much of

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<v Speaker 1>the public already thinks redistarcing is unfair, that that the

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<v Speaker 1>politicians are drawing the lines in order to help themselves win.

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<v Speaker 1>Uh So the public gets this. The question is will

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<v Speaker 1>the court understand that this particular formula is one way

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<v Speaker 1>in which to show that on constitutionality. I admit that

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<v Speaker 1>I'm allergic to math and I think many lawyers say

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<v Speaker 1>that I would have gone to business school, but I'm

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<v Speaker 1>allergic to math. So I went to law school, and

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<v Speaker 1>you're the Chief Justice saying maybe it's my background. So

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<v Speaker 1>is there that as well that as lawyers, unless we're

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<v Speaker 1>in certain fields, we're not you know, looking, we're not

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<v Speaker 1>math geniuses. Let's say, yeah, I think that's part of it.

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<v Speaker 1>I mean, certainly my students at the law school seem

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<v Speaker 1>to have an aversion to math, and you know they

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<v Speaker 1>grown when when we have a day on redistricting in

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<v Speaker 1>which I do what I call sixth grade arithmetic, which

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<v Speaker 1>comes from one of these Supreme Court cases on redistricting.

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<v Speaker 1>But the reality is that it's not that complicated the

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<v Speaker 1>math that's involved in these cases. It's fairly simple. You're

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<v Speaker 1>not looking at sovesticated regression now, so you're basically counting

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<v Speaker 1>up vote and doing some division um. And so although

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<v Speaker 1>there may be an initial aversion to the concept of it,

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<v Speaker 1>when you get down into actually doing it, it's not

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<v Speaker 1>that complex. And that's exactly what this efficiency got. It's

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<v Speaker 1>actually not that complex formula. So what about past Supreme courts?

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<v Speaker 1>Have we seen this math aversion in other Supreme courts.

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<v Speaker 1>Certainly there's been some justices who have criticized the Court

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<v Speaker 1>getting involved in redistricting cases. Uh. In in descent, that's

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<v Speaker 1>that's the creat aristhmetic term comes from one of these

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<v Speaker 1>to scents. Um. But I'll say that also, you know,

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<v Speaker 1>a lot of constitutional law has relied on in other areas,

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<v Speaker 1>a lot on social science data or mathematical data. I mean,

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<v Speaker 1>even Brown versus Board of Education. One of the basis

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<v Speaker 1>of that decision saying that separate educational facilities are inherently

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<v Speaker 1>and equal, relying on a lot of social science data. Um.

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<v Speaker 1>And people criticize it at the times as the extent

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<v Speaker 1>of the Court was relying on social science, but that

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<v Speaker 1>was the underlying evidentiary basis for that holding. We look

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<v Speaker 1>at the affirmative action area, and you look at you know,

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<v Speaker 1>admissions for example, a lot of that has to do

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<v Speaker 1>with social science data and uh and compulations about the

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<v Speaker 1>likelihood of admissions, etcetera. So, Um, it's not born for

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<v Speaker 1>the Court to be thinking about social science calculations in

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<v Speaker 1>a variety of its constitutional unication. Maybe just a little

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<v Speaker 1>bit uncomfortable when you're used to dealing with ideology and

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<v Speaker 1>words in the Constitution. We'll see what happens when they

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<v Speaker 1>make this decision in this gerrymandering case. Thanks so much

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<v Speaker 1>for being here on Bloomberg Law. That's Josh Douglas. He's

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<v Speaker 1>a professor at the University of Kentucky Law School. That's

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<v Speaker 1>it for this edition of Bloomberg Law. Will be back

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<v Speaker 1>tomorrow at one pm Wall Street time. We'll have more

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<v Speaker 1>on the Supreme Court dismissing the remaining Trump travel band

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<v Speaker 1>case coming up. Thanks to our producer David Suckerman and

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<v Speaker 1>our technical director Chris trike Comy. You can always find

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<v Speaker 1>the latest legal news at Bloomberg Law dot com and

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<v Speaker 1>Bloomberg BNA dot com, plus a website for the little

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<v Speaker 1>community at Big Law Business dot com. Coming up next,

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<v Speaker 1>Bloomberg Markets with Carol Master, and Carol is here to

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<v Speaker 1>tell us what's in store for us in the next

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<v Speaker 1>couple of hours. Soon we are talking a lot about earnings.

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<v Speaker 1>We're seeing shares of Caterpillar GM Rawlings, who are talking

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<v Speaker 1>about those quarters. And also the Weinstein Company's man in

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<v Speaker 1>shining Armor, Tom Barrick. Why he's helping bail out that company.

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<v Speaker 1>That sounds very interesting. We're all stay tuned. That's Coming

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<v Speaker 1>up on Bloomberg Radio, Bloomberg Markets with Carol Master. This

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<v Speaker 1>is Bloomberg