This is an Oct. 28 transcript from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.
Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court and the law. I’m Dahlia Lithwick. I cover the courts for Slate, and this week the U.S. Supreme Court chucked whatever was left of the original travel ban litigation, all in time for lower courts to challenge the newest version of the travel ban. It’s Groundhog Day every day this year at the Supreme Court.
Next week the court will be sitting again in a November session that will include a challenge to an Ohio voter roll purge, but the big story this week is still the slow but inexorable freak-out of Senate Republicans, notably John McCain, Bob Corker, most recently Jeff Flake, who have all been willing to go on the record and talk about Trump’s actual unfitness for office.
Corker talks about Trump as needing “adult day care.” His secretary of state Tillerson has reportedly referred to the president as a “moron.” Have a listen. These are Senate Republicans.
Sen. Bob Corker: Yes, I want him to support diplomatic efforts, not embarrass and really malign efforts that are underway to try to get some kind of diplomatic solution.
Sen. Jeff Flake: We must stop pretending that the degradation of our politics and the conduct of some in our executive branch are normal.
Lithwick: All of this of course raises the constitutional problem that dares not speak its name. If Senate Republicans really are of the view that Trump is unfit to hold this office, there is a remedy, and it’s called the 25th Amendment. It was adopted in 1967 after the assassination of JFK, and it establishes procedures in case the president or the vice president is not fit to perform their duties.
A few weeks ago, we started hearing a real peak among commentators saying “Hey. Maybe it’s time.” We thought today for our very first guest we’d bring in one of the people who’s been talking seriously about the 25th Amendment for a long time. Rep. Jamie Raskin from District 8 in Maryland actually introduced legislation last July that would solve this problem. Jamie, welcome to Amicus.
Rep. Jamie Raskin: Well, thank you for having me on, Dahlia Lithwick. It’s an honor to be on your show.
Lithwick: Well, before we do anything, I want to ask you this basic framing question, which is, every time you say or tweet or do anything about the 25th Amendment, people say, “No! You’re the crazy one,” like this whole effort is insane. What are you doing? This is so outside the bounds of what we can allow ourselves to talk about. As a sort of table-setting measure, Jamie, can you explain to me that this is not a crazy Hail Mary?
Raskin: Well, first of all, every part of the Constitution is a part of the Constitution, and the 25th Amendment is part of the Constitution. You can look it up in a paper version. You can look it up online. It’s there. In fact, it’s been invoked multiple times.
Now, you gotta understand there’s four parts to it. The first one just says if the president’s gone, the vice president takes over and assumes power. The second says if the vice president’s gone, the president can nominate to fill the vacancy, and with a majority vote in both houses, you got a new vice president.
The third part, I think, has been invoked five or six times. We were able to find where a president voluntarily and temporarily signs over power, so when Ronald Reagan had colorectal surgery for nine or 10 hours, he signed over the powers of the presidency to Vice President Bush, and then he sent a letter to Congress resuming his powers when the anesthesia wore off and he was OK again.
Now what we’re talking about is the fourth section of the 25th Amendment, which says that the vice president and a majority of the Cabinet or the vice president and a majority of a body to be set up by Congress can determine that the president, for whatever reason, mental or physical incapacity, is unable to continue to discharge the powers and duties of the office. In that case, a whole set of procedures kicks in, but basically, it’s a way for the government to continue and to be effective in the event of a disabling incapacity on the part of the president.
Lithwick: Here’s the sticking point. I think a lot of folks say there is no disabling incapacity. He is exactly the person he’s always been. He’s the guy we loved or hated on The Apprentice. Nothing has changed. This isn’t an illness. This is not incapacity. He’s seemingly able to shuffle around and get his job done, so don’t you immediately, out the starting gate, have to falter, because this is not the same as colorectal surgery.
Raskin: Well, that of course is a question of opinion. There is a national group of psychiatrists, psychologists, and mental health professionals that’s formed, called A Duty to Warn. They have a new book out which I do highly recommend to people interested in the subject, called The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President.
Then there are those who say with you, either he’s the picture of mental health, or perhaps he’s the same person we elected, and if he was deranged and incapacitated when he was elected, he should continue now. Of course, we don’t have mental health exams for people before they get on the ballot. The constitutional qualifications for running for president are set out, and they’re just age and citizenship, so there is no mental health test before you run, but there is a test of continuing fitness for office in the 25th Amendment.
Here’s the thing, Dahlia. I’m agnostic on the question of whether the president is mentally or physically incapacitated. Now, it’s not really my judgment, but the Congress of the United States has an institutional responsibility under the 25th Amendment to set up the process by which that judgment would be made in the event of a crisis, and I think there are enough people who are worried about the downward spiral in the president’s behavior and thought processes that they want a process in place, and I’m with those people.
The legislation that I’ve got does not mention the name “Donald Trump.” It’s not about this presidency. It’s about every presidency, and all it does is very simple. It sets up the body that is specifically called for in the 25th Amendment. Remember, it says the vice president and the Cabinet or the vice president and a body to be set up by Congress can determine there’s incapacity, and when I first got elected, I called over to the Congressional Research Service because I couldn’t find anything about where the body was, and I said, “Can you tell me where the body is and who’s on it,” and they said, “It’s never been set up.”
We’ve had a constitutional amendment for 50 years that calls for a body to be defined by Congress, and we simply have never acted, so it gives us the opportunity to deal with this problem once and for all. It’s important because the Cabinet’s not enough. The Cabinet’s not enough because the framers of the 25th Amendment understood that the Cabinet officials worked for the president, and the president could fire them. The body that we set up cannot be fired or dismissed by the president.
Lithwick: It’s important to be really clear that the entity you’re trying to set up is actually a bipartisan entity. Republicans set out half the members; Democrats set out half the members. They each pick experts, so to the extent that it’s characterized as a witch hunt, it’s at least a bipartisan witch hunt, right?
Raskin: Yeah, and obviously, we want to stay a million miles away from anything like that, but yes, we’ve set it up on a scrupulously bipartisan, indeed as much as possible nonpartisan basis, but half the members are appointed by the Republican leaders in the House and the Senate. Half the members are appointed by the Democratic leaders in the House and the Senate. The 11th member would be chosen by the whole body to be the chair, so there would be an 11th member appointed by the members themselves, but it would include former statesmen and stateswomen, former presidents, vice presidents, attorneys general, secretaries of state or defense, as well as physicians and psychiatrists who would make it up, so you’d have a mixture of independent medical experts and professionals, and people who are familiar with the demands of holding the highest office in the country.
If you go back and look at the legislative history of the 25th Amendment, it’s fascinating, because people were saying, “Well, why don’t we have this for Congress?” The answer was, “Well, you got 535 members of Congress. You’ve got frequent elections, at least on the House side, but we’ve got one president, and the job of the president is to take care that the laws are faithfully executed that Congress passes.” So if you’ve got one president who either goes missing the way some governors have, or has a heart attack or a stroke, or Alzheimer’s disease, or a crippling psychological illness, that basically shuts down the entire U.S. government, or it throws the country into a state of chaos. A lot of people feel like we’re already there. Some people don’t feel like we’re already there, but again, our constitutional duty is just to set up a process by which this could be determined in the event that Congress thinks it needs to act.
Lithwick: I love what you just said, Rep. Raskin, because you made the point that I think is most fascinating in watching this unroll since you introduced it in July, and that is this question of “Are we there yet? Are we there yet?” Now we have Gabriel Sherman writing in Vanity Fair that the president is “unstable. He’s unraveling.” We have polling that shows that actually majorities of the American people now think the president may be unfit. I think there’s a way in which this drip, drip, drip quality of seeing what looks to be unfitness but also simultaneously normalizing, means we can never get ahead of this thing enough to say, “Hey, now, now we’re there.” Do you know what I’m saying?
Raskin: Just one thing: I think I first introduced it back in April, not in July. But, yes, I agree completely with what you’ve just said. I’m sending a “Dear Colleague” letter today to my colleagues which says, “There is growing concern across the political spectrum. The three people to blow the whistle most recently are all distinguished Republican senators.” You’ve got Jeff Flake, you’ve got Bob Corker, you’ve got John McCain, who are using all of those words you just invoked about unstable, and this is kind of an unsustainable situation. It’s an adult day care center where the president has to be managed, and so on.
There is a feeling in the country that we’re in a downward spiral, and what I’m saying to my colleagues is, “You don’t have to take a position on that. That’s not our role. You don’t have to vote, ‘Is he fit for office? Is he not fit for office?’ But we do have a constitutional duty to set up the body that would end up participating in that decision along with the vice president.” People don’t need to fear a political witch hunt because it’s bipartisan and it’s bicameral. In fact, at this point, it’s all within the executive branch, but we’ve got to stand up and make sure that we’re fulfilling our constitutional duty.
Lithwick: You know what I’m going to ask you next, right? The Goldwater rule. This seems to be the thing that every single piece that you read about the 25th eventually thuds into the Goldwater rule and this long, long tradition that mental health experts may not/cannot diagnose mental illness in patients they haven’t examined. Now, you’re right. You’ve just mentioned The Dangerous Case of Donald Trump. It’s actually on the New York Times best-seller list. I think that these conversations are beginning to happen, but I think that there’s real peril in allowing folks to make assessments, particularly maybe either mental health experts who have a dog in the fight or non–mental health experts. What’s the criteria by which you get around this predicate horror of making mental health diagnoses of somebody that you don’t know?
Raskin: Yes. Well, that’s an awesome question, and obviously you’re gonna want to talk to the psychiatrist directly about that, but my point is that we don’t need any of the psychiatrists or psychologists to violate the Goldwater rule, because the question is not whether or not he has a mental illness as defined in the DSM. There are clearly people who have such illnesses who would be fine or great presidents. One of them was Abraham Lincoln, who almost certainly suffered from what we would call today clinical depression, which they called melancholia. If you read his writings or the biographies, there’s lots of discussion about how he was plunged into these long bouts of darkness and despondency where he couldn’t talk to anyone, and he couldn’t speak, and he couldn’t eat. But here was Lincoln, perhaps the greatest president in our history.
I don’t think that a DSM diagnosis is either necessary or sufficient to determine unfitness under the 25th Amendment. There are people who might have such an illness who are fine, and then there might be people who don’t fit into one of the boxes who are not fine. For example, somebody who disappears, somebody who has a heart attack, somebody who is suffering from painful memory loss or Alzheimer’s disease. I don’t think that that is DSM diagnosis. The point I’m making is we don’t need to get into a big debate about the Goldwater rule because it’s kind of irrelevant.
The issue is a new one we’ve got to think about, which is this standard. Is the president capable of successfully executing the powers and duties of office? Would that it were so easy as to say if you could get a majority of some psychiatrists to determine that somebody has some mental illness, then you boot them out. No, it’s just not that easy, it doesn’t work like that. We’ve gotta make a judgment about what the duties of the office are. The major duty of the office is to take care that the laws are faithfully executed, not to thwart them, not to fight them, not to sabotage them, not to plunge the country into chaos. We might get to a point where the body that we set up or the Cabinet and the vice president have to make a judgment about that. It’s a very high burden of proof, a very high standard.
We obviously don’t want to make it in any sense a partisan or political thing, and it can’t be, because it’s bipartisan and it’s bicameral, but it is part of the Constitution, and mental illness is a real thing just like physical illness is a real thing. We shouldn’t be ashamed to talk about it. We shouldn’t be scared to talk about it. I told the psychiatrists and psychologists when they came to town that they’ve got a very important role to play in terms of answering the constitutional question as citizens, but their particular psychiatric clinical diagnosis is of limited or no utility in terms of our making the actual judgment under the Constitution.
Lithwick: I just want to be absolutely precise here. If it’s not necessarily a mental health line in the sand, and what you’re describing is some kind of inherent adversarial relationship with the rule of law, an unwillingness to accept that the rule of law is the rule of law, is that more what you’re describing? I’m just trying to understand the benchmark.
Raskin: I tell you what. Let’s look at it from the perspective of a physical disability first. You can imagine somebody who has a heart attack who is basically fine. I’ve heard of people who are walking around for two weeks with a heart attack. Then they discover it. They treat it. You can also imagine a heart attack that’s completely disabling for somebody. The medical judgment alone can help us to inform the question of whether or not the president is able to continue in office. It could be the same thing with a stroke. It could be the same thing with Alzheimer’s disease. There were questions raised about Ronald Reagan. How far along is the problem? That’s why a specific diagnosis itself is only of limited utility.
Again, you can imagine somebody who is clinically depressed but is perfectly able to execute the powers and duties of office. You could imagine somebody who is a paranoid schizophrenic who perhaps has been able to manage it with medicine and so on who’s fine, but you could also imagine someone who’s a paranoid schizophrenic who shouldn’t be allowed to be alone or out in public by himself, much less be president of the United States. We would want all of that information. All of it is relevant, but it’s not conclusive in any particular case. That’s why the book that they’ve written, I think, is very useful, but again, it doesn’t answer the 25th Amendment question, where I think the Constitution is calling on judgments that are not just clinical in nature—certainly, the medical is very much a part of it—but that also go to the character of the office and what the president’s job is.
Here’s the point I want people to understand. In America, we don’t have a king. There’s no divine right to office. The president is elected to take care that the laws passed by the people’s representatives are faithfully executed, and to the extent that the president is doing that and not engaged in high crimes and misdemeanors, which then calls on the whole impeachment question, or comes to lack the capacity to do that job, well, then, you’ve got a problem, and the Constitution deals with it. But the public office is not a property right. It’s something ultimately that belongs to the people. Here, the people rule.
Lithwick: I guess this would be my thought about that, is that there is such a trepidation, even among Democrats, even among folks who I think would agree with you in principle, to pull the trigger on this precisely because it feels so profoundly destabilizing. The only cure for the chaos seems to be what they would suggest is more chaos. I think the reason that I see so much hesitation—and I’m reading Jonathan Turley right now, I’m reading Eric Posner—is here are very, very smart constitutional scholars who are playing with this idea and coming to the conclusion that it’s too risky, and yet you feel like it’s actually not risky because it’s a system. It’s a constitutional system. This isn’t as heavy a lift as impeachment. In your view, this doesn’t destabilize. It actually restores order.
Raskin: Well, I would put it this way: There are obviously risks in life and risks in government whenever you act, and I suppose the question would be “At what point does the American system of government come to a moment where the risks of not acting seem much greater than the risks of acting?” Certainly, the people who think that Donald Trump is a picture of mental health could still imagine a president who would be so deranged and so dangerous that he or she didn’t belong in office, unless they’re simply denying the existence of mental illness or the existence of dangerous mental conditions.
But assuming we can agree to that, well then the question is “Are we there or are we not there,” and again, that’s one which obviously people have a First Amendment right to opine about, like the people who are writing books and articles and debating one side or the other, but the question for us in Congress is when are we going to set up the process that the 25th Amendment presently calls for? I’ve got, I don’t know, more than 30, maybe 35 co-sponsors at this point, but I think I should have 435 co-sponsors in the House for getting this going. Everybody should agree. It does not mention the name of the current occupant of the White House, and it’s to be set up for all time. We should want them in there. At the very least, the discussion we’re having should remind everybody that this is a serious issue that we need to be prepared for in this presidency and every other.
Lithwick: Rep. Jamie Raskin hails from District 8 in Maryland. He introduced legislation last spring that would create an 11-member commission made up mostly of physicians and psychiatrists. It would be called the Oversight Commission on Presidential Capacity. Thank you so very much for joining us this week on Amicus.
Raskin: The pleasure is really mine.
Lithwick: I just want to leave you with this. A few weeks ago, it was reported that Steve Bannon privately warned the president that if he were to leave office before the end of his four-year term, it would be the 25th Amendment, and not impeachment, that got him. Reportedly, Trump’s response to that warning was, “What’s that?”
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For our next segment, we thought we’d do something slightly different, although very much like the last segment. We just want to talk about facts and the law. There was an explosive report last week in ProPublica written by Ryan Gabrielson revealing that the highest court makes a lot of mistakes, big fat mistakes that are embedded in opinions. They were looking at just a random sampling of cases from 2011 to 2015, and Ryan found that the court cited faulty research or introduced its own bad mistakes into nearly one-third of the 24 cases that relied on those sorts of facts.
Ryan, first and foremost, welcome to Amicus.
Ryan Gabrielson: Thanks so much for having me on.
Lithwick: Ryan covers the justice system and the courts for ProPublica. Ryan, help us understand. This is a small sampling, and I think that a lot of people are squawking that it was a small sampling, but what you found was even in a small sampling, kind of a lot of errors, right?
Gabrielson: Absolutely. No, we aren’t trying to say we have calculated an error rate based on anything. The margin of error would be off the charts on that type of thing. It’s really tedious and really difficult to search through hundreds of cases, and it’s not that I won’t ultimately get there, but we started off checking 83 cases, specifically looking for one type of assertions. It’s called a legislative fact, where the court is making a statement about how the real world works, what people do in their regular lives, how institutions or businesses operate on a day-to-day basis, and why that statement supports the decision they’ve reached. It’s usually how these facts are used. It’s like, “Look. Here’s the legal argument,” and then, “Oh, by the way, this affects people this way, and here’s how our position jives with what really needs to happen.”
So they don’t use these facts nearly as often as I would have assumed. Only 24 out of those 83 cases even included a legislative fact, and of those, seven cases got one wrong. I guess to a certain extent, the larger takeaway is Supreme Court justices are a lot like the rest of us. We have a hard time sorting our fact from fiction, looking at a number and wondering, “Does this pass the smell test?” But just more important is the reality that not every single statement that’s being made in these opinions that are hugely influential is being vetted.
Lithwick: So give us an example, Ryan. I know that the one that got probably the most attention was that you found an error in the Shelby County Voting Rights Act case. Do you want to talk about that a little?
Gabrielson: Absolutely. That was one of the ones that surprised me most. This random sample of 83 cases, it just so happened that the case concerning basically key provisions of the Voting Rights Act and who it applies to, Shelby County v. Holder, was in that sample, so that one had several different examples of the legislative facts where they talked about registration rates, voter turnout by race. To be honest, I went into that one thinking there’s almost zero chance that they’re going to make a mistake in this kind of case. I figured that there were going to be errors in the largely overlooked small-time cases, which there were.
Anyhow, I just started meticulously going through every single assertion that was about something larger than just the case at hand. In the Shelby County case, there was a fascinating one where Chief Justice Roberts constructed a chart. I’m pretty sure it was the only chart I ever saw in any majority opinion. It listed out the data for, I believe, the six original states that were subject to the Voting Rights Act, and their registration rates for whites and blacks in 1965 compared with their voter registration rates in 2004. By 2004, it showed that in virtually all of these states, blacks had caught up with whites in terms of registration rates, and some states, Georgia and Mississippi in particular, had surpassed the white race.
He was using this as evidence, like, “Look. Times have changed, and the conditions that warranted all this really intense intrusion on the states’ rights to govern their own elections were no longer justified.” I looked up where he got the chart information from and just started checking it, especially the 2004 voter registration data, which came from the Census Bureau, and when I went to the white registration rates for 2004, and I went right where I knew to go, which was the category “White Alone Non-Hispanic,” those weren’t the numbers in Robert’s chart.
The numbers in Robert’s chart actually showed just “White Alone,” which doesn’t mean actually “White Alone.” If anyone’s familiar with Census Bureau data the way that they categorized different demographic groups, “White Alone” means almost every single Hispanic in the survey was counted as white, and in this particular case in these states, there were a huge number of noncitizen Hispanics which made the white rate for voter registration drop substantially in these states. It depressed the white voter registration numbers so that when compared to the black registration numbers, it looked like there was parity, when in fact in a number of these instances, like Georgia, where it looked like blacks had surpassed whites, the opposite was true. In Virginia, the gap had actually expanded to 14 percent from the ’80s, where it was just a fraction of that.
Lithwick: This gets to nut of the problem, Ryan, which is John Roberts is doing nothing wrong. He’s trying to support his conclusions of law, his conclusions of fact with data. He’s trying to show his work, in effect. That’s good. This, as you pointed out in your piece, goes back to Justice Brandeis, who wanted the justices to live in the real world, to take into account real data, real facts, and he just got it wrong. This is the dilemma I think you’re laying out in your piece, which is they’re trying to be transparent. They’re trying to look beyond the narrow, narrow aperture of the law, but sometimes they really bungle it, right?
Gabrielson: Absolutely. I completely agree. The spirit of what’s happening here I’m fully in favor of. The idea that they should be making law in a closet, unaware of what’s going on around them or the state of affairs, that just seems insane to me. So yes, definitely, the chief justice was relying initially on what a reasonable person would think, to be a reliable source. He had gone to a congressional report that was created as part of the reauthorization of the Voter Rights Act in 2006. He’s pulling these numbers from what he assumed, and probably rightfully so, was going to be reliable. Congressional reports aren’t actually all that well-vetted themselves. Even when you’re going to what should be a reliable source, nobody’s really fact-checking to make sure everything’s done correctly, and then all of a sudden it’s in a Supreme Court opinion and carrying not only the weight of law, but it’s probably going to be cited not only in future cases, but by people writing academic papers and people writing newspaper columns and this and that.
Lithwick: Ryan, I wish you could see my producer’s face right now. We’re goin’ down the rabbit hole of #fakenews, but let’s take one step further, because I think part of your work is building on what was a really alarming 2014 article that Allison Orr Larsen, who teaches at William and Mary, had showed that a lot of these false legislative facts turn up in amicus briefs, that there is a tremendous amount of information that, at least initially, is supposed to be helping the court, giving them the real-life facts that they need to come to conclusions, and Professor Larsen found out that a whole lot of that was just wrong, was deliberately misleading, that it came from very dubious sources. Part of having just stipulated that the justices go into this possibly with really good, openhearted intentions, there’s a kind of pernicious streak here of amicus briefs that either recklessly or carelessly or quite deliberately can mislead the justices, right?
Gabrielson: That’s absolutely true, and that research was groundbreaking in showing that there is this whole line of work, and lawyers who specialize in basically filing these types of briefs, and a whole research, sort of industrial complex, that creates data points that align with certain arguments that interested parties want to make. Now, they’re not part of these Supreme Court cases, but they’re filing as friends of the court. These type of briefs in general, as you said, are recently important, because the Supreme Court justices can’t be experts in the just incredible array of subjects that come before them. These friends of the court briefs are supposed to educate. Of course, they’re also lobbying on a particular behalf, but they are just as likely, it appears, to mislead, and one case that was also in professor Larsen’s report that was also in my sample was NASA v. Nelson.
Lithwick: Right. Talk about that a little.
Gabrielson: Justice Alito writes the majority opinion, I believe in 2011, in a case, NASA v. Nelson, that was a question of whether outside contractors for the federal government should be subject to background checks that involve open-ended questions about past drug use and the like. In ruling in favor of the government, saying, “Yeah, these background checks are totally acceptable, and not only are they totally acceptable legally, they are already commonplace in 88 percent of private businesses,” he got that from an amicus brief filed by basically background check industry groups, and one of those groups, called the National Association of Professional Background Screeners, included in its explanation of who it is—it’s sort of a biography section—that its clients are among 88 percent of private businesses in the U.S. that perform background checks on employees.
There’s no citation for that number, and when you check, the one publicly known source of information about how often private businesses do pre-employment screening, is a society of human resources management. Their surveys from that period of time don’t show any 88 percent number, so I followed up on what professor Larsen had found. It’s like, “Well, there’s no citation here.” I asked the professional background screeners, “Where did you get this from, because I can’t confirm it out there on my own independently?”
They provided two explanations, neither of which turned out to be true. They first claimed that they had gotten their own sort of private, early cut of the data from the human resources group, that just had changed by the time that the final report came out. There’s no evidence of that from inside the HR management group, and they said that they can’t find any evidence of an 88-percent-number period in any phase of their research.
The background screeners group then said to me, “Well, we just combined two different questions together and here are the questions.” Well, the second question they gave me wasn’t in the survey. It just didn’t exist. Then I found some of their form lobbying materials that their members sent to state legislatures all over the place when they wanted to oppose a bill here or there. One such letter sent to Connecticut lawmakers included the 88 percent number several months before this HR group’s survey even began taking responses. So they were using this 88 percent number before any possible source existed.
Lithwick: I want to be really clear that in your piece—because we’re calling out the chief justice—we called out Sam Alito. But Elena Kagan does this. Both sides can play the game of inserting false legislative facts,
Gabrielson: Oh, absolutely.
Lithwick: So let’s be clear about that, but I want to ask you, in a funny confluence of events, your piece came out exactly around the time that John Roberts, the chief justice, presented with a whole bunch of social science data in the gerrymandering case at the beginning of October, called it all “gobbledygook.” That was his word, and boy did he get shellacked from people saying, “Hey! Social science isn’t gobbledygook,” and in fact, I think that the president of the American Sociological Association wrote him a nice letter saying, “We can sit down and teach you this if it’s really hard.”
What do we do about the fact that—and I mean this quite seriously—the justices are dealing with drug combinations in lethal injection cases. They’re dealing with how garage-door-opener technology works. They’re dealing with unbelievable cutting-edge questions about cell phone towers and the transmission of information. This is not stuff we want them, as you said, to make up in a closet. They need to know things, and they have to educate themselves. Presumably, none of them have deep-dive engineering backgrounds or pharmaceutical training in how to mix a lethal-injection cocktail.
What do we do, Ryan, with the fact that they’re dealing with every single cutting-edge issue the rest of us are trying to understand, except by the way some of them are 70, and by the way, they have JDs, but they don’t have the kind of information that experts in any field have, so we want them to reach out of the closet and learn things, yet they’re being led astray, and if your data is even close to correct, they’re being led astray or leading themselves astray at kind of alarming rates.
Gabrielson: Yeah, absolutely. It’s understandable that we’d worry. How are they gaining the technological expertise? I think amicus briefs can really serve that purpose, but what seems to be lacking, at least in my view for the court, is an investigative mindset. Critical thinking is probably too general, but an ability to not only detect from reading something that that doesn’t sound right, but to identify “This is an assertion of fact that definitely needs to be checked,” and to know how to do that. There are a lot of really brilliant minds, not only on the court, but serving as clerks, but none of their training, and probably not their inclination, drives them to do fact-checking or fact-finding on their own that doesn’t involve the legal argument regarding the conclusion they’ve reached.
I think the court’s lacking is really sort of an investigative operation or a research-based operation. It doesn’t have to be necessarily a large one, but certainly one that can evaluate the final products of the majority opinions and determine, “Hey, we don’t know if this is true,” or to go through key briefs that are filed in advance, and the justices saying, “Hey, these are some of the legislative facts, real-world information that this thing might hinge on. Can we get a report that evaluates these different sources in an objective way that is intended to serve the court, rather than the parties filing the briefs?”
Lithwick: This is a useful place to say that when professor Larsen’s study first came out and Adam Liptak wrote about it in the Times, it was much less transparent than it is now. She was talking about—and Adam Liptak subsequently was talking about—broken links, and the court actually changing opinions from the original iteration and not telling us. At least, I think the court is now taking some ownership, and when they make mistakes, claiming “OK. We have to fix that.” That happens more than it used to, but what you’re saying is in addition to transparency, there needs to be some kind of independent ... I think the equivalent I saw floated in your piece was an organization like Congressional Research Service that actually fact-checks the final product going forward, not just transparency, but an aggressive attempt to say, “Are these facts really facts, and where do I find them?”
Gabrielson: Yeah. Especially at the very least, the Supreme Court’s putting out a document that is supposed to stand for eternity in a sense, and it’s going to be read by thousands upon thousands of people, and they’re going to take it as though it’s etched in stone and it is what’s the truth. That has to mean something. Once we start having cause to disbelieve what the court puts out, that has a really significant sort of spiral effect on facing the institution. A least I think so, that’s my belief, at least, as a journalist who wants to believe that truth matters, and accuracy matters, and real facts matter. It would seem that there needs to be some kind of infrastructure beyond just an excellent law library which everyone’s sung the praises of. They’re not necessarily even trained or equipped to do that kind of work.
Lithwick: It’s funny. You’re reminding me of that famous Justice Jackson quote, the aphorism where he says of the court, “We’re not final because we’re infallible. We’re infallible because we’re final,” and what you’re saying is, “Be infallible!” Do something to earn our trust, particularly in this era of fake news and disbelief of sources and disbelief of information. Do something to do better. It doesn’t have to be infallible, but it has to be a striving for underlying facts that are not pulled off Wikipedia at 2 in the morning.
Gabrielson: Exactly, yeah.
Lithwick: Tell me what’s next in terms of ... I’m guessing that you are not content to end this here, you’re going keep looking. Are you broadening the scope of how you’re going to go forward to try to hold the court to the truth?
Gabrielson: In the near term, I’m finishing up a story about one of the initial errors that I found that really warranted a much closer examination of the impact of it, but beyond that, there are certain categories of cases that have risen to the top for me that seem most likely to rely on assertions about how the real world works, involving financial matters and medical matters that I think deserve much closer scrutiny. I’m working on a way to sort of target certain types of opinions and to fact-check those specifically.
Lithwick: Ryan, before I let you go, can you give us one more example of something that you found, so I can horrify our listeners just one notch more than they already are?
Gabrielson: Absolutely. Always happy to serve in that capacity.
Lithwick: Good job.
Gabrielson: One of the most outrageous mistakes that I found, at least in my opinion, was a 2013 ruling written by Justice Kagan. It greatly expanded what counts as probable cause in the realm of doing searches for potential drugs involving drug-sniffing dogs. In that opinion, Justice Kagan wrote that the way to assess whether a drug dog team is reliable is through their certification records and evaluations done by those groups.
When I just went to go check what those certification standards included and what those certification tests did, it turned out that none of them actually test for false positives in any way that produces a measurement of reliability. Some of them don’t even include what would be called false alerts, false positives, situations where the dog alerts to the presence of drugs but there is no drug there. That’s not even a meaningful part of the calculation of what the national certification groups do.
Now we have the standard that we’re supposed to be using certification records to determine if the drug dogs are going to detect drugs that aren’t there, but those certification tests don’t test for it.
Lithwick: Ah, OK. Ryan Gabrielson is the author of a report that appeared last week in ProPublica about the error rate in Supreme Court legislative fact-finding. Ryan, thank you very, very much for joining us this week.
Gabrielson: I appreciate the chance.