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Bench Memos

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Lies, Damned Lies and Statistics



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GWU Prof. Jeffrey Rosen’s article (“Center Court“) in the New York Times Magazine today on the filibuster deal and the future of the Supreme Court is a potpourri of just about everything that is wrong with how the Left looks at the judiciary these days.

The set-up is a study in the disingenuous use of statistics. Rosen notes that “68 percent of [Quinnipiac opinion poll] respondents said that Congress ‘does not have the same priorities for the country’ as they do[,]” while 44 percent “approved of the way the Supreme Court is handling its job” – a bloc that Rosen repeatedly calls a “plurality” so he can treat it throughout the rest of his article as if it were a decisive majority. Of course, it actually means a true majority (and, 56 percent, a solid one) did not indicate approval of the Supreme Court’s performance. Rosen blows past this inconvenient fact since it destroys his thesis that Americans are thrilled with the current level of judicial governance and don’t want those bad Republicans to muck things up with nuclear options or, heaven help us, conservative appointees.

Even assuming for argument’s sake, moreover, that these two metrics were enlightening in some sense, they are measuring two very different things. Asking whether someone has the same priorities as you do is vastly different from asking whether you approve of the job he is doing. The pope and I do not share the same priorities, but I think he is doing a good job. Joe Torre and Yankee fans share the same priorities, but Yankee fans probably think he is doing a lousy job right now. Nonetheless, Rosen misleadingly portrays the questions as if they measured the same thing (i.e., as if the same question had been asked about both Congress and the Court) and that the responses mean the Court is 12 percent more popular than Congress. Thus, even on its own terms, his statistics-based argument is invalid – and even if it had any validity he is spinning it ludicrously because the most we could properly deduce from it is that the Court is somewhat less unpopular than Congress, not that Americans are delighted with the Court.

More to the point, this particular reliance on poll numbers betrays how badly the Left misperceives the proper role of the Court. Congress is a political branch. Its performance, if it is performing well, should line up with the priorities of Americans because its job is to represent them – which means actuating their wishes or changing their wishes by persuasion if the members of Congress think the people are ill-informed on some issue or another. Further, because the U.S. has a vast, diverse population, it cannot be said to have a single, identifiable set of priorities – it instead has multiple, competing priorities. Viewed in that light, 32 percent priority-sharing may not be all that bad.

The Court, on the other hand, has a much different job. Its members are given life tenure precisely because interpreting the law is not a matter of thrusting a wet finger in the air to divine which way the popular winds are blowing. If a document like the Constitution or a statute says two plus two equals four, but the public (or, more likely, elite opinion) wants it to equal five, the Court’s job is not to shuck-and-jive to make five. It is to say: “The answer is four. If you want it to be five you need the people whose job that is – namely, the Congress which is supposed to be responsive to your desires – to change the document. Don’t ask us judges to pretend it says something it doesn’t.”

That, naturally, probably would not be a “popular” decision as such things are inanely measured. It would, however, be a correct decision. But it might even be popular, too, depending on how the poll question was asked.

That is, let’s say respondents were asked: “Did you approve of the Supreme Court’s recent decision that two plus two did not equal five?” A majority might well say no – some because they don’t have enough civics education to understand that the court’s function is not to figure out what’s popular and impose it; some, sadly, because they do have what passes for a modern civics education and think the court’s job is to “evolve” us no matter what the objective words of the law may say.

But let’s instead say respondents were asked: “Do you think the court’s job is to apply the law as it is written and leave it to the people, through their elected representatives, to make any necessary changes in the law?” I imagine a considerable majority – i.e., even more than a “plurality”! – would answer “yes.” And even if I’m wrong, that would not change the fact that the question properly frames the institutional roles of the judiciary and the legislature. Thus, the answers would tell us a lot more about the populace than about either congress or the court.



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