Bench Memos

Law & the Courts

New York Times Is Beyond Parody and Beneath Contempt

I have very low expectations that the New York Times will correct the errors it makes that reflect and reinforce its ideological biases, but somehow the New York Times manages to sink even lower than I thought possible. Here is a case study in its irredeemably irresponsible—indeed, flagrantly know-nothing—smugness:

1. In an article in the year-end issue of the New York Times Magazine, Emily Bazelon smeared Justice Scalia for his supposed views on science. I spelled out in posts how Bazelon got just about everything wrong—citing a report for a proposition it rejects, mischaracterizing the reasoning in a Scalia dissent, conflating social science with the hard sciences, and confusing intellectual humility with disrespect for science. But if you’re disinclined to read through my posts or to take my word for it, I invite you to read law professor and former Scalia clerk (and self-described leftist) Ian Samuel’s absolutely devastating reply to Bazelon (which I excerpted here) on her culminating claim. Samuel concludes:

So, no, Justice Scalia was not wary of science. In fact, the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.

2. A responsible reporter, on discovering how badly she had screwed up, would have worked hard to make amends—making sure, for example, that corrections were made to the online version of the article and were highlighted in a subsequent issue of the magazine. A responsible reporter would also have encouraged the magazine to publish letters pointing out her errors. (Any such steps, to be sure, would have been inadequate, for the article was beyond repair and should never have been published.)

Instead, Bazelon used a Facebook post to respond to a series of Samuel’s tweets (his fuller reply was to her post) and addressed part of one of my points in a three-sentence P.S. that didn’t even link to my posts. (Never trust someone who purports to respond to an argument but won’t link to it.) No corrections were ever made to the magazine article.

3. On December 22, in order to give the NYT Magazine the opportunity to act responsibly, I sent this letter to it for publication:

Dear Editor:

In her reflection on Justice Antonin Scalia (“The Lives They Lived,” Dec. 21), Emily Bazelon depicts Scalia as hostile to science. But she badly distorts all of her evidence.

Bazelon claims, for example, that Scalia dissented from the Supreme Court’s 1987 ruling striking down a Louisiana law on teaching “creation science” because he “saw the case as a question about certainty.” What Scalia actually said was that the limited evidence in the record of the case at the time did not support the majority’s conclusion that the law required the teaching of religious doctrine. He made clear that if the state proved unable to show scientific evidence against evolution—if “the scheme they have established will amount to no more than a presentation of the Book of Genesis”—then he would agree that the law is unconstitutional.

Bazelon also claims that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” But beyond her unscientific conflation of hard science and social science, she flatly misrepresents the National Research Council report that she cites for that supposed consensus. That report concludes that “research to date on the effect of capital punishment on homicide is not informative” on the deterrence question. In short, it denies the existence of any consensus.

Scalia was modest about his own scientific knowledge and doubtful of the mastery that his judicial colleagues and other non-scientists claimed to have. That displayed a respect for science, not a hostility to, or skepticism of, it.


Ed Whelan

P.S. disclosure: I am a former law clerk to Justice Scalia.

4. It’s bad enough, but not surprising to me, that the NYT Magazine did not publish my letter or a letter making similar points. But—hold on to your seats!—take a look at the single letter on Bazelon’s piece that it did publish:

Based on my reading of Emily Bazelon’s portrait of the late Justice Antonin Scalia of the Supreme Court, the world — and definitely the United States — would be a better place had Scalia reigned supreme as a court jester at the Vatican instead of as a court justice in Washington. David M. Lieberfarb, Edison, N.J.

That’s right: The one letter it chose to publish not only uncritically accepts Bazelon’s “portrait” but also exhibits rank anti-Catholic bigotry. (Yes, of the same sort that the Know-Nothings of 150 years ago displayed.) As Samuel has written to me:

Utterly bizarre. That they would publish that letter at all is bad enough, but given the choices it’s unconscionable. 


It would be a good thing to have a “paper of record” (or, better yet, multiple papers) that were deserving of trust. But the New York Times has long since abandoned any claim to be trusted. To be clear, it has various reporters whom I like and respect. But it has a Stalinist culture of ideological conformity that prevents it from acknowledging and correcting errors that suit its ideological predilections.

For that reason, I will celebrate the day—perhaps not too far into the future?—that the New York Times goes out of business.

And to do my tiny bit to help expedite that event, I will highlight that there is no reason for anyone to pay a penny for online access to the New York Times. Here’s an article that presents different ways to get around NYT’s paywall. “Incognito mode”—which on Chrome simply involves clicking in the upper right to open a “New incognito window”—is very simple. (And, no, I don’t see anything remotely immoral in using lawful and non-invasive means to circumvent NYT’s efforts to restrict access to materials that it disseminates on the Internet.) 


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