Slouching Toward Oligarchy
Shortly after the current Supreme court term opened in October, Chief Justice John Roberts used the term “Sociological Gobbledygook” during oral argument on a Gerrymandering case. Under the “political question doctrine,” drawing district lines for seats in Congress has traditionally been reserved to state legislatures. However, rather than fight the gerrymandering at the polls or in the halls of the legislature, interest groups sought the intervention of the federal courts. Why? Because it is easier than going to through the democratic process. Especially, if you prefer government by federal judges, who with each passing day evolve more and more into a class of unelected, unaccountable oligarchs.
The Chief Justice said to the attorney arguing the case, “…the whole point is you’re taking these issues away from democracy and you’re throwing them to the courts pursuant to . . . I can only describe as sociological gobbledygook.” A short time later, Justice Stephen Breyer used the same term urging the advocate to press his argument “without going into what I agree is pretty good gobbledygook.”
Justice Robert’s comment generated a number of scathing reactions from across the Social Science industry.
Some of the responses were thoughtful defenses of using social science in legal cases while others were over the top denunciations of anyone who would dare question the underpinnings of so-called social science.
The exchange shined a light on a larger question. Just how much should the courts rely on social theory or social studies in fashioning their decisions?
The Starting point is usually Brown vs. Board of Education. For most of us in the legal profession the opinion is the lodestar, the standard for great and momentous decisions. The case led to the dismantling of institutionalized racism in Education by overruling Plessy v Ferguson, the infamous 1896 decision upholding the “separate but equal” doctrine. And the court in Brown justified its conclusion that segregation of the races in the classroom had long term detrimental effects on minority students by relying on social studies that had reached that conclusion.
In the subsequent years and modernly at an accelerating pace, many case decisions of the Supreme Court, some of them momentous, relied on social studies. I tend to think that the term “social studies” is more accurate than “social science.” Though there are plenty who will argue the opposite, the fact of the matter is there is little that is empirical or universally true in the subjects covered. The fact of the matter is there are no eternal verities in social studies. Even the venerable Brown v Board of Education decision is being hollowed out by gender and ethnic based studies on college campuses, which exclude and denigrate other races and genders. It seems segregated housing is all the rage, evenexcluding people of a certain race from the campus itself for special days ostensibly to add to the comfort level for minorities. In fact, a college in the Ivy League no less, just agreed to build housing where students can be separated based on sexual orientation. The fact that this re-segregation is promoted by liberal professors and students doesn’t change its nature.
Other social studies fields can be just as problematical, especially modernly. History studies are more driven by trendy thought, political correctness, and rank speculation then actual provable fact. Psychology, while it undoubtedly can and does help individuals with mental or emotional problems, when applied to broader society can be a joke. As a trial lawyer who specialized in trying homicide cases for 7 years, I found there was great fun in cross-examining defense psychologists. They literally started squirming in their seats when they found I intended to test their conclusions using their own diagnostic texts, especially in demonstrating how often what is and is not a symptom of a dysfunction is arrived at by a majority vote of committees.
And in some fields, studies and reports are so blatantly driven by political agendas as to be laughable were they not used in such serious ways. As a prosecutor I can’t tell you the number of times that some misleadingly named justice foundation issued a study on the justice system that was inaccurate, poorly researched and sometimes intentionally misleading.
And what’s more, the press was often complicit in the perpetuation of the fraudulent theories. They regularly allowed the “institute”, or the “foundation” to “embargo” the report until the “go “was given for publication. The Press knew that the embargos were imposed to get the maximum coverage with a minimum of critical examination. By the time the study could be analyzed, and even obvious errors pointed out the media had lost interest. They uniformly failed to publicize corrections. Not exactly the peer-review you would expect of real science.
The question is not necessarily whether social studies should be relied on, but what weight should be given them. To say that a teenager’s brain is not fully formed, and their judgement is not fully developed is one thing, but to say then they are not fully responsible for the premediated torture murder of a child is something beyond the realm of social science. Yet we see more and more decisions based on such nebulous values as “societies evolving sense of decency.” They lead to federal courts imposing their own values regarding the death penalty for certain classes of individuals, changing the institution of marriage, and making their evaluations of what is necessary for national security when they are singularly unqualified to make such judgements. Those are the matters that the Constitution contemplates being decided by the Congress and the Presidency who, in a democracy, are accountable to the voters.
A recent column by the venerable Dan Walters makes the point about misplaced reliance on social studies very clearly. He relates that how in 1986, a powerful California state legislator had a pet theory that one answer to rampant crime, educational failure and many other social ills was a lack of self-esteem. John Vasconcellos, the legislator, was successful at directing tax-payer funds to the University of California for a study. Two years later the study was released. Its conclusions were dutifully and breathlessly reported by the press. The report concluded that indeed promoting self-esteem would have positive effect on correcting these societal ills. Of course, then colleges, high schools, and grammar schools, based on the UC study changed curriculums. They hustled to adopt self-esteem programs. Other government and private entities did the same. But there was a problem.
It was recently uncovered that the real conclusions of the study were actually just the opposite. It was concluded that “the association between self-esteem and it’s expected consequences are mixed, insignificant or absent.” It turns out The University of California suppressed the real findings and changed the conclusions to satisfy the desires of the powerful Mr. Vasconcellos, whom they feared would make moves to reduce their annual budget.
I don’t doubt that the Supreme Court will still find social studies useful both in the case on gerrymandering and other issues. But it behooves them in deciding an over-arching question of law and society that they treat the studies with a healthy skepticism. Some social studies may be valid. Others may be just so much pre-determined and paid for Gobbledygook.