Daily Read: SCOTUS and Mistakes of Fact

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In a report for Pro Publica, Ryan Gabrielson discusses the underlying truth claims in some recent United States Supreme Court opinions and finds them inaccurate.

Perhaps most worrisome is from Chief Justice Roberts's opinion for the Court in the 2013 closely divided case declaring a provision of the Voting Rights Act unconstitutional, Shelby County v. Holder. Gabrielson writes that Chief Justice Roberts

called the “extraordinary and unprecedented” requirements of the Voting Rights Act outdated and unfair.

To illustrate his point, Roberts constructed a chart and published it in the body of the opinion. It compared voter registration rates for whites and blacks from 1965 and 2004 in the six southern states subject to special oversight. Roberts assembled his chart from data in congressional reports produced when lawmakers last renewed the act. The data displayed clearly that registration gaps between blacks and whites had shrunk dramatically.

But some of the numbers Roberts included in his chart were wrong.

Additionally, Gabrielson notes that Roberts's chart "did not use generally accepted definitions of race."

Roberts, whose recent dismissal of statistical reality in the oral argument in another voting case, Gill v. Whitford, attracted attention,  is not the only Justice to be highlighted in the Pro Publica article and not only for nonlegal matters.  Justice Kennedy, writing in another closely divided case, United States v. Windsor, also in 2013, inaccurately discussed the number of states that prohibited marriage between cousins. Kennedy wrote:

 “most States permit first cousins to marry, but a handful — such as Iowa and Washington ... prohibit the practice.” Kennedy listed only the two states’ marriage statutes as sources.

The primary elements of his statement are false. Half the states prohibit marriages between first cousins, Iowa and Washington among them.

Whether or not such inaccuracies are central to judicial reasoning is certainly debatable.  Whether or such inaccuracies sully judicial reputation is less so.