The “Supreme” Court? When Kennedy used a dubious stat to support a decision

Source: Did the Supreme Court Base a Ruling on a Myth? – The New York Times

Well, yeah, it did.

I read this article last night and was stunned. Back in my more naive days I used to think people selected for the Supreme Court had to be the smartest, wisest, most judicial of all lawyers and judges. Because it’s what “supreme” means, right?

Of course that belief took a major hit over the past couple of decades. When the Clarence Thomas hearings brought Anita Hill into the picture, I sent telegrams to every senator pleading that Thomas not be confirmed. My opinion–if not the Supreme Court opinion–was absolutely correct. Thomas should not be anywhere near any kind of court.

There still remains the hope that someone who seems like a mediocrity or cypher or corporate and religious shill will, once on the bench, have an epiphany and turn into a wonderful justice. And I am not immune nowadays to folding my hands in a sort of prayer to Anthony Kennedy and even John Roberts that they’ll suddenly develop a rational, contemporary and compassionate idea of the laws that govern all of us, instead of nodding and winking at corporations, racism, gerrymandering, voter suppression, misogyny and gun owners.

Still, I have to trust that the clerks of Supreme Court justices do vital research into statistics and legal entanglements before citing something in a decision they’re preparing for their justices. And I have to trust the justices hire clerks whose keen abilities they can trust, or that the justices ask a lot of questions of clerks when statistics are brandished to support a decision.

I’m not surprised that some justices don’t write their own opinions, although I believe they all read their opinions before signing off on them. Don’t they? I read everything I sign.

So here’s the shocker in this story about Anthony Kennedy–the justice a lot of people consider a swing, i.e., occasionally apolitical vote on this right-wing court. From the terrific New York Times Supreme Court reporter, Adam Liptak [my bolding, when my mouth dropped open and I had to gasp for air]:

…The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.

But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.

He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department.

The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.

The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal.

Right now I have 100 letters, envelopes and labels all over my floor, letters I am sending to each senator, letters deploring the Neil Gorsuch nomination.

And here, with this awful opinion citing one dubious source, I learn that Justice Kennedy either doesn’t care enough about people whose lives he can permanently damage to double-check his sources and question his clerks, or he just isn’t that smart.

So much for my respect for the Supreme Court.

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