I've had an item on a slow burn since the middle of the summer, and now I think I know what I want to say about it.
In July, The Washington Post ran an interesting piece about whether it was appropriate for U.S. Supreme Court justices to use Google while forming their opinions. "The justices routinely supplement their arguments with facts, studies, media reports, law review articles and other materials that none of the parties in the case before them ever put forward or countered," wrote Robert Barnes. This practice "has become a new focus of legal academic research."
Barnes begins be recalling the angry dissent from Justice Antonin Scalia in June when the court struck down some provisions of Arizona's immigration law. Scalia cited a nine-day-old newspaper article in his dissent–obviously something that was not presented as part of the trial record. He notes that Justice Harry Blackmun spent time "hunkering down" in the Mayo Clinic library to research abortion before writing the majority opinion in Roe v. Wade in 1973.
And the connection to science journalism is…?
Many of the court's decisions involve questions of scientific fact. Roe v. Wade was clearly one of them, but there are others–and such cases will continue to come before the court. In June, for example, the court barred mandatory life terms for juveniles. In the court's opinion, Justice Elena Kagan cited a friend-of-the-court brief by the American Psychological Association, the American Psychiatric Association, and the National Association of Social Workers that detailed research on brain development relevant to the case. “It is increasingly clear that adolescent brains are not yet fully mature in regions and systems related to higher-order executive functions such as impulse control, planning ahead, and risk avoidance," Kagan wrote in a footnote.
The question for science reporters is whether the court properly applies such information in its decisions, an assessment that might be challenging for reporters who cover the court and whose background is in legal issues, not scientific ones. Science journalists are in a good position to write stories about these cases, and such cases can also spawn broader stories about complex and timely issues.
Back to Google
It's customary for justices to rely on information from friend-of-the-court briefs, and of course from information presented by the lawyers arguing a case. That forms the basis of the court's decisions, and it should. But is it so important that justices should be discouraged from using Google?
That seems to be the argument in a forthcoming legal research paper by Alli Orr Larsen, a professor at William & Mary Law School, and a former clerk for retired justice David Souter. She found more than "100 examples of factual authorities relied on in recent decisions of the U.S. Supreme Court that were found 'in house,'" meaning that they cannot be found in "any of the party briefs, amici briefs, or the joint record."
It's interesting that the justices are doing research to support and inform their decisions, but not surprising, in my view. Don't we all do that?
Larsen, on the other hand, is "concerned about the potential dangers" of this practice–including "the possibility of mistake" and "the systematic introduction of bias." One of her proposed remedies is to restrict reliance on the use of facts gathered by the justices or their staffs.
Larsen notes that judges have traditionally relied on the adversary system which, she says, "is quite practiced at finding facts." Larsen's understanding of the legal process extends far beyond mine; I plead no contest. But in my naive view, the adversary system is often quite practiced at obscuring the facts. I don't have nearly the faith in the adversary system that Larsen seems to have.
As a journalist, I couldn't agree more that Google is riddled with errors and opinions presened as fact. But are not adversary proceedings subject to precisely the same problems? Were the lawyers arguing the case concerning mandatory life sentences for juveniles widely versed in current scientific understanding of the juvenile brain, and did they present the facts without shading them in ways that would favor their arguments?
I'm inclined to believe that informed justices are likely to make better decisions than those who are not informed. Call that an article of faith, if you like. And I can't say I'm entirely sure what Larsen is getting at in her paper. When the Post story appeared, I shot off an intemperate email to Larsen in which I wrote this:
Can you possibly be arguing against consideration of the facts by the Supreme Court? I'm thinking of doing a post on this, and I cannot, after some thought, come up with any way that ignoring the facts will improve the Supreme Court's decision-making.
You might consider how ignorance of the facts has led to outrageous statements denying the facts of climate change, or the health consequences of abortion. If the Supreme Court were to rule in a case related to climate change, my suggestion would be that it look closely at the facts, rather than the relying solely on the mix of fact and bombast–and perhaps deceit–from paid advocates.
She replied, "I do not, of course, argue that the Supreme Court rule without considering facts."
We agree on that point. I guess the disagreement turns on where the facts come from. I'd argue–and I have no evidence for this, merely a gut feeling–that Google is no more or less likely to provide reliable information than a lawyer who is handsomely paid to push a point of view.