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Home » Are some of our SCOTUS justices dunces?

Are some of our SCOTUS justices dunces?

The New Neo Posted on by

Read the list of things that SCOTUS justices have gotten wrong about COVID during oral argument questioning today. It’s mind-boggling. The vast majority of the errors are from the liberal justices, and all in the direction of overemphasizing the dangers of COVID, sometimes to a remarkable degree.

What does this tell us? Probably not much that we don’t already know.

The first thing is that justices can find a way to justify any result they wish, and that this is a particular problem with liberal justices who feel unburdened by constitutional restrictions. The second is that if they get their facts from the MSM they will get incorrect facts, although I must say that the errors these justices (especially Sotomayor, but hardly limited to her) are making are more egregious than what I read in the MSM.

The third is that perhaps these errors of fact will be corrected either during the arguments or afterward. But don’t bet more than a few pennies on it.

I will add that Sotomayor seemed to also be making an error of law, which is even more distressing:

I’m not a SCOTUS justice, and my law is very rusty, but as far as I know the federal government doesn’t have what’s known as “police power” (which is not about police); that is reserved to state governments and under. And indeed, that appears to still be the definition, and it’s one of the most basic constitutional legal principles.

Another tidbit is that Breyer said there were 750 million new COVID cases yesterday. In the US? That’s many times greater than the population, and there have only been about 60 million diagnosed COVID cases in the United States total to date. I decided that perhaps he meant in the world, but he would be way overestimating there as well because there have only been 302 million COVID cases in the entire world to date, and about 2 and a half million new ones diagnosed yesterday worldwide.

In fact, if you look at that first link in the above paragraph and go to yesterday’s cases in the US, you’ll see that the actual figure is about 750 thousand new cases in the US. So Breyer appears to have adopted Biden’s type of math, mistaking thousands for millions. The math problem is more contagious in our “elites” than COVID, apparently.

Beyond noting the utter stupidity of some of the statements by the justices – read the entire Legal Insurrection link to get more of the details – I will add that whatever their reasons, factual or nonsensical, I would expect the liberal justices to uphold the mandates and the conservative ones to reject it. It’s the ones in-between who are unpredictable, and I’ve learned that predicting what they will do on the basis of questions during oral arguments is all too often a fool’s errand (although every now and then I take it up). So I’ll make no predictions on the eventual outcome here.

Comments

Are some of our SCOTUS justices dunces? — 64 Comments

  1. Sotomayor is confused by federal and state power? but, but, but she is a wise Latina woman.

  2. I was very disheartened at the level of discussion at the SC. I would’ve thought the justices would have done their homework. Alas. Some of what they said–Kagan, Sotomayor, Barrett, Breyer, in collective particular–was beneath what I would hear at a bus stop or a ballgame. Overall, just one more example of the clown show in action. Nobody in government knows what they are doing.

    Sidebar: is it possible they get their news @ MSNBC?

  3. On “police power,” a better formulation is that the federal government does have “police power,” i.e., the power to regulate to protect the health, safety, morals etc. of the population, solely in areas those areas where it has Constitutional authority. So, for example, the federal government can prohibit the interstate transportation of women for immoral purposes, because Congress has power to regulate interstate commerce. What the federal government lacks is plenary police power, i.e., a general power to regulate for such purposes. The states have that, subject only to the rights of citizens (e.g., the states can’t regulate speech even if they deem it immoral or unhealthy).

  5. On the audio played in that Megyn Kelly link I posted Breyer said there were ‘three quarters of a million cases yesterday’ not sure if he said ‘750 million’ at some other point.

  6. There are no interesting thinkers on the Supreme Court since Scalia passed. Maybe Thomas but I think he is a bit timid about disrupting the status quo. Everybody’s in their lane/rut and won’t get out. I’m waiting to see whether the newbies do anything interesting but not holding my breath. They got where they are by being smart and connected but then by cleaving to certain received notions. The idea that they’re not partisan is just laughable.

  7. Deliberate, not misinformation nor by accident. And those on the left believe it already, so if the SC does not vote the way they want then “lets pack the Court”. Of course the Right is almost as bad. Don’t vote my brand of Conservativism then you are not a “True Conservative”.

  10. I just checked CO rates. May be several days old but close.
    About 80% of ICU beds in State are occupied. Of those 2/3’s non COVID, about 1/3 COVID.

  11. Why do you use the word “elite” when referring to the people who hold the reins of power? What is elite about Sonia Sotomayor, Chuck Todd, Nancy Pelosi, etc.?

  12. Bob Kantor:

    That’s why I put the word in quote marks. Sarcasm.

    But they are indeed elite in the sense that they have succeeded careerwise and have gained positions of power.

  13. Are some of them dunces? Sotomayor, Kagan and Beyer most definitely are.
    I had to turn it off after they spoke. I just couldn’t bear their ignorant pronouncements.
    Unbelievably ill informed.
    Their clerks should be resigning en masse right now for not at least making them familiarize themselves with basic facts.

    ACB is a huge disappointment. I am not surprised to find her grouped with the other three by titan.

  14. The first thing is that justices can find a way to justify any result they wish, and that this is a particular problem with liberal justices who feel unburdened by constitutional restrictions.

    I just like to point out that when an income tax first got implemented in the US SCotUS said it was ok because it wasn’t really a tax, it was a tariff which made it ok. (This was before the 16th amendment.) So yes pretty much.

  16. 1. Remember when Thos. Perez, erstwhile Secretary of Labor and now national chairman of the Democratic Party said he’d gone to law school because he was bad at math. That, and some old age deterioration, explains Breyer.

    2. The rap on Sotomayor when she was appointed was that she was a schemer, attempting procedural maneuvers to prevent her bad decisions from being reviewed. Another complaint was that her intellect was a ratchet or two below the standard set by the other justices. A third is that she’s a blabbermouth in oral arguments.

    I think what we’re seeing here is a function of the sociology of knowledge among liberal elites. One thing that stunned some of us is how features of this from the very beginning were appropriated by partisan Democrats at every level to delineate in-groups and out-groups. See how Democrats top to bottom reacted to a few sentences from Trump about hydroxicloroquine. There’s always a line of the week in the media and your adherence to it is a social marker. These very bright people take their cues from the media or the secondary market manifest in conversations with their social circle about what’s in the media. They cannot be bothered to check the available descriptive statistics. Since the non-liberal judges are not part of this discursive ecology, they’re not uttering these inanities (even if they’re very uninformed).

  17. The funny thing is I was listening to Sotomayor back in Google V Oracle and I was actually impressed she seemed to understand what an interface was. (Which was weird since the Google lawyer didn’t and I say that as a person who is a software engineer. BTW, it’s not that hard of a concept to be blunt.)

  18. I would think that the litigants would be the source of any numbers otherwise, where in hell do these numbers come from? Is it common for judges to throw numbers around as facts without any vetting other than “from my lips”? What a clown show.

  19. I just like to point out that when an income tax first got implemented in the US SCotUS said it was ok because it wasn’t really a tax, it was a tariff which made it ok. (This was before the 16th amendment.) So yes pretty much.

    We had a constitutional amendment because an appellate court invalidated an income tax enacted ca. 1895.

  20. None of them are dunces. The trouble is, people are specialists, and for these judges, there are unknown unknowns.

    In an uncharacteristically sober moment, the radio comic Henry Morgan offered this assessment of a jam session he’d been impressed to do with a Dixieland band, “I learned what I suspected: you can’t kid around in another guy’s trade”. We live in a world where the Bar has appropriated to itself the franchise to second-guess everyone else’s decisions; the rest of us should have pushed back, and we’re reaping the results of our collective failure.

  21. Breyer said there were 750 million new COVID cases yesterday

    To be charitable, there where 705 thousand reported cases in the US on January 5th. So it’s at least conceivable that Breyer got badly scambled on the figures… very badly. But that’s damn near a Biden level bungling of numbers.

    At any rate, we certainly have too many idiots with far too much power.

  23. the justices of SCOTUS are not very exceptional persons. They are not even very exceptional lawyers.”

    No, they’re exceptional lawyers of a certain sort. The filters presidents have applied in the last 35 years are much more finely grained than those applied 70 years ago. What the blawger Wm. Dyer identified as the problem is the degree to which Supreme Court justices have tended in recent decades to be deficient in experience in important areas of law and modes of practice. He was a defender of Harriet Miers because her professional life was up to that time so unlike those of the other Justices on the court, and he thought the court would thus benefit from her perspective.

  24. We had a constitutional amendment because an appellate court invalidated an income tax enacted ca. 1895.

    I’m thinking of this

    https://en.wikipedia.org/wiki/Legal_history_of_income_tax_in_the_United_States#First_income_tax_law

    Where the supreme court ruled in Springer v. United States that an income tax is legal because some how someway it’s not really one. Of course people with way my law understanding can better explain the excuse they came up with.

  25. I have a brilliant friend, a retired scientist, who gets all her general news from Google News while she clicks through for science news. The idea that these justices may just watch MSNBC isn’t impossible.

    Besides the misinformation, much worse is the misunderstanding of the law. Federal and state powers differ extensively. When Sotomayor says that when states won’t act, the federal government must step in, this is a serious legal misstatement.

  26. In my experience very few people are able to argue or reason quantitatively. Most people who talk, write, and think are only able to hand “all”, “some”, and “none”, “a lot” vs “a little”, and essentially argue through rhetoric.

    In real life “all” and “none” are vanishingly rare. And when talking about “some”, it makes a huge difference between “some” being 50% of the total, or 5% of the total, or 0.5% of the total. “A lot” and “a little” are also inherent references to some other number, they can never stand in isolation. This is where quantitative reasoning becomes critical.

    For rhetorically-based argument, most of our public intellectuals, especially those making legal or process arguments, will treat 0.5% as being hugely significant, or treat 50% as a mere detail not worth pettifogging about. When arguing quantitatively you can’t do this. The two proverbs that express this are “penny-wise, pound-foolish” and “straining at gnats while swallowing camels”.

    And this is why SC justices can’t be bothered to pay attention to the difference between “thousands” and “millions”. As rhetorical reasoners, all these words mean to them is “a lot”, and these magnitudes are just synonyms as far as they are concerned.

  27. In my experience very few people are able to argue or reason quantitatively.

    You need to experience the company of people who did not go to law school.

  28. A golden oldie from my hero, John McCarthy:
    ___________________________________

    He who refuses to do arithmetic is doomed to talk nonsense.

    –“The Sayings of John McCarthy”
    http://jmc.stanford.edu/general/sayings.html
    ___________________________________

    The whole page is worth reading. Some quotes are LOL funny.

  30. @Art Deco:You need to experience the company of people who did not go to law school.

    I have. I earned a Ph D in physics, so I spent a lot of time around quantitative people, and I also was in student government, so I spent a lot of time around the law school types, and then later I went into the corporate world, which looks a lot more like law school.

    But even the physicists won’t reason quantitatively about things they aren’t professionally concerned with (one reason so many are so far to the Left). When you can get them to do so, sometimes the light goes on. They either put it all in the memory hole and go right back to what they previously believed, or they start applying it everywhere and become heretics. I’ve done both at different times.

  32. I think Sotomayor is diabetic, not always well-controlled, which would justify her remote participation.

  33. Kate,

    Yeah, I actually have less problem with that if what you say is true than the mask. I just thought it was interesting that apparently the three without masks were the three most conservative justices.

    And of course if they were wearing anything like the most common masks we all see they accomplish nothing so there is that.

  34. Well “the otherwise latina” of the SCOTUS seems to have some issues unrelated to her pancreas or her lady parts. Those issues most recently were revealed in the oral arguments regarding abortion but she outdid her established wisdom reputation on vaccines and the feds.

  35. The liberal/leftist judges are simply honoring “truth over facts”, which are inherently “unfair”. sarc/off

    Plus, when you reject critical aspects of the external reality within which you exist, “everything is permissible”.

  36. “When Sotomayor says that when states won’t act, the federal government must step in, this is a serious legal misstatement.” Kate

    Sotomayor is not interested in Constitutional restraints. She’s interested in emotional justification of her biases.

  37. These oral arguments reveal that the Federal government is in toto, incompetent. We’re going to have to start over because this degree of dysfunction is not sustainable.

    “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams

  38. Constitutional Restraints themselves merely reflect the biases of some Dead White Males. The Progressives are our enemies and see us as such. They have huge blind spots re biology, human nature, economics, and many other things.

    But about Power… they get it and our side does not get it and spends all its time sperging about Principles. If you want principles, you have to do unprincipled stuff and then impose a new morality which defines your end runs around the enemy as being, well, Principled.

    Per Schmitt: ‘Sovereign is he who decides the exception.’

    That would be the Left at present, wouldn’t it?

    “’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

    Sotomayor may be an emoting innumerate air head… but she’s a Ruling Emoting Innumerate Airhead. She’s one of the select few who gets to decide the Exceptions.

    If you’re looking for Universal Principles, I recommend War, Death and Taxes.

  39. I always thought the Mann Act unconstitutional. Who decides what is an immoral act? If I go with a woman of even from my home to Nevada, where her office is, does that violate the Mann Act?If every state welcomes prostitution, does that nullify the Mann Act?

  40. Z deploys his smoke screen when he talks about progressives as “our” enemies; the enemy of your enemy is not the same thing as your friend or compatriot. Z’s agenda is not based in US history or the Constitution. Caveat emptor..

  43. Who decides what is an immoral act? In a representative democracy, the people, acting through their elected representatives. That was easy.

  45. More smoke from Z; you brought the dogs into this thread.

    Your selective amnesia Z, from all your comments deriding US history and the Constitution and then to talk about the progressives as “our enemies.” As if folks here don’t recognize the threat posed by the left.

    Such a tool.

  48. Kate, Frederick, and Zaphod on prog’s denialism of nature: right on! Geoffrey Brittain says “These oral arguments reveal that the Federal government is in toto, incompetent.”

    I’ve been alarmed and distressed myself, like most of us here. But is there any argument against our High Dudgeon outrage? Any mitigation or explanation that’s gotten overlooked? There is.

    While I think Sotomayor is the dumb Karen of the SCOTUS, and needs her Security State daddy without reservation or restraint (which RBG did raise, at least sometimes), I believe the oral record of Justice Breyer shared by C-Span found him catching himself and his magnitude mistake quickly re-framed as a hypothetical.

    But there is more. This case and the need for all deliberate speed came up during the holidays. Official Washington still isn’t in session and two quick snowstorms added to the overjoyed Omicron viral blizzard, you can clearly see traditional Covid-19 pandemic distancing etiquette at work: not just face masks, but by remote oral testimony and questioning by Zoom aided digital technology.

    Why does this cumulatively matter? While Zaphod’s point about Leftist utopianism and wishful “thinking” undoubtedly governs almost half of the High Court, Clerks of Court normally have a huge influence upon each Justice. Not this occasion.

    Clerks typically research and outline first drafts of opinions, or write them entirely at worst.

    Given all of these exigent, circumstances — rapidity, pandemic rules, holidays and winter storms — I’d be very surprised if even half of Court Clerks we’re participating because I imagine that most are still away in holidays.

    Therefore, did the Justices receive their normal quota of staff prep? I highly doubt it.

    But just like Obama, these prog Rulers have no impressive Robes of Reignment, visible nor invisible, for anyone to admire. Their incompetence looks nude to admirers too, not just unsympathetic critics.

  49. Who decides what is an immoral act?

    Start with the people who wrote your state penal code, which, if it’s like mine, has provisions in it defining statutory rape, sodomy, and molestation as crimes; defining consensual sodomy as a crime; defining adultery as a crime; defining every aspect of the trade in child pornography a crime. While we’re at it, that code defines larceny, fraud, and assault as crimes. You think we shouldn’t ‘legislate morality’? What Robert Bork said: “we legislate little else”.

  51. To be charitable, I think Breyer simply misspoke and meant thousands instead of millions. On the other hand Sotomayor is an embarrassment to the Court and to the leftist cabal as well. Fortunately she is currently in the minority.

  52. @om:You are going to make Libertarians very unhappy

    The ones made of straw, undoubtedly. Libertarians, like anyone who desires legislation, also want to “legislate their morality”. But the ones not made of straw would say that libertarian morality gives everyone, libertarian and non-libertarian alike, the widest scope to practice their own morality without being able to imposes it on others.

    There are those whose personal morality entails constraining the morality of others, of course: for example those who, not content with being abstinent themselves, made alcohol illegal. Reading Chesterton on this it was clear that he believed the movement to legislate temperance was not about alcohol but control of the lower classes of society. The way our politicians today have required mandates and lockdowns for everyone that they violate themselves tell me that something similar is going on today with COVID.

  53. @stu:To be charitable, I think Breyer simply misspoke and meant thousands instead of millions.

    This goes right to my point. A quantitative thinker would have great difficulty making this mistake, it’s like saying “miles” instead of “inches”. It sounds very wrong. A verbal thinker thinks of thousands, millions, billions etc as essentially synonyms for “lots” and so nothing grates on his ear.

    But not even in law school do people misspeak “inches” for “miles”, because in daily life these units almost never overlap: inches describe things we can hold in our hands and miles are largely used in association with travel between places. (Of course you CAN switch the two but it seems weird because most of us do not regard them as measuring “the same thing” even though they do.) You can be a purely verbal thinker and never mistake these two because they are so closely tied to non-quantitative concepts.

  55. Breyer did say ‘three quarters of a million’ earlier I heard it in the audio on the Megyn Kelly I linked to on Jan. 7 at 3:28 pm but he may have said ‘750 million’ later but I am willing to give an 83 year old man a slight benefit of the doubt that him simply misspoke.

    Sotomayor is a different case.

  56. TJ

    Interesting point about the clerks. That may be at least part of the problem. But it’s disturbing that, even without clerks’ help, some of the justices are so woefully and abysmally misinformed on COVID.

  57. I don’t care if Breyer misspoke. I don’t understand why he is stating numbers at all unless he is referring to something in the case work. What is he doing?

  58. They can ask whatever they want and say whatever as well. May not be prudent, wise, or intelligent, but currently they aren’t really accountable after all.

    Constitutional ammendments, via a Convention of States could reel them in, maybe.

  59. om on January 8, 2022 at 11:35 am said:
    The devil is always in the details, to be precise.

    While the angels seek to be accurate. 🙂
    Very few angels in the current news media.

  60. “Are some of our SCOTUS justices dunces?”

    Do bears shit in the woods? Is the Pope Catholic? Oh wait …

  61. Even my liberal lawyer sister watched the proceedings and said it looked like the liberal justices got their info from CNN and MSNBC.

  62. @ huxley > in re John McCarthy’s list of aphorisms.
    I liked this one, which seems relevant to a number of recent topics.

    “Here’s a way to tell scientific intelligence from legal intelligence. Both may start from the idea that something cannot be done and think up arguments to explain why. However, it is possible that the scientist may discover a flaw in the argument that leads him to change his mind and discover a way to do it. He will be pleased. The legal thinker will merely try to patch the flaw in the argument, because once he has chosen a side, all his intelligence is devoted to finding arguments for that side.” – JMC 1987

  63. @ TJ > “Given all of these exigent, circumstances — rapidity, pandemic rules, holidays and winter storms — I’d be very surprised if even half of Court Clerks we’re participating because I imagine that most are still away in holidays.

    Therefore, did the Justices receive their normal quota of staff prep? I highly doubt it.”

    I’m leaning toward this explanation, as I don’t remember ever reading this many complaints about ignorance among the justices.
    It’s also the case that Congress-critters don’t write legislation, their staffs (and favored lobbyists) do.
    However, it would be more reassuring if The Robes showed a greater acquaintance with the basic facts of the situation, outside the briefs they are given.

    https://babylonbee.com/news/nations-fate-now-in-the-hands-of-8-dummies-and-clarence-thomas

  64. I didn’t want these good comments to get lost over on the open thread.

    Kate on January 7, 2022 at 1:08 pm said:
    The other problem with Sotomayor’s statistics, besides inaccuracy, is that the question before the Court is not what is wise policy, but whether OSHA has the legal authority to impose such policies.

    Griffin on January 7, 2022 at 1:25 pm said:
    Kate,
    Yes, and Gorsuch really focused on that. If Kavanaugh and Barrett vote with the four leftists this will be an astonishing betrayal of so many people that fought tooth and nail for them to be confirmed.

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