Plata's Republic: Justice Scalia and the subversive normality of politically motivated reasoning . . . .
. . . Plata's Republic . . .
Civis: It is “fanciful,” you say, to think that three district court judges “relied solely on the credibility of the testifying expert witnesses” in finding that release of the prisoners would not harm the community?
Cognoscere Illiber: Yes, because “of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.”
Civis: “Of course” judges with “different policy views” would have formed different beliefs about the consequences if they had evaluated the same expert evidence? Why? Surely the judges, like all nonspecialists, would agree that these are matters outside their personal experience. Are you saying the judges would ignore the experts and decide on partisan grounds?
Cognoscere Illiber: No. “I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments” on such matters. The “expert witnesses” here were of the sort trained to make “broad empirical predictions”—like whether “deficit spending will . . . lower the unemployment rate” or “the continued occupation of Iraq will decrease the risk of terrorism.”
Civis: But people normally assert that their policy positions on criminal justice, economic policy, and national security are based on empirical evidence. It almost sounds as if are you saying things are really the other way around—that what they understand the empirical evidence to show is “necessarily based in large part upon policy views.”
Cognoscere Illiber: Exactly what I am saying! Those sorts of “factual findings are policy judgments.” Thus, empirical evidence relating to the consequences of law should be directed to “legislators and executive officials”—not “the Third Branch”—since in a democracy it is the people’s “policy preferences,” not ours, that should be “dress[ed] [up] as factual findings.”
Civis: Ah. Thanks for telling me—I had been naively taking all the empirical arguments in politics at face value. Silly me! Now I see, too, that those naughty judges were just trying to exploit my gullibility about policy empiricism. Shame on them!
 Plata, 131 S. Ct. at 1954 (Scalia, J., dissenting).
 Id. at 1954-55.
 Id. at 1954.
 Id. at 1955.
* * *
Brown v. Plata was among the most consequential decisions of the 2010 Term—in multiple senses. In Plata, California attacked an order, issued by a three-judge federal district court, directing the state to release more than 40,000 inmates from its prisons. It was not disputed that California prisons had for over a decade been made to store double their intended capacity of 80,000 inmates. The stifling density of the population inside—“200 prisoners . . . liv[ing] in a gymnasium,” sleeping in shifts and “monitored by two or three guards”; “54 prisoners . . . shar[ing] a single toilet”; “50 sick inmates . . . held together in a 12- by 20-foot” cell; “suicidal inmates . . . held for prolonged periods in telephone-booth sized cages” ankle deep in their own wastes—was amply documented (with photographs, appended to the Court’s opinion, among other things). The awful effect on the prisoners’ mental and physical health was indisputable, too (“it is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days”). These conditions, the district court concluded, violated the Eighth Amendment. The district court also saw that there was no prospect whatsoever that the state, having repeatedly rejected prison-expansion proposals and now in a budget crisis, would undertake the massive expenditures necessary to increase prison capacity and staffing. Accordingly, it ordered the only relief that, to it, seemed, possible: the release of the number of inmates that the court deemed sufficient to bring the prison’s into compliance with minimally acceptable constitutional standards.
The Supreme Court, in a five to four decision, affirmed. The major issue of contention between the majority and dissenting Justices was what consequence the ordered prisoner release would have on the public safety, a consideration to which the district court was obliged to give “substantial weight’” by the Prison Litigation Reform Act of 1995. The district court devoted 10 days of the 14-day trial to receiving evidence on this issue, and concluded that use of careful screening protocols would permit the state to release the necessary number of inmates “in a manner that preserves public safety and the operation of the criminal justice system.”
The determinations underlying this finding, Justice Kennedy noted in his majority opinion, “are difficult and sensitive, but they are factual questions and should be treated as such.” The district court had “rel[ied] on relevant and informed expert testimony” by criminologists and prison officials, who based their opinion on “empirical evidence and extensive experience in the field of prison administration.” Indeed, some of that evidence, Justice Kennedy observed, had “indicated that reducing overcrowding in California’s prisons could even improve public safety” by abating prison conditions associated with recidivism. Like its other findings of fact, the district court’s determination that the State could fashion a reasonably safe release plan was not “clearly erroneous.”
The idea that the district court’s public safely determination was a finding of “fact” entitled to deferential review caused Justice Scalia to suffer an uncharacteristic loss of composure. Deference is due factfinders because they make “determination[s] of past or present facts” based on evidence such as live eyewitness testimony, the quality of which they are “in a better position to evaluate” than are appellate judges confined to a “cold record,” he explained. The public-safety finding of the three-judge district court, in contrast, consisted of “broad empirical predictions necessarily based in large part upon policy views.” “The idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful,” Scalia thundered.
Justice Scalia’s reaction to the majority’s reasoning in Plata is reminiscent of Wechsler’s to the Court’s in Brown. Like Scalia, Wechsler had questioned whether the finding in question—that segregated schools “retard the educational and mental development” of African American children—could bear the decisional weight that the Court was putting on it. But whereas Wechsler had only implied that the Court was hiding its moral-judgment light under an empirical basket—“I find it hard to think the judgment really turned upon the facts [of the case]”—Scalia was unwilling to bury his policymaking accusation in a rhetorical question. “Of course they [the members of the three-judge district court] were relying largely on their own beliefs about penology and recidivism” when they found that release was consistent with—indeed, might even enhance—public safety, Scalia intoned. “And of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.” “[I]t is impossible for judges to make ‘factual findings’ without inserting their own policy judgments, when the factual findings are policy judgments.”
Justice Scalia’s dissent is also akin to the reaction to “empirical factfinding” in the Supreme Court’s abortion jurisprudence. Justice Blackmun’s majority opinion in Roe v. Wade cited “medical data” supplied by “various amici” to demonstrate that “[m]odern medical techniques” had dissolved the state’s historic interest in protecting women’s health. “[T]he now-established medical fact . . . that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth” supported recognition of an unqualified right to abortion in that period. Ely, among others, challenged the Court’s empirics: “This [the medical safety of abortions relative to childbirth] is not in fact agreed to by all doctors—the data are of course severely limited—and the Court's view of the matter is plainly not the only one that is ‘rational’ under the usual standards.” In any case, “it has become commonplace for a drug or food additive to be universally regarded as harmless on one day and to be condemned as perilous on the next”—so how could “present consensus” among medical experts plausibly ground a durable constitutional right?
It can’t. “[T]ime has overtaken some of Roe’s factual assumptions,” the Court noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. “[A[dvances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, and advances in neonatal care have advanced viability to a point somewhat earlier.” Accordingly, culturally fueled enactments of and challenges to abortion laws continue—repeatedly confronting the Justices with new empirical questions to which their answers are denounced as motivated by “personal values.” * * *
The only citizens who are likely to see the Court’s decision as more authoritative and legitimate when it resorts to empirical fact-finding in culturally charged cases are the ones whose cultural values are affirmed by the outcome. * * *
This factionalized environment incubates collective cynicism—about both the political neutrality of courts and about the motivations behind empirical arguments in policy discourse generally. Indeed, Justice Scalia’s extraordinary dissent in Plata synthesizes these two forms of skepticism.
It was “fanciful,” Scalia asserted, to think that the three district court judges “relied solely on the credibility of the testifying expert witnesses.” One might, at first glance, see him as merely rehearsing his standard diatribe against “judicial activism.” But this is actually a conclusion that Scalia deduces from premises—ones that don’t enter into his standard harangue—about the nature of empirical evidence and policymaking. The experts’ testimony, he explains, dealt with “broad empirical predictions”—ones akin to whether “deficit spending will . . . lower the unemployment rate,” or whether “the continued occupation of Iraq will decrease the risk of terrorism.” For Scalia, the beliefs one forms on the basis of that sort of evidence are “inevitably . . . based in large part upon policy views.” It follows that “of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.” “I am not saying,” Justice Scalia stresses, “that the District Judges rendered their factual findings in bad faith.” “I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments” when assessing empirical evidence relating to the consequences of governmental action. , when the factual findings are policy judgments.”
In effect, Scalia is telling us to wise up, not to be snookered by the Court. Sure, people claim that their “policy positions” on matters such as crime control, fiscal policy, and national security are based on empirical evidence. But we all know that things are in fact the other way around: what one makes of empirical evidence is “inevitably” and “necessarily based . . . upon policy views.” At one point, Scalia describes the district court judges as having “dress[ed]-up” their “policy judgments” as “factual findings.” But those judges weren’t, in his mind, doing anything different from what anyone “inevitably” does when making “broad empirical predictions”: those sorts of “factual findings are policy judgments.” Empirical evidence on the consequences of public policy should be directed to “legislators and executive officials” rather than “the Third Branch,” Scalia insists. The reason, though, isn’t that the former are better situated to draw reliable inferences from the best available data. On the contrary, it is that it is a conceit to think that reliable inferences can possibly be drawn from empirical evidence on policy consequences—and so “of course” it is the “policy preferences” of the majority, rather than those of unelected judges, that should control.
It is hard to say what is more extraordinary: the substance of Scalia’s position or the knowing tone with which he invites us to credit it. One might think it would be shocking to see a Justice of the Supreme Court so brazenly deny the intention (capacity even) of democratically accountable officials to make rational use of science to promote the common good. But Scalia could not expect his logic to persuade unless he anticipated that readers would readily concur (“of course”) that empirical arguments in policy debate are a kind of charade.
Scalia, of course, had good reason to expect such assent. His argument reflects the perspective of someone inside the cogntively illiberal state—who senses that motivated reasoning is shaping everyone else’s perceptions, and who accepts that it must also be shaping his, even if at any given moment he is unaware of its influence. We have all experienced this frame of mind. The critical question, though, is whether we really believe that what we are experiencing when we feel this way is inevitable and normal—a style of collective engagement with empirical evidence that should in fact be treated as normative, as Scalia asserts, for the performance of our institutions. I don’t think that we do . . . .