Does the Supreme Court have an aversion to math? An essay on the website five thirty eight makes a case that some Supreme Court justices are reluctant to take math and statistics seriously. In a case challenging part as in gerrymandering in Wisconsin, gilv. Whitford, Democrats proposed a test, relying in part on advanced statistical techniques, including a measure known as the efficiency gap, to create a standard to separate
unconstitutional maps from legitimate ones. Listening to arguments in the case in June, it seemed that an aversion to math cut across political divides. Here are Chief Justice John Roberts and Justice Steven Bryer. It is just not It seems a palatable answer to say the ruling was based on the fact that e G was greater than seven percent. That doesn't sound like language in the Constitution. And it may be simply my educational background, but I can only
describe a sociological compulty book. I think the hard issue in this cases are their standards manageable by a court, not by some group of social science political x you know, computer experts. When I read all that social science stuff and the computer stuff, I said, well, what is there a way of reducing it to something that's manageable? Joining me is Josh Douglas, professor at the University of Kentucky
Law School. Well, Josh, are the justices allergic to math? Well, we'll find out when it comes to this decision, of course, But it seems strange that the justices would say they're having a version to math in this instance when they certainly do use, or at least historically have used social science and math formulas in redistioning cases, as well as
all other sorts of constitutional adjudication. So um, although the current crop of justices might feel like in this case they the math is going to be complicated, that's historically not what the Court has ever really done. Is there any way to make a rule in a Gerryman daring case without using some kind of formula? I don't think so. I mean, because you know, the one of the principal areas of redistricting is one person, one vote, this notion
that everyone's vote is worth the same amount. And the way you figure that out is you determine if there's the same number of voters in each district. That's math that's taking the total number of voters and dividing by the number of districts, and that gives you a number of how many voters should be in each district to
ensure that everyone's vote counts the same or roughly. And the court, you know, for decades has said, well, you should be close to mathematical equality in each district, but you can have some level of deviation, and some cases have gone around a ten percent level where you can be ten percent above or below the average size district or what you should be. So that's all math. You know. Entering the political thicket with redistricting case is involves all
those sorts of calculations. Now there's a breaking news crossing the Bloomberg terminal. The Supreme Court has dismissed the remaining Trump travel band case. The Supreme Court has dismissed the last Trump travel band case. Will have more on that coming up, Josh. Justice Roberts seemed to be concerned that using a formula makes it seem to the public as if the Court isn't relying on legal principles, and that something would be based on democrats, democrats or Republicans to
the public. Yeah, you know, I'm not sure what to make of that, because I don't think the ruling would be the mass says the Democrats win or of the Republicans win. The ruling would be that the equal protection cause forbids drawing districts that are so skewed toward one side or another. How do we know they're skewed? We know because the performance of those districts would uh ensure one side wins in an election. Um. But that's not math.
That's dictating the constitutionists the constitution dictating fairness in our elections. So I think what the Chief is not doing is linking what the math is showing. And it simply the mathematical formulas are showing the unfairness, and the unfairness is what's apparently unconstitutional. And that's what the public already is
relying on. I mean, so many of so much of the public already thinks redistarcing is unfair, that that the politicians are drawing the lines in order to help themselves win. Uh So the public gets this. The question is will the court understand that this particular formula is one way in which to show that on constitutionality. I admit that I'm allergic to math and I think many lawyers say that I would have gone to business school, but I'm allergic to math. So I went to law school, and
you're the Chief Justice saying maybe it's my background. So is there that as well that as lawyers, unless we're in certain fields, we're not you know, looking, we're not math geniuses. Let's say, yeah, I think that's part of it. I mean, certainly my students at the law school seem to have an aversion to math, and you know they grown when when we have a day on redistricting in which I do what I call sixth grade arithmetic, which comes from one of these Supreme Court cases on redistricting.
But the reality is that it's not that complicated the math that's involved in these cases. It's fairly simple. You're not looking at sovesticated regression now, so you're basically counting up vote and doing some division um. And so although there may be an initial aversion to the concept of it, when you get down into actually doing it, it's not that complex. And that's exactly what this efficiency got. It's actually not that complex formula. So what about past Supreme courts?
Have we seen this math aversion in other Supreme courts. Certainly there's been some justices who have criticized the Court getting involved in redistricting cases. Uh. In in descent, that's that's the creat aristhmetic term comes from one of these to scents. Um. But I'll say that also, you know, a lot of constitutional law has relied on in other areas, a lot on social science data or mathematical data. I mean,
even Brown versus Board of Education. One of the basis of that decision saying that separate educational facilities are inherently and equal, relying on a lot of social science data. Um. And people criticize it at the times as the extent of the Court was relying on social science, but that
was the underlying evidentiary basis for that holding. We look at the affirmative action area, and you look at you know, admissions for example, a lot of that has to do with social science data and uh and compulations about the likelihood of admissions, etcetera. So, Um, it's not born for the Court to be thinking about social science calculations in a variety of its constitutional unication. Maybe just a little bit uncomfortable when you're used to dealing with ideology and
words in the Constitution. We'll see what happens when they make this decision in this gerrymandering case. Thanks so much for being here on Bloomberg Law. That's Josh Douglas. He's a professor at the University of Kentucky Law School. That's it for this edition of Bloomberg Law. Will be back tomorrow at one pm Wall Street time. We'll have more on the Supreme Court dismissing the remaining Trump travel band case coming up. Thanks to our producer David Suckerman and
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