[David Bernstein, August 28, 2006 at 8:27am] Trackbacks
Most Scientifically Irresponsible Passage in U.S. Reports:

How about this one, from Plessy v. Ferguson: "Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation." Here you have three incorrect, and quite damaging, "scientific" propositions: (1) That there are "racial instincts"; (2) That "physical differences" account for policies like segregation; (3) and that overturning a law that requires segregation will somehow inevitably result in exacerbated racial tensions. Note that the latter view was consistent with the view of many "Progressive" southerners of the late 19th century, who believed that by separating the races, government-ordered segregation would reduce racial tensions and ultimately benefit African Americans. Of course they were wrong, and the Supreme Court was even more wrong to make this into a scientific proposition. The Court could have, for example, simply state "some people believe this, so we'll defer to legislative judgment." The outcome would have been just as bad, but the Court would not have been endorsing a fallacious "scientific" proposition.

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Ken Arromdee:
Only 1) is a bad scientific claim. The other two are purely political claims, and as such are ineligible as scientifically irresponsible passages.
8.28.2006 10:40am
Eric Rasmusen (mail) (www):
Brown v. Board is an obvious contender, with its "doll study", except, perhaps, that it's possible nobody really believed that study and I'm sure that nobody believed that a new study debunking the doll study would cause the judges to rethink their decision.
8.28.2006 10:40am
plunge (mail):
Bad science can be done with courts, but to get really bad science, what you need is Congress. Just read about the debates over whether the patent office should accept perpetual motion machines. Yes, we actually spent significant amounts of time debating this.

That actually was one of the things that made John Glenn one of my heroes, since he quite simply asked what a scientist would ask: let's measure something and see if this makes any sense at all.
more on that story
8.28.2006 11:12am
Steve Lubet (mail):
It would be useful to distinguish between a scientifically irresponsible opinion (meaning that the writer had reason to know better, and perhaps did know better but still made irresponsible statements for partisan reasons), and a scientifically absurd opinion (which may have been written in good faith reliance on then-existing science, which was later proven erroneous).
8.28.2006 11:16am
M (mail):
The last bit is pretty common to the immigration policies of many countries as well. One stated reason why Australia refused most Jews fleeing Germany before WWII was that letting them in would create a "Jewish problem" in a place where there wasn't one. The British immigration mantra "Firm but fair immigration regulation is the key to good race relations" is also very similar. Of course many in the US still think the same way.
8.28.2006 11:27am
byomtov (mail):
I think Scalia's dissent in Edwards v. Aguillard, which gives credence to "creation science" is pretty grim.
8.28.2006 12:28pm
arthur (mail):
I call Plessy and raise with bradwell v Illinois, 16 Wallace 310 (1873) Bradley, J. Concurring):

. . . nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the oc-cupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.



YOu courld probably find worse somewhere in the morass of Dred Scott opinions.
8.28.2006 12:51pm
N.I.:
Now hold on a minute. While I suspect that "racial instincts" don't exist, I don't think we actually know. For centuries the racial prejudice that permeated most of American culture assumed without proof that there were and today's political correctness demands, also without proof, that there not be. Furthermore, in these politically correct times, it would be impossible to conduct the type of research that would actually answer the question. So I think that from a scientific standpoint the only thing that has changed since the days of Plessy is what our culture demands the answer be; the methodology is exactly the same. Science takes a back seat to majoritarian ideology.

Or, phrased a different way, it was just as intuitively obvious to the authors of Plessy that their premises were right as it is intuitively obvious to us that they were wrong. Well, forgive me for wanting to see a little bit of evidence one way or the other before I commit myself.
8.28.2006 1:18pm
Johh Fee (mail):
Justice Kennedy's opinion in Ashcroft v. ACLU (2004), in which he finds that the Child Online Protection Act (requiring age verification screens for harmful materials on the internet) is not narrowly tailored to protecting minors, because filters are an effective alternative to regulation.
8.28.2006 1:40pm
Mark Field (mail):
The cites to Plessy and Bradwell remind me that the late 19th C was the time for grand, but dubious, pronouncements by the Court on issues like this. Take a look at US v. Reynolds (polygamy case) for similar statements.
8.28.2006 1:47pm
Dilan Esper (mail) (www):
I agree with byomtov. Scalia's dissent in Edwards (which engendered a wonderful reposte from rationalist conservative George Will-- "Good Grief, Scalia!") is pretty depressing. I've always wondered whether Scalia actually believes in what the "creation scientists" were expositing (in which case he isn't nearly as smart as he thinks he is) or whether he was just siding with a conservative cause, standing up to supposed "anti-Christian" bias in our institutions.

Either way, Scalia's dissent in Edwards is neither good science nor good constitutional interpretation.
8.28.2006 4:17pm
WHOI Jacket:
Wasn't it Oliver Wendell Holmes who once remarked in favor of eugenics and forced sterlizations. "We have had many generations of dullards, and enough is enough"? Or something to that effect. (I don't recall the actual quote offhand)
8.28.2006 9:57pm
Uncle Kracker (mail):
Oh, but there are indeed "racial instincts". Don't take my word for it, ask Craig Venter, the guy who maped the human genome.

http://www.edge.org/q2006/q06_12.html#venter

"Revealing the genetic basis of personality and behavior will create societal conflicts."
8.28.2006 11:55pm
Uncle Kracker (mail):
M --

Any country has a right to keep out whatever other group they want. A sovereign nation sets its own immigration policy. I think you can look at the sea of Mexican flags at the recent pro-illegal immigration marches in the U.S., the burning banlieus and towns in France last year, and the British-born Pakistanis who bombed London's subway on 7/7 for backup on the logic of that point -- and the illogic of mass immigration in general.
8.28.2006 11:57pm
Uncle Kracker (mail):
"Note that the latter view was consistent with the view of many "Progressive" southerners of the late 19th century, who believed that by separating the races, government-ordered segregation would reduce racial tensions and ultimately benefit African Americans. Of course they were wrong..."

No they weren't, they were right. One of the big shocks white liberals received after their policies were enacted in the 1960's-70s was that black, even when they had enough money to, had little interest in living among whites.

If diversity was so great, you wouldn't have to force it on people.
8.29.2006 12:00am
scepticalrepub:
The Holmes quote was "three generations of embiciles is enough!" IIRC.

For tendentious discourses on history and science, the two bookends of judicial activism should be the co-winners of this award: Dred Scott and Roe v Wade both have remarkable comments on scientific "fact."
8.29.2006 12:00am
Uncle Kracker (mail):
N.I. writes:


"Now hold on a minute. While I suspect that "racial instincts" don't exist, I don't think we actually know. For centuries the racial prejudice that permeated most of American culture assumed without proof that there were and today's political correctness demands, also without proof, that there not be. Furthermore, in these politically correct times, it would be impossible to conduct the type of research that would actually answer the question."

Actually, N.I., we pretty much do know that there are indeed racial instincts -- that biology informs behavior, political thought, propensity to criminality, IQ -- all sorts of things. Take a look at Harvard psychologist Steven Pinker's "most dangerous idea" for 2006:

http://www.edge.org/q2006/q06_3.html#pinker

Its title is "Groups of people may differ genetically in their average talents and temperaments," the "may" only tossed in there so Pinker doesn't get eaten by the P.C. wolves.

Sorry David, you're wrong. Nature is king. But I loved the "of course" before the false statement.
8.29.2006 12:05am
byomtov (mail):
I think you can look at the sea of Mexican flags at the recent pro-illegal immigration marches in the U.S., the burning banlieus and towns in France last year, and the British-born Pakistanis who bombed London's subway on 7/7 for backup on the logic of that point

And of course waving a flag, rioting, and bombing a subway are all pretty much the same sort of activity. Is that your point?
8.29.2006 12:07pm
Uncle Kracker:
They're all the kind of behavior that breaks up a society, Yomtov -- the kind of behavior that comes from an unselective, self-destructive immigration policy.
8.29.2006 12:17pm
cmn (mail) (www):
I nominate Justice Thomas's assertion in Pasquantino v. U.S. as to "the economic equivalence between money in hand and money legally due." 544 U.S. 349, 356.

I don't claim to be an economist, but isn't that simply wrong? If the two are economically equivalent, what's the justification for charging me interest on my mortgage?

Maybe I'm just bitter for being on the losing side of the case.
8.29.2006 2:15pm
byomtov (mail):
I don't claim to be an economist, but isn't that simply wrong? If the two are economically equivalent, what's the justification for charging me interest on my mortgage?

Yes. If Thomas was saying they are the same he was simply wrong.
8.29.2006 6:40pm