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Opinion

July 10, 2024

5 min read

THE SUPREME COURT’S CONTEMPT FOR FACTS IS A BETRAYAL OF JUSTICE

The Supreme Court majority’s recent decisions about homelessness, public health
and regulatory power, among others, undermine the role of evidence, expertise
and honesty in American democracy

By The Editors edited by Megha Satyanarayana

Lehel Kovács

October 2024 Issue
Politics
Opinion

A sad but telling coda to the Supreme Court’s misrule came this summer, when the
Ohio v. EPA decision blocked Environmental Protection Agency limits on pollution
from Midwestern states affecting their downwind neighbors. In five instances,
Justice Neil Gorsuch’s opinion confused nitrogen oxide, a pollutant that
contributes to ozone formation, with nitrous oxide, better known as laughing
gas.

You can’t make this stuff up. This repeated mistake in the 5–4 decision
exemplifies a high court not just indifferent to facts but contemptuous of them.



As the first Monday in October dawns, starting another Supreme Court term,
public trust in the justices, already at a historic low, is now understandably
plunging. In the past four years a reliably conser­vative majority on the high
court, led by Chief Justice John Roberts, has embarked on a remarkable spree
against history and reality, ignoring or eliding facts in decisions involving
school prayer, public health, homophobia, race, climate change, abortion and
clean water, not to mention the “laughing gas” case.

This assault on expertise reached its crescendo in June, when the majority’s
Chevron decision arrogated to the courts regulatory calls that have been made by
civil servant scientists, physicians and lawyers for the past 40 years. (With
stunning understatement, the Associated Press called it “a far-reaching and
potentially lucrative victory to business interests.”) The decision enthrones
the high court—an unelected majority—as a group of technically incompetent, in
some cases corrupt, politicos in robes with power over matters that hinge on
vital facts about pollution, medicine, employment, and much else. These matters
govern our lives.



The 2022 Kennedy v. Bremerton School District school prayer decision hinged on a
fable of a football coach offering “a quiet personal prayer,” in the words of
the opinion. In reality, this coach was holding overt postgame prayer meetings
on the 50-yard line, ones that an atheist player felt compelled to attend if he
wanted to stay off the bench. Last year’s 303 Creative v. Elenis decision,
allowing a web designer to discriminate against gay people, revolved entirely
around a request for a gay-wedding website that never got built, supposedly from
a man who is straight and says he never made the request. Again, you can’t make
this stuff up—unless you are on the Supreme Court. Then it becomes law.

Summing up the court’s term on July 1, legal writer Chris Geidner called
attention to a more profound “disturbing reality” of the current majority’s
relationship with facts. “When it needs to decide a matter for the right, it can
and does accept questionable, if not false, claims as facts. If the result would
benefit the left, however, there are virtually never enough facts to reach a
decision.”


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The “laughing gas” decision illustrates this nicely: The EPA had asked 23 states
to submit state-based plans for reducing their downwind pollution. Of those, 21
proposed to do nothing to limit their nitrogen (not nitrous) oxide emissions.
Two others didn’t even respond to that extent. Instead of telling the states to
cut their pollution as required by law, the court’s majority invented a new
theoretical responsibility for the EPA—to account for future court cases keeping
a state out of its Clean Air Act purview—and sent the case back to an appeals
court.

That means pollution that will cause an estimated 1,300 premature deaths in 2026
keeps on coming. Whereas fantasy prayers and fake websites tipped the scales of
justice on one side, “an underdeveloped theory that is unlikely to succeed on
the merits,” as described in a rare dissent from Justice Amy Coney Barrett,
swung things the other way for polluters. The decision seems aimed at hobbling
the EPA by demanding it thoroughly respond to every inane public comment
submitted by polluters in perpetuity before issuing a regulation, warns climate
writer Robinson Meyer.



Climate change, in particular, seems to draw out the court’s taste for fiction.
The 2022 West Virginia v. EPA decision that halted efforts to limit greenhouse
gas emissions from coal power plants, another 6–3 opinion, saw the majority
enshrine a “major questions” doctrine. This legal theology, conjured from the
penumbras and emanations of past antiregulatory decisions, insists that sizable
regulations require patently-impossible-to-acquire congressional authorization.
This is a “power grab” by a court anointing itself the economy’s czar.

Science is dismissed and disdained in this war on reality. For example, a
decision in late June upholding bans on unhoused people sleeping in public
places criminalizes human biology, as the dissent noted. A frankly despicable
decision this year to legalize bump stocks turned on gun fetishists’ scholastic
argument that holding your finger taut while a rifle bucks around it pumping
bullets into men, women and children—the way more than 400 (400!) people were
shot and 60 killed in Las Vegas in 2017—is not truly automatic weaponry. That’s
despite research showing a trend of greater fatalities in mass shootings,
enabled by just such technology.



The 2022 vaccine-mandate decision, another 6–3 masterpiece, turned on sophistry
that workplace rules cover only hazards found solely in the workplace (but
somehow excluding, say, forced air sharing with infected employees) and ignored
the deeper reality that vaccines save lives. The majority justices doubtless
contributed to the hundreds of thousands of deaths of unvaccinated people in the
U.S. from COVID with their decision.

A Clean Water Act case last year decreed wetlands environmentally protected only
if their waters possess a “continuous surface connection” with a larger body of
water. This invented requirement is wholly at odds with how water and wetlands
actually work, leaving up to half of the country’s protected wetlands now
available for dredging.

The 2022 Dobbs case ended the right to abortion, an essential medical procedure
that helps people manage their own health and bodies and has saved countless
lives. The only arguments against abortion are not scientific but theological.
The court waved away concerns about the very predictable health impacts of
Dobbs. Two years later news reports abound of women facing dangerous pregnancies
and people in states with stringent abortion restrictions reporting worse mental
health. Infant mortality is up almost 13 percent in Texas.



The court’s July 1 decision to immunize Donald Trump from prosecution for
“official acts” undertaken in office while he was president means “it can never
again be said that in America ‘no man is above the law,’”retired federal judge
J. Michael Luttig noted in response to the ruling. No evidence of an official
act undertaken as part of a criminal unofficial one is permitted, the court
added, nor is any inquiry into the chief executive’s motives—both curious
exclusions from criminal investigations that should rest on facts.

“Facts are stubborn things,” observed John Adams in 1770, years ahead of the
American Revolution and his later presidency. He was speaking at a murder trial
of redcoats who fired into a crowd at the Boston Tea Party, before a judge sworn
to serve a king. “Whatever may be our wishes, our inclinations, or the dictates
of our passions, they cannot alter the state of facts and evidence: nor is the
law less stable than the fact,” Adams added.

Not so for our Supreme Court majority. Before taking office, justices must take
an oath to “administer justice without respect to persons, and do equal right to
the poor and to the rich, and that I will faithfully and impartially discharge
and perform all the duties.” In rejecting facts to please their political
party—and their patrons—the justices of the court’s majority have broken their
oath, made to both the Constitution and the American people.

Rights & Permissions

More by The Editors
This article was originally published with the title “A Supreme Betrayal of
Justice” in Scientific American Magazine Vol. 331 No. 3 (October 2024), p. 54
doi:10.1038/scientificamerican102024-50df4LRxvqMYITJDmNFhwW
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