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THE SUPREME COURT’S CONTEMPT FOR FACTS IS A BETRAYAL OF JUSTICE  
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Scientific American Editorial Board
July 10, 2024
Scientific American
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_ 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. _

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When the Supreme Court’s _Ohio v. EPA_ decision
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Environmental Protection Agency limits on Midwestern states polluting
their downwind neighbors, a sad but telling coda came in Justice Neil
Gorsuch’s opinion. In five instances, it confused nitrogen oxide, a
pollutant that contributes to ozone formation, with nitrous oxide,
better known as laughing gas
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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.

Public trust in the Supreme Court, already at a historic low
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is now understandably plunging. In the last four years, a reliably
Republican majority on the high court, led by Chief Justice John
Roberts, has embarked on a remarkable spree against history and
reality itself, ignoring or eliding facts in decisions
involving school prayer
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health
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change
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water
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not to mention the laughing gas case.

The crescendo to this assault on expertise landed in June, when the
majority’s _Chevron_ decision
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to the courts regulatory calls that have been made by civil servant
scientists, physicians and lawyers for the last 40 years. (With
stunning understatement, the Associated Press called it
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far-reaching and potentially lucrative victory to business
interests.” No kidding.) The decision enthrones the high court—an
unelected majority—as a group of technically incompetent, in some
cases corrupt
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politicos in robes with power over matters that hinge on vital facts
about pollution
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medicine, employment and much else. These matters govern our lives
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The 2022 _Kennedy v. Bremerton School District _school prayer
decision hinged on a fable of a football coach offering “a quiet
personal prayer
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the words of the opinion. In reality, this coach was holding overt
post-game prayer meetings
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the 50-yard line, ones that an atheist player felt compelled to attend
to keep off the bench. Last year’s _303 Creative v.
Elenis_ decision, allowing a Web designer to discriminate against gay
people, revolved entirely on a supposed request for a gay
wedding website that never existed
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(supposedly) came from a straight man who never made the request
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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
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July 1, the legal writer Chris Geidner called attention to a more
profound “important and disturbing reality
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current majority’s relationship to 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.”

The “laughing gas” decision illustrates this nicely: EPA had asked
23 states to submit a state-based plan to reduce 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 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 that pollution that will cause an estimated 1,300
premature deaths [[link removed]] in 2026 keeps on
coming. Where fantasy prayers and fake cakes tip the scales of justice
on one side, “an underdeveloped theory that is unlikely to succeed
on the merits
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as described in a rare dissent from (Republican) Justice Amy Coney
Barrett, swung things the other way for polluters. The decision
seems aimed at hobbling the EPA
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thoroughly respond to every inane public comment submitted by
polluters in perpetuity before issuing a regulation, warns climate
writer Robinson Meyer of HeatMap.

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 the Court
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anointing itself the economy’s czar.

Science is dismissed and disdained in this war on reality. For
example, a late June decision upholding bans on homeless people
sleeping in public places
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human biology, as the dissent noted
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A frankly despicable decision
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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, with more than 400
(400!) people shot and 60 killed this way in Las Vegas in 2017
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not truly automatic weaponry. That’s despite research showing a
growing trend
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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 only covered hazards found solely in
the workplace
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somehow excluding, say, forced air-breathing with infected employees),
and ignored the deeper reality that vaccines save lives
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The majority justices doubtless contributed to the hundreds of
thousands of deaths of unvaccinated people
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the U.S. from COVID with their decision.

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

The 2022 _Dobbs_ case ended the right to abortion, a basic 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
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The Court waved away concerns
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predictable health impacts
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later, news reports abound of women facing dangerous pregnancies
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people in states with stringent abortion restrictions reporting worse
mental health
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up almost 13 percent
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Texas.

The court’s July 1 decision
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Donald Trump
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prosecution for “official acts” undertaken in office as president
means, “It can never again be said that in America ‘no man is
above the law
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retired federal judge J. Michael Luttig noted in response to the
decision. No evidence of an official act undertaken as part of a
criminal unofficial one is permitted, the Court added, as well as no
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, speaking
at a murder trial
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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,” added Adams.

Not so for our Supreme Court majority. Before taking office, justices
must take an oath
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“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
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justices of the Court’s majority have broken their oath, made to
both the Constitution and the American people.

* SCOTUS
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* Science
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* Dobbs v. Jackson
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* Chevron
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