16 May 2022


A non-headliner opinion this morning from the Supreme Court indirectly, and perhaps inadvertently, implicates some of the Problems with the "draft opinion" reversing Roe. In Patel v. Garland, No. [20]20–979 (16 May 2022), Justice Barrett for a 5–4 majority held:

Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under [the Immigration and Nationalization Act, 8 U.S.C.] § 1255 and the other provisions enumerated in § 1252(a)(2)(B)(i). We therefore affirm the judgment of the Court of Appeals. (slip op. at logical 21, typography corrected)

in contrast to Justice Gorsuch's dissent, which objects:

Does a federal court have statutory authority to review and correct a BIA decision holding an individual ineligible for relief when that decision rests on a glaring factual error? Today, the majority insists the answer is no. It does not matter if the BIA and immigration judge in Mr. Patel’s case erred badly when they found he harbored an intent to deceive state officials. It does not matter if the BIA declares other individuals ineligible for relief based on even more obvious factual errors. On the majority’s telling, courts are powerless to correct ureaucratic mistakes like these no matter how grave they may be. (slip op. at logical 26).

Comparison with the draft "anti-Roe" opinion is highly instructive — and highly frustrating. Patel essentially holds that Congress has properly denied the competence of the courts to correct a clear factual error "found" by the immigration machinery1 (however much minimized by the majority). In a disturbing parallel, the draft opinion also denies the competence of the courts to correct a clear factual error — this time by a legislative body, this time in imposing the nonmedical legislators' nonscientific2 and nonprofessional-ethics-inculcated views upon questions that if not purely medical, are certainly intertwined with (and IMNSHO dominated by) the scientific knowledge and professional ethics that are precisely what is missing from the actual decisionmakers.3

There is, however, one kind of authority that is directly relevant here. Patel and the draft "anti-Roe" opinion both rest upon a form of infallibility through finality — forms of unreviewability. Those with any knowledge at all of the actual context of the half-millennium preceding the Founders would presume — correctly, as it happens — that the Founders did not believe any human opinion was both truly final and without exception.4 Now, I'm not at all saying that there's something inherently wrong with a substantial majority of the Court coming from traditions in which one just did not question proclamations from the religious hierarchy, because people can learn from the errors of others (and judges hopefully more than most); but if the miter5 fits…

The problem in Patel is fairly simple: A chain of native-American-English-speaking, fully-Americanized "factfinders" judging the credibility of a claim of inadvertent error concerning a related-but-non-core checkbox response on a government form with inscrutably complex instructions made by someone who is neither native-American-English-speaking nor, by definition, fully Americanized. That chain became final before review by those with a wider experience in judging credibility (that is, the judiciary… which is far from infallible on this itself, as it's composed of fallible humans), because yet another body of the fully-Americanized native speakers had another agenda. Eppur si muove (and the less said for the legislative narcissism and Dunning-Kruger problems here, the less inclined I'll be to puke).

  1. With all due respect to the hard-working bureaucrats Justice Gorsuch cites, they're fallible human beings. Some of them — too damned many of them, especially the closer one gets to the "political appointee" levels — intentionally so. This aspect of competence-of-review was evaded not just in the two opinions from the Court this morning, but in all of the papers all the way down. The silent presumption of simultaneous universal good faith and universal competence in the various decisionmakers bugs me… bugs me very much as a survivorveteran of those processes on the inside. Bluntly, it does not show respect for a coordinate branch of government to rubber-stamp; the time for all deliberate speed has "run out" long ago. Because that is precisely what is at the core of Korematsu, Dred Scott and every other self-inflicted judicial wound, even when later "corrected": Forgetting the second part of "Trust, but verify."
  2. That a few legislators have qualifications doesn't keep them from being ideologues with other agendas who are hiding behind a fallacious appeal to authority — especially since the closest most of them come to "authority" is "allied field," not "same field." That doesn't go just for "reproductive health care," either; environmental policy is not being set by biologists and/or geologists, energy policy is not being set by engineers or indeed any scientists at all, military justice policy is not being set by those with command experience… I could go on for quite a while. This is, in fact, the point of the "administrative state": Expertise in the process of governance, and in getting elected to governance, has a strong tendency in modern societies to — at best — crowd out competence in anything else. Sadly, the converse is too-often true, especially when trying to deal with matters that have overlapping core-competence fields (like, say, "pandemic response," which necessarily includes virology, epidemiology, vaccine manufacture, vaccine distribution, and the logistical contexts of all of the above — and that's the vastly oversimplified illustration!).

    tl;dr Government by soundbite sucks. It's what we have, though, thanks in large part to legal/judicial competence deficits in even basic algebra.

  3. That so damned many of these legislative leaders claim competence in other fields — not just "politics" but "religion" — that have internal interests utterly inconsistent with data-driven analysis, hypothesis testing, theory formation, and constant testing of assumptions should give one pause. Or cause existential dispair.
  4. The "dishonorability," deception, and at its core encouragement of the sin of oathbreaking in Revolutionary War-era espionage (enthusiastically endorsed and engaged in by most of the Founders with substantial personal contact) is just one example.
  5. It is worthy of consideration on this point to note that positions of authority within religious hierarchies — not just Catholicism, not just Christianity — are overwhelmingly reserved for the preselected Right Kind of People. And that is anathema to democracy of all flavors.