21 April 2023

A Prediction

I have a prediction in which I am 100% confident concerning today's anticipated Supreme Court action — it might be a decision, it probably won't be — on the pending mifeprestone-availability matter:

There will be chaos, rending of shirts, public protests, and a 70% chance of violence — no matter what it is, no matter what it leaves for later.

Leaving aside legal-doctrine matters — which are not nearly as clear, clean, and obvious as anyone claims, starting with "standing" and going downhill very rapidly from there — the fundamental problem with this controversy is that the wrong subset of scientific data was put in front of multiple decisionmakers… the last two layers of whom, and on all appearances the same for several layers prior to that, were not qualified to render definitive decisions on scientific evidence. Yet that's what they all did.

So far as I've been able to determine, the last-in-the-chain parties qualified to render definitive decisions on scientific evidence did so uniformly in one direction. Then policy, and borderline religious considerations, and electoral politics, got in the way. In a sense, that's inevitable; "people" and "society" are not "science" (Hari Seldon was fundamentally wrong, quite possibly because his… hypothetical biographer?… had little-to-no exposure to non-Western culture and so underestimated the complexity). It's the pretense that's bothersome: Not one of these decisionmakers had the humility to publicly state, in context, that they did not have the expertise to actually evaluate the actual evidence.

And that's a problem.

The entire point of a full judicial opinion is to expose the reasons for that decision for both later review (whether by other courts or, in extreme cases, political rejection of the basis for the decision) and reliance on that reasoning — admittedly, at best by analogy, however close on its surface — in other matters. When that judicial opinion does not qualify itself by admitting that the judge(s) were not evaluating matters for themselves, but relying upon which secondary-source evaluation they found most persuasive, it's too easy to forget the forthcoming refutation of doctrinal shaping of reality:

Eppur si muove, figlia di puttana.

(accompanied by a number of rude gestures that would no doubt draw a contempt citation from the bench). Justice Simplicio, for the majority in a 6–3 (or whatever) decision, will be equally distressed… as will Justice Simplicio in dissent.