"WHETHER OR NOT SPECIAL EXPERTISE IS NEEDED": ANTI-INTELLECTUALISM, THE SUPREME COURT, AND THE LEGITIMACY OF LAW.

• Author: Kammer, Sean M.

1. INTRODUCTION 287 II. THE SUPREME COURT'S EMBRACE OF "LAW OFFICE HISTORY" 294 A. A "LAW OFFICE HISTORY" OF ORIGINAL CONSTITUTIONAL MEANING 295 B. A "LAW OFFICE HISTORY" OF A "LIVING CONSTITUTION" 304 III. THE ROLE OF LAW IN AMERICAN SOCIETY 313 A. A (BRIEF) HISTORY OF JUDICIAL REVIEW 314 B. A (BRIEF) HISTORY OF THE AMERICAN LEGAL PROFESSION 326 IV. CONCLUSION 332 I. INTRODUCTION

   In 2015, a dozen Democratic voters from Wisconsin sued the state for its drawing of legislative districts following the most recent census in 2010. (1) They specifically alleged the map discriminated against Democratic voters and candidates based on their political beliefs in violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment. (2) This is just one of several similar lawsuits across the country confronting the widespread practice of so-called "partisan gerrymandering," whereby parties which control their state legislatures draw district lines to benefit their own parties. (3) In a trial before

   a three-judge panel, the plaintiffs provided ample evidence that the Wisconsin Government Accountability (WGA) Board drew the maps with an intent to benefit Republican politicians. (4) They also showed, using a metric called the "efficiency gap," that the Board's attempts at benefitting Republicans were highly successful. (5) Developed by Nicholas Stephanopoulos, a law professor, and Eric McGhee, a political scientist, the efficiency gap seeks to measure the number of votes each party "wastes" in a given election cycle, meaning the number of votes received beyond those needed to win a given race, divided by the total votes cast. (6) In their own analysis of elections over a forty-year period, Stephanopoulos and McGhee showed that districting plans had "exhibited steadily larger and more pro-Republican gaps," with the plans in effect as of their writing in 2015 representing "the most extreme gerrymanders in modern history." (7) For its part, Wisconsin's challenged districting plan was found to have produced efficiency gaps far exceeding the national average, specifically in creating "pro-Republican efficiency gaps of 13 percent in 2012 and 10 percent in 2014 -- meaning that Republicans won 13 percent and 10 percent more seats, respectively, than they would have under a neutral map." (8)

   Rather than disputing the plaintiffs' allegations of discriminatory intent, officials on the WGA Board insisted that partisan intent in districting is lawful. (9) On this point, defendants found support in case law, including from the nation's highest court. (10) While the Supreme Court of the United States declared in 1986 that partisan gerrymandering claims were justiciable as potential violations of the Fourteenth Amendment, the Court has yet to strike down a state's districting plan on such a basis. (11) In a pair of cases challenging plans implemented after the 2000 census, the Court held the gerrymandering claims non-justiciable due to the purported lack of a "judicially discernible and manageable standard." (12) As the deciding vote in upholding the lower courts' dismissal of the claims, Justice Anthony Kennedy agreed no standard yet existed, but he explicitly left the door open for such a standard to present itself in the future. (13) Indeed, Stephanopoulos and McGhee developed their "efficiency gap" model, in part, to answer Kennedy's call. (14)

   Lawyers for the State of Wisconsin, including Solicitor General Misha Tseytlin, argued against the "efficiency gap" being used to potentially strike down partisan gerrymandering. (15) In so doing, they did not challenge the test based upon its legitimacy as a political science model or its accuracy in assessing and predicting how certain district maps favor or disfavor one political party over others. (16) Rather, they misconstrued plaintiffs' case as requesting that the Supreme Court "instruct district courts to evaluate the effects of alleged partisan gerrymanders by applying an unbounded variety of metrics," a quandary lower courts would have to "figure [] out" on their own, "presumably only after having subscribed to Political Research Quarterly, American Political Science Review and other essential journals." (17) However, the plaintiffs in this case simply asked the Supreme Court to apply a single metric, one whose application would be as simple as setting a number that district maps could not exceed and then striking down plans that exceed that number. (18) It would be one thing to argue that the "efficiency gap" is scientifically unsound and does not accurately measure the discriminatory effects of districting plans, or even to argue that partisan gerrymandering is inherently non-justiciable, regardless of the evidence showing discriminatory intent and effect. However, it is quite another to suggest it is beyond the judiciary's abilities to understand basic scientific or mathematical concepts.

   During oral arguments, Chief Justice John G. Roberts seemingly accepted Solicitor General Tseytlin's argument in his questioning of plaintiffs' attorney, Erin E. Murphy. (19) During that questioning, he lectured Murphy that "you're taking these issues away from democracy and you're throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook." (20) He presented a hypothetical:

   [if] you're the intelligent man on the street and the court issues a decision, and let's say, okay, the Democrats win, and that person will say: "well, why did the Democrats win?" And the answer is going to be because EG was greater than 7 percent, where EG is the sigma of party X wasted votes minus the sigma of party Y wasted votes over the sigma of party X votes plus party Y votes. And the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country. (21) Now, Roberts was surely right to be concerned about the Supreme Court appearing to be partisan. However, his questioning primarily revealed not a concern for whether the Court might be perceived as taking political sides, as he intended. After all, such a concern is easily rebutted. The answer to the question of "why did the Democrats win" in Roberts' hypothetical is simply that the Democrats received more votes. Roberts' questioning exhibits a rejection of sociological expertise as a basis for producing useful knowledge regarding social institutions.

   Many have expressed concern for Roberts' line of questioning. Most prominently, Eduardo Bonilla-Silva, president of the American Sociological Association, wrote a letter to Roberts on behalf of sociologists. (22) "In an era when facts are often dismissed as 'fake news,'" Bonilla-Silva wrote, "we are particularly concerned about a person of your stature suggesting to the public that scientific measurement is not valid or reliable and that expertise should not be trusted." (23) What Roberts called "gobbledygook," Bonilla-Silva implored, was actually "rigorous and empirical." (24)

   Bonilla-Silva rightly connected Roberts' comments to a broader "anti-expertise" or "anti-intellectual" strand of American political thought. (25) In his seminal work, Anti-intellectualism in American Life, Richard Hofstadter defined anti-intellectual ism as a "resentment and suspicion of the life of the mind and of those who are considered to represent it; and a disposition constantly to minimize the value of that life." (26) By the "life of the mind," Hofstadter meant "the critical, creative, and contemplative side of mind," one he distinguished from the broader concept of intelligence. (27) Indeed, one important element of anti-intellectualism, according to Hofstadter, is the belief that "[t]he plain sense of the common man, especially if tested by success in some demanding line of practical work, is an altogether adequate substitute for, if not actually much superior to, formal knowledge and expertise acquired in the schools." (28) In other words, it is an embrace of "street smarts" to the exclusion of "book smarts." Importantly, "anti-intellectualism" refers not just to a dislike of people who call themselves "intellectuals" (let's be honest; we can be an annoying bunch), but a rejection of their expertise and a dismissal of the knowledge they produce.

   Anti-intellectualism is far different from mere ignorance. Whereas ignorance might be defined as an absence of knowledge, to be anti-intellectual is to be against acquiring knowledge itself. It is to be against those who possess knowledge. As psychologist and educational reformer John Dewey once observed, anti-intellectualism is far more dangerous to a society than mere ignorance. (29) "Genuine ignorance," as he explained it, is "profitable because it is likely to be accompanied by humility, curiosity, and open-mindedness, while ability to repeat catch phrases, cant terms, familiar propositions gives the conceit of learning and coats the mind with a varnish waterproof to new ideas." (30) Novelist Gene Wolfe once described this phenomenon as a "new illiteracy":

   [t]his, then, is the new illiteracy, the illiteracy of those who can read but don't. [...] This new illiteracy is more pernicious than the old, because unlike the old illiteracy it does not debar its victims from power and influence, although like the old it disqualifies them for it. Those long-dead men and women who learned to read so that they might read the Bible and John Bunyan would tell us that pride is the greatest of all sins, the father of sin. And the victims of the new illiteracy are proud of it. If you don't believe me, talk to them and see with what pride they trumpet their utter ignorance of any book...