Supreme Court justices do botch the truth, even in cases of great importance

By Ryan Gabrielson . . . In 2007, a group of California Institute of Technology scientists working at NASA’s Jet Propulsion Laboratory filed suit against the venerated space agency. Many of the scientists had worked on NASA missions and research for years as outside employees. As part of efforts to tighten security measures after 9/11, in 2004 NASA started requiring outside workers to submit to the same kind of background checks used for federal employees, including questions about drug use. The scientists, some of the nation’s best and brightest, protested and resisted for years, and finally went to court to argue that the checks violated their privacy rights.

The case ultimately made it to the U.S. Supreme Court, where, in 2011, the justices unanimously sided with NASA. Justice Samuel Alito, who wrote the opinion, made a central point of noting that such background checks had long been commonplace in the private sector. Alito even cited a very specific statistic: 88 percent of all private companies in the country conduct such checks, he wrote.

It was a powerful claim in a decision with real consequences for American workers. It was also baseless.

Alito, it turns out, had borrowed the statistic from a brief filed in the case by the National Association of Professional Background Screeners. ProPublica asked the association for the source of its statistic. The association offered a variety of explanations, none of which proved true, and ultimately conceded it could not produce evidence that the 88 percent figure was accurate or say where it came from.

The decisions of the Supreme Court are rich with argument, history, some flashes of fine writing, and, of course, legal judgments of great import for all Americans.

They are also supposed to be entirely accurate.

But a ProPublica review of several dozen cases from recent years uncovered a number of false or wholly unsupported factual claims.

The review found an error in a landmark ruling, Shelby County v. Holder, which struck down part of the Voting Rights Act. Chief Justice John Roberts used erroneous data to make claims about comparable rates of voter registration among blacks and whites in six southern states. In another case, Justice Anthony Kennedy falsely claimed that DNA analysis can be used to identify individual suspects in criminal cases with perfect accuracy.

In all, ProPublica found seven errors in a modest sampling of Supreme Court opinions written from 2011 through 2015. In some cases, the errors were introduced by individual justices apparently doing their own research. In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.

Some of the mistakes were technical or arguably minor, and it is difficult to determine with certainty if they played a vital part in the court’s reasoning and final judgments.

But the NASA case was not the only one where a mistake involved a core aspect of the court’s ruling on an issue with widespread ramifications.

In 2013, the court issued a unanimous ruling in a case involving Fourth Amendment protections against unreasonable searches by the police. In the case, the court determined that when a drug-sniffing dog signals it smells an illegal drug from outside of a car, police have probable cause to search the entire car without a warrant. Justice Elena Kagan, who wrote the opinion, took on one of the central fears of those worried about innocent people being caught up in such police searches.

Kagan argued that the risk of “false positives” — instances in which a dog might mistakenly identify the presence of drugs — should be based on whether the dogs had been formally certified by police groups as reliable in their performance. She cited material from the Scientific Working Group on Dog and Orthogonal Detector Guidelines to support the court’s position.

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