Beyond the false claims, there were many basic factual errors and typos. In the space of a week, Sidney Powell misspelled the word “district” three times, in three different ways, on the front page of two lawsuits. As I wrote at the time, the legal campaign was plagued with a kind of negligence that seemed to epitomize the lack of care and consideration given to its efforts.
Which brings us to a controversial new ruling from a Trump-appointed judge. In an order celebrated by conservatives who have spoken out against what they perceive as government censorship of social media, U.S. District Judge Terry A. Doughty banned numerous U.S. officials from communicating with social media companies at service for the eradication of allegations of misinformation.
But note the irony, as Philip Bump of the Washington Post did: Doughty’s full 155-page order contains its own misinformation.
At one point, Doughty refers to a statement by White House communications director Kate Bedingfield as having taken place during a “White House press conference.” In fact, Bedingfield appears to have uttered the applicable comment on MSNBC — which Bump notes is an important distinction given the context of the interview and how Doughty interprets the quote.
Doughty also seems to suffer from Powell’s affliction of making early mistakes in legal writing. In its introduction, it quotes a famous quote – “I may disagree with what you say, but I will defend your right to say it to the death” – attributed to author Evelyn Beatrice Hall. Except he calls her Evelyn Beatrice Hill.
And in three of the eight mentions of the Communications Decency Act, Doughty leaves out the “s” of “Communications.”
Errors occur. I made them. I will do them again. But there’s something different about doing it in the context of — and on top of — a potentially momentous court decision. This especially goes for the one Doughty must have known was going to make a splash. It’s the kind of stuff that really should be buttoned up.
(The decision to release the order on July 4 would seem to reinforce this, as would Doughty’s statement that “this case involves arguably the most massive assault on free speech in United States history. “. went far beyond the available evidence.)
That said, these things have cropped up with high-ranking judges — perhaps with more regularity than some people might think. They can occupy gray areas: not proven false, but lacking the kind of justification you would want to see in a court ruling. And often they came in highly political sounding decisions like Doughty’s.
Just last week, Supreme Court Justice Sonia Sotomayor, in a dissent, cited the Pulse nightclub massacre in Orlando while writing about how “a social system of discrimination has created an environment in which LGBT people were not safe”. But there remains no strong evidence that the massacre was motivated by anti-LGBT views, which government prosecutors reinforced during the trial of the gunman’s widow.
(Sotomayor, during oral argument last year, offered a wildly flawed statistic about the number of children in serious condition from the coronavirus.)
A few months ago, a federal judge appointed by Trump in another controversial ruling sought to end the use of the abortion pill mifepristone. Echoing anti-abortion activists, District Judge Matthew J. Kacsmaryk offered claims that were loaded and at best contrary to scientific consensus — and, at worst, false. Among them, mifepristone “eventually starves the unborn human to death”.
Supreme Court Justice Clarence Thomas, in an opinion delivered last year, wrote that two death row inmates “do not dispute, and therefore concede, that their habeas petitions fail based solely on the court record of State”. Except that both parties to the case seemed to agree that this issue had not been raised, so this argument could not have been conceded. They agreed that the record could be corrected, but the court refused.
Another instance in which this type of neglect occurred dates back to 2020, when a federal district judge forced Louisville to allow drive-in religious services during the pandemic. Judge Justin Walker said Mayor Greg Fischer (D) had ‘criminalized the community celebration of Easter’. But while Fischer initially said he would not authorize such services, his office quickly clarified, “It’s not a law enforcement issue; it’s a community matter,” and no such order had been issued when the judge intervened. The mayor also said he tried to clarify this to the judge, but the judge acted without giving the city a chance to respond.
In 2017, ProPublica uncovered seven more errors in a “small sample of Supreme Court opinions written from 2011 to 2015.”
They included basic factual errors of little relevance to the end result, but also vital statistics with real bearing on the issues at hand. Sometimes the judges relied on information from briefs or interest groups that the judges seemed to accept too willingly.
In one case, then-Judge Anthony M. Kennedy cited a statistic that untreated sex offenders continue to commit new sex crimes at an “estimated 80%” rate. This estimate? It was basically a guess from someone with no real expertise in the matter.
Complaints about miscarriages of justice date back decades, with legal scholar Kenneth Culp Davis making efforts in the 1980s to ask the Supreme Court to establish its own search operation.
“The court can often be at its worst on political issues that depend on the understanding or instinct for legislative facts,” Davis wrote at the time (“legislative facts” refer to facts relevant to the issues at hand ). “Indeed, I feel that, generally, the court is fundamentally confused when it tries to deal with legislative facts.”
With a growing number of Americans doubting the legitimacy of the judiciary and these errors and disputes finding their way into hotly contested opinions, you might think we would see such an idea revived. At the very least, they could use fact checkers.