Even beyond the brazen dishonesty of mischaracterizing Scalia’s question and ignoring how Supreme Court arguments work and the existence of a decades-long public policy debate on the precise question he asked, what makes this flap so particularly dumb is its anti-intellectual attitude towards empirical data.

Since Brown v. Board of Education, the Supreme Court has relied on, and received briefing on, empirical examinations of the educational results of racial discrimination and race-based remedies in education. Whether or not you think it should do so, rather than deciding cases about race discrimination as matters of constitutional principle, the practice of filing a “Brandeis brief” has a long and venerable heritage, much of it supplied by liberals. If it is, in fact, empirically the case that racial preferences are harming students, is that something we should not want to know?

Scalia’s critics may argue they do not find Sander’s data more persuasive than that of his critics, and that justices should only cite correct facts, even when questioning lawyers at argument. But this is a terribly intellectually blinkered way to go into the intellectual exercise of oral argument on a constitutional question of great practical importance, and it only serves to emphasize why we give judges life tenure and why Scalia and his colleagues have long resisted cameras in their courtrooms.

Or it may simply be that the whole purpose of this brouhaha is simply to influence Justice Kennedy by previewing the reaction to a decision that does not go the way the critics want. But that’s just further reason to believe that the people screaming at Justice Scalia right now don’t even believe their own dumb, dishonest argument. Nobody else should, either.