I am now working through Dan M. Kahan, Neutral Principles, Motivated Cognition and Some Problems for Constitutional Law, in: Harvard Law Review, vol 125 (2011), pp.1-77 (see also the summary by the author as a blog post, Motivated Reasoning and its Cognates). The Harvard Law Review version is independently useful, because it has two responses, by Mark Tushnet and by Suzanne Sherry.
Kahan, a former clerk of Supreme Court Judge Thurgood Marshall, takes his departure from the question of the neutrality of the US Supreme Court justices.
The most fundamental form of individual freedom that liberal constitutionalism secures for its citizens depends on the promise that government won’t impose legal obligations that presuppose adherence to a moral or political orthodoxy. [6]
Kahan is concerned that the socio-psychological context in which this freedom to pursue one's own happiness is negotiated is missed.
Scholars and jurists have focused their attention entirely on the content of doctrines, I will argue, without attention to the social-psychological dynamics that shape how culturally diverse groups form impressions of what the Court’s decisions mean. [6]
People are hamstrung in noticing the others' illiberality without seeing their own.
... although people are poor at detecting motivated reasoning in themselves, they can readily discern its effect in others, in whom it is taken to manifest bias or bad faith. [7]
What should be a discussion around evidence thereby turns into a question of social status of the in-group.
... the issue of whose view of the facts will be endorsed by the law takes on added meaning as evidence of the groups’ relative social standing. The result is a distinctive cognitive form of illiberalism ... [7]
Claims of neutrality are disbelieved by those who disagree with the outcome of a ruling.
... the neutrality of Supreme Court decisions becomes just another focus of illiberal status competition among groups who have fundamentally different visions of the good society — but who don’t disagree about the value of neutrality or about what neutrality in law requires. [8]
After analyzing the legal discourse on neutrality, Kahan turns to the problem of motivated reasoning in the case where the self-understanding of the individual is at stake.
Individuals depend on select groups — from families to university faculties, from religious denominations to political parties — for all manner of material and emotional support. Propositions that impugn the character or competence of such groups, or that contradict the groups’ shared commitments, can thus jeopardize their individual members’ well-being. [20]
Kahan breaks it down into three well known biases that people have:
Individuals are more likely to seek out information that supports than information that challenges positions associated with their group identity (biased search). They are also likely to selectively credit or dismiss a form of evidence or argument based on its congeniality to their identity (biased assimilation). They will tend to impute greater knowledge and trustworthiness and hence more credibility to individuals from within their group than from without. [21]To throw in my own two cents for a minute, the credibility might well relate to a famous dictum by Karl Barth. Just as it is more difficult to deal with the disagreement of people closer to my own position, it is difficult to understand why people with greater knowledge and trustworthiness are not in my own group.
Naïve realism refers to an asymmetry in the ability of individuals to perceive the impact of identity-protective cognition. Individuals tend to attribute the beliefs of those who disagree with them to the biasing impact of their opponents’ values. [22]
Nevertheless, in such situations individuals usually understand their own factual beliefs to reflect nothing more than “objective fact,” plain for anyone to see. [22]In Kahan's reconstruction, this becomes the basis of the interminable round of mutual recriminations as the debate devolves into a "contest over the integrity and intelligence of those groups" [22]:
The (accurate) perception that a rival group’s members are reacting in a closed-minded fashion naturally spurs a group’s members to express resentment — the seeming baselessness of which provokes members of the former to experience and express the same. [22]
Cultural cognition refers to the tendency of individuals to conform their perceptions of risk and other policy-consequential facts to their cultural worldviews. Cultural worldviews consist of systematic clusters of values relating to how society should be organized. [22]
Kahan illustrates the challenge with an analysis of how people use their values to react to question involving the environment versus the economy.
People who subscribe to a relatively hierarchical and individualistic worldview, for example, tend to be dismissive of environmental risk claims, acceptance of which would justify restrictions on commerce and industry, activities they value on material and symbolic grounds. Individuals who hold egalitarian and communitarian values, in con- trast, are morally suspicious of commerce and industry, which they see as sources of social disparity and vehicles of noxious self-seeking. [23]
Even scientific consensus is not exempt from this matrix [24]; cf. Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. RISK RES. 147, 149–50 (2011); and even questions of date rape exhibit these viewpoints; cf. Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010).
Thus, while the US project is united in its attempt to provide the good life for its citizens, the means of achieving this are hotly contested [25]. US voters are not haggling over values, they are haggling over facts which they valuate differently.
The varying emotional resonance of risk claims across distinct cultural communities predisposes their members to find some of these claims more plausible than others, a process reinforced by the tendency of individuals to seek out and credit information from those who share their values. [25]
As a result, policy debates tend to
... build into rivalries among the members of groups whose members subscribe to competing visions of the best life. [25]
The positions that individuals take on whether the death penalty deters, whether deep geologic isolation of nuclear wastes is safe, whether immigration reform will boost the economy or put people out of work, and the like express their defining commitments and not just their beliefs about how the world works. [26]
Whose answer the state credits — by adopting one or another policy — elevates one cultural group and degrades the other. [26]
Though Kahan does not use that terminology, the public discourse has turned into a zero-sum game of status where the state's choice of policy can only elevate the one side while disregarding the other.
Using this infrastructure, Kahan can now reconstruct the neutrality debate of the Supreme Court in terms of the illiberal bent of motivated reasoning toward identity-protective cultural cognition.
Even among nonzealots, however, perceptions of the Court’s decisions remain vulnerable to identity-protective cognition in much the same way sports fans’ perceptions of the calls of a referee — or dare I say umpire — do. [28]
There is thus an inherent risk that citizens will perceive decisions that threat- en their group commitments to be a product of judicial bias. [28]
Unfortunately Supreme Court findings use all the wrong argument types to get past this impression.
The Court’s decisionmaking conspicuously features procedures, techniques, and doctrines informed by the trappings of the grand neutrality theories. [28]
This comes about by "equating prevailing interpretations with “reason” and defeated ones with mere “will” or “preference,” [28] thus coming across as putting down the losing side of a ruling.
Against this back- ground, the decisions of the Court are no longer seen as determinations of particular disputes but rather as adjudications of the status and dominance of contending cultural groups. [29]
Using this framework, Kahan now turns to the 2010 term of the Supreme Court for analyzing the actual decisions that the court had made and looking at how the evidence of each side was contested by the other.
In cases involving sex equality, gay rights, the death penalty, police seizures, drug testing, and other charged matters, the Court has invoked empirical evidence — or some- times the lack of it — as warrant for its decisions. When it does so, the genuineness of its reasoning has provoked accusations of bad faith, not only from within the Court but also from without. [34]
Some of these decisions may well be that the Justices think [35] such empirical recourse will help the losing side accept the verdict. But Kahan's approach suggests that doing so only aggrevates the feelings of rejection and status loss. Such a tack however [36] leaves the losing side with no interpretation but the feeling that they are "either deluding themselves or trying to deceive others." [36]
The narrative falls apart altogether when later decisions do away with the empirical support in lieu of moral justification.
The point is not that decisions grounded in empirical “fact” shouldn’t evolve into ones of “principle”; it is that the observable tendency of them to do so makes it predictable that citizens will suspect the Court is trying to deceive them (or is surrendering to self-deception) when it purports to lay decisive weight on “empirical facts.” [36]
At the same time, the empirical evidence becomes ammunition for the "winning side" to be used in their verbal sparring with the losing side.
This factionalized environment incubates collective cynicism — both about the political neutrality of courts and about the motivations behind empirical arguments in policy discourse generally. Indeed, Justice Scalia’s extraordinary dissent in Plata synthesizes these two forms of skepticism. [37]
In short, the Supreme Court is just as identity-protective as the remaining social discourse:
Empirical factfinding, then, is a normal and basically unremarkable member of the judicial toolkit — even for Justice Scalia. Except when it isn’t: empirical factfinding has properties that provoke identity-protective cognition in cases that are culturally charged, at which point individuals of diverse values are likely to disagree about whether the tool is being applied appropriately. [40]
After covering how this problem is especially strong in Free-Speech situations, where factual findings via the "non-communicative harm" priniple are necessary to distinguish between acceptable and unacceptable behaviors, Kahan concludes:
In this way, the Court’s decisions are transformed into symbols. In assessing whose “harms” are “cognizable,” the Court is adjudicating who counts in a factionalized society, the members of which live in a state of permanent resentment of one another’s perceived attempts to erect their worldview into a political orthodoxy. [49]
Of course, evidence and science are not the only markers. In the end, the "Framers' intent" and even originalism functions in quite the same way, as symbolic markers to constituencies:
As Greene has argued in another article, “originalism” is a kind of presentational style, adopted by academic critics and sometimes by angry Justices, that citizens (through the agency of culturally authoritative intermediaries) use as a cognitive heuristic for deciding what is at stake and whom they should trust in a charged case. [55]
For those outside of these cultural circles, the result was the opposite:
Both the valence of “originalist” theorizing and its denunciatory and confident tone begged credulity in a manner that in turn begged for rebuke. [55]
With David Strauss, Kahan argues that it is the combination of high ground for taking highly charged positions:
Judges’ reasoning triggers self-reinforcing waves of self-deception and distrust only when judges make use of the simulacra of these heuristics that get packaged as “theories” and sold to the public as furnishing exclusive guides for “neutral” interpretation. The provenance, valence, and tone of these frameworks are what make them carriers of the partisan meanings that provoke the complex of identity-protective mechanisms that polarize citizens on cultural grounds. [57]
Thus, the Supreme Court needs new expressive strategies that do not simplify extremely complex problems into siding with half of the electorate under the guise of empirical evidence. Researchers like Paul Secunda (e.g. Cognitive Illiberalism and Debiasing Strategies, Marquette Law Review) have proposed debiasing strategies that have at least some experimental evidence to recommend them.
Kahan begins [60] by pointing to the oddity that 5-to-4 decisions are still pronounced as obvious from the Supreme Court bench. This is bad, Kahan reminds us:
Studies of motivated cognition and related dynamics show that pronouncements of certitude deepen group-based conflict. [60]
Because the group-dynamic rewards conformity, the dissenters within the group will stay silent, increasing the appearance of cohesion and agreement. It is here that strategies can attach, by requiring each side to name plausible counter-arguments to their position. [61]
Because this requirement confers a type of procedural immunity for equivocating, those individuals who feel doubt about their group’s position will now add their voices to the mix. The genuineness of what they say, however, is not lost on the other participants. Those in the speaker’s group are exposed to evidence that they otherwise wouldn’t have seen, demonstrating that those who share their commitments hold more nuanced views. [61]
Members of the opposing group, too, see that those on the other side are not in fact uncomprehending of counterarguments; they are thus less likely to write off everything else the other side has to say as originating in self-deception or deceit. [61]
Judges can simulate this by admitting the complexity, the aporia of the issue at hand.
Aporetic engagement does not preclude a definitive outcome or resolution. But it necessarily treats as false — a sign of misunderstanding — any resolution of the problem that purports to be unproblematic. [62]
Kahan then turns to self-affirmation.
Researchers have found that self-affirmation devices can be used to counteract group conflict on political issues, such as the predicted con- sequences of a social-welfare policy or the performance of governmental officials. [67]
Kahan then introduces expressive overdetermination, a technique where a challenging fact is packaged with a consequence that appeals to the recipients: global warming ameliorated with nuclear power, or nanotechnology as mode of cleaning up the environment [67f].
Expressively overdetermined laws — ones that combine elements conveying a multiplicity of culturally valued meanings — have been instrumental in dissipating political conflict over environmental regulation and social welfare policies in the United States, and abortion in Europe. [68]
Kahan is not willing to do so when such accommodations might endanger an unambiguous outcome.
Sometimes governments enact laws that simply violate the Constitution, and sometimes citizens challenge laws that don’t. In those cases, the Court obviously must decide the case in favor of the side that has the better position. [69]
But even there overdetermination can be used to give the opposing sides their due.
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