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Monday
Jun302014

Are judges biased? Or is everyone else? Some conjectures

I had some email correspondence with John Callender & it seemed like reproducting it would be a fitting way to mark the end of the U.S. Supreme Court's "OT '13" Term.

John writes:

I may be misinterpreting your views or applying them incorrectly. But I've been struck by your recent writings on the pernicious role of cultural meanings in individuals' attempts to assess expert knowledge when evaluating risk, and as a result I end up seeing that phenomenon in lots of other places.

Most recently, I saw what looked like a similar effect at work in something blogger Kevin Drum wrote about: the tendency of US Supreme Court justices to agree with each other.:

Drum was commenting on this item from the New York Times' "The Upshot":

Drum wrote:

When it comes to high-profile cases, you get a lot of 5-4 decisions. But on the majority of less celebrated cases, when the political spotlight is turned off, there's a surprising amount of consensus on what the law means.

That makes me wonder if something similar to the effect that pollutes the cognitive process of those assessing expert opinion on things like climate change and GMOs might be at work in the case of Supreme Court justices. Granted, they are themselves experts reaching judgments about the thing they're expert in (the law). But it seems possible that the same bias that negatively effects peoples' ability to accurately assess expert opinion when cultural identity and status-maintenance gets tangled up in the question could be a factor in justices' tendency to disagree more in some cases than in others.

My response:

Thanks for sharing these reflections w/ me; they are super interesting & important.

Let's say that it's true that we see more "agreement" among judges than we'd expect relative to divided views of non-judges.  There would be two (at least) plausible hypotheses: (a) the judges are converging as a result of some conformity mechanism that biases their assessment of the issues vs. (b) the *people reacting* to the judges' decisions are  being influenced by cultural cognition or some like mechanism that generates systematic differences of opinion among them, but the judges are converging on decisions that are "correct" or "valid" in relation to professional judgment that is distinctive of judges or lawyers.

I elaborate -- only a bit! -- in this blog post:

The idea that public division over controversial supreme court opinions might reflect a kind of "neutrality communication" failure akin to "validity communication" failure that generates division on issues like climate change etc. (hypothesis b) also figures pretty prominently in

Also in our experimental paper

Hypothesis (b) is in my view primarily an alternative to the prevailing view that (c) judges are "political" -- they vote on basis of ideology etc.  The frequency of unanimous decisions -- or even ideologically charged ones that divide Justices but not strictly on ideological lines -- challenges that view.  Hypothesis (a) & (b) both try to make sense of that, then!

We need more empirical study -- both because it would be interesting to know which hypothesis -- (a), (b) or (c) -- is closer to the truth & because the answer to that question has important normative & prescriptive implications.

 

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Reader Comments (5)

There are a few different things going on.

First, all judges are extraordinarily biased in largely the same way. Dennis Jacobs gave this speech circa 2006 when he was chief judge of the 2nd circuit court of appeals (don't know if he's still on the bench):

http://graphics8.nytimes.com/packages/pdf/national/jacobs.pdf

You mention " the judges are converging on decisions that are "correct" or "valid" in relation to professional judgment that is distinctive of judges or lawyers." This is very real, but better thought of I think as bias in the sense Judge Jacobs discussed it.

The second big thing is that, as Justice Sotomayor so famously spilled the beans about, the US appeals courts "are where policy is made." When the courts interpret the meaning of terms in a statute they have a very real effect on the actual substance of the law in question. One of my friends regularly complains about how Justice Scalia has interpreted the clauses on class certification in such a way that it's nearly impossible to get class certification in employment discrimination cases.

That has happened for 2 reasons. First, the presidents and senators who pick appeals and supreme court justices know full well the courts make policy. So they pick their political compatriots. Second, using again the example of class action law, raw judicial bias doesn't give anyone any better an idea of what "similarly situated" means in the class action statute. So rival interpretations between judges are in fact simply rival politicians trying to craft the law in accordance with their political views.

A really fantastic law school professor of mine once said "It's very important for the general public not to know lawyers and judges are basically making the law up as we go along." So, if you wouldn't mind keeping this on the down low, that would be much appreciated.

July 1, 2014 | Unregistered CommenterRyan

@Ryan--

these are very good points. Too many scholars who do empirical analyses judicial decisionmaking make no effort to distinguish between the types of legal reasoning that essentially incorporate judgments of value & those that are supposed to be completely independent of the same. As a result, they generate exaggerated results on impact of "politics" or "ideology" in court outcomes.

But it is likely not realistic to expect the public to confine its own assessment of judicial "neutrality" to the latter kinds of decisons. So one might worry that assigning judges this sort of decisionmaking responsibility (it can be called "policymaking" but really it is a traditional "common-lawmaking" function) complicates the challenge of "communicating neutrality."

As for your law professor -- those guys tend to exaggerate, especially when discussing the indeterminacy of law!

It's not surprising that so many of them don't have a grasp of the logic of professional judgment given how many of them haven't practiced law to any significant degree.

Of course, the legal scholar who had the best sense of this was Llewellyn. Can't get much more remote from practice than he was!

July 2, 2014 | Unregistered Commenterdmk38

Interesting post in light of the recent development where the female SCOTUS justices disagree so strongly with the majority of the males.

Methinks that gender and personal biases are not coincidental to their reasoning.

July 4, 2014 | Unregistered CommenterJoshua

@Joshua:

What is this recent development? What is relative frequency of 'male vs. female' division? & over what? Should one try to disentangle some non-gender related measure of "judicial philosophy" from gender to test your surmise? That would involve distinguishing variance in the form of "judicial philosophy" that reflects a conscious & legally valid ingredient in legal decisionmaking (anyone--political scienitst or opinionated commentator-- who denies there is such a thing has no idea how law works) from the kind of "politics" or "ideology" that is extraneous to valid decisionmaking. I could see a gender split based not on bias of any sort but based on the happenstances that the 3 female justices now on the court are *closer* to one another in their "phiolosophy" than are the 6 men (but they aren't *that* far off from Breyer or even Kenndy).

I'm not saying I disagree with you. Not at all.

But I am saying that I recognize this sort of impression as s being a type that it is much easier to form -- b/c of the selection bias in coverage of decisions & b/c of the "fit" between it & reasonable expectations -- than it is to verify.

Consider the unanimity-- at least about the reuslt -- in this Term's abortion-protest buffer case. When I see people advancing the cliam about "ideological division," decisions like that always seem to get left out of their sample & for sure their analysis.

July 4, 2014 | Registered CommenterDan Kahan

Dan -

Obviously, some issues are more likely to see gender-related differences than others. Looking at whether the justices differ by gender over, say, campaign finance might be a bit like asking "skeptics" and "realists" whether they disagree as to which is the best flavor of ice cream. So looking at overall divisions by gender might be instructive in some ways but not in others. It might tell us that there's no general differences by gender - but it might hide that the justices are no doubt, biased by their personal experiences when it comes to certain issues.

The recent development is that the women justices feel so strongly about the ruling on contraception funding.

The SCOTUS has the task of interpreting the language of the founding fathers, and the interpretation of language is always influenced by life experiences. To the extent that the justices might have gender-related differences in life experiences, we would expect them to see different patterns just as they would when they interpret the language of the constitution when comes to questions of "freedom" or "equality."

==> " I could see a gender split based not on bias of any sort but based on the happenstances that the 3 female justices now on the court are *closer* to one another in their "phiolosophy" than are the 6 men (but they aren't *that* far off from Breyer or even Kenndy)."

Does the prevalence of the public's views on issues related to women's health track when stratified by gender with the same prevalences as with basic ideological orientation? I doubt it. If in a given sample of women, you found a 50/50 split along basic ideological orientation, would you also find a 50/50 split on issues related to women's health? If you took a representative mixed-gender sampling and categorized them by ideological orientation, would it show the same numbers as if you took that same sampling and categorized them by orientation on a woman's health issue? My guess would be no to both.

Should we expect the justices on SCOTUS to be fundamentally different than the general public in how they reason on ideologically biased issues? I think not, because their reasoning is based in the shared attributes of human cognition and psychology.

And is the prevalence of ideological orientation of the 3 women on the SCOTUS, respective to that of the men, merely a random outcome?

When I look at SCOTUS, and see a mirror image in opinions as they relate to ideological orientation on issues such as states' rights - depending on the political implications of the case at hand (e.g., Bush V. Gore), I need a whole lot of evidence to convince me that their rulings are based on judicial philosophy or a legal orientation or as opposed to a political perspective and related life expereinces. Take the very fundamental notions of "judicial activism" and "strict constructionism." Those definitions seem to be very pliable depending on whose ox is being gored. How else to you explain the penchant for "judicial activism" and setting new precedent among the current group justices that is putatively oriented towards a "judicial philosophy" of "strict constructionism?"

July 4, 2014 | Unregistered CommenterJoshua

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