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.
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":
- Bowers et al. Which Supreme Court Justices Vote Together Most and Least Often, New York Times, June 23, 2014.
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.
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
- Dan M. Kahan, The Supreme Court 2010 Term—Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law 126 Harv. L. Rev. 1-77 (2011).
Also in our experimental paper
- Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski, They Saw a Protest : Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. 851-906 (2012).
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.