This is an excerpt from the latest CCP paper, "Ideology" or "Situation Sense"? An Experimental Investigation of Motivated Reasoning and Professional Judgment, Univ. Pa. L. Rev. (in Press).
We have suggested that the results of this study furnish evidence relevant to assessing whether identity-protective cognition affects expert scientists. We now want to show how understanding the role of identity-protective cognition in conflicts over policy-relevant science can be used to highlight the practical significance of our study results for the administration of justice.
There is an obvious sense in which the results of this study can be understood as good news for the justice system. The perception that judges are “just politicians in robes” is, as we noted, commonplace. The popular view that judges decide cases on the basis of political or cultural commitment extrinsic to law is both understandable and distressing. Yet in an experiment designed to avoid methodological limitations associated with studies that have purported to corroborate this anxiety, we found evidence that judges of diverse cultural outlooks can be expected to converge on results in cases that predictably divide the public. Their job is to decide those sorts of cases neutrally, and our evidence supports the inference that they have both the capacity and disposition to carry it out.
That such a result defies public perceptions should not come as any sort of surprise. Numerous studies have found that members of the general public themselves can be expected to conform their assessments of evidence and their interpretation of rules to the stake they have in legal outcomes that affirm the status of their groups and their own standing within them. These studies, we have emphasized, are not a reliable basis for drawing inferences about the in-domain reasoning processes of judges. But the one sort of inference that they do support is that members of the public can be expected to perceive judges to be biased in cases the outcomes of which are invested with antagonistic cultural meanings even when the outcomes of those cases reflect neutral decisionmaking.
That conclusion is, in fact, the bad news associated with our study results: the reliable convergence of culturally diverse judges on genuinely neutral outcomes has no connection at all to how untrained members of the public perceive the neutrality of those judges’ decisions. Again, because citizens lack the elements of professional judgment—the “situation sense”—that lawyers and judges acquire through their training and experience, citizens don’t have the capacity to discern those aspects of the case and the governing legal rules pertinent to assessing the neutrality or validity of judicial resolutions of them. On the contrary, in precisely those cases in which public anxiety about the cultural neutrality of the law is likely to be highest, identity-protective cognition will predictably disable members of the public from using their usually reliable lay prototypes of valid decisionmaking to assess cases outcomes. In that circumstance, no matter how expertly and impartially judges decide, one or another segment of the public will be disposed to see judges’ decisions as “politically biased” whenever courts are called upon to resolve culturally fraught controversies.
This problem is exactly parallel to the one that scientists face when empirical issues on which they possess expertise becomes entangled in culturally contested meanings. Obviously, doing valid science does not in itself communicate the validity of scientific research: people lack the expertise to see validity for themselves; they must rely on cues and processes that help them to reliably recognize who knows what about what. The capacity of members of the public to interpret those cues is compromised when propositions of risk or fact become symbols of the status of competing cultural groups. In that sort of “polluted science communication environment,” just doing valid science—including the part of valid science that consists in communicating validity to other scientists—will do nothing to silence public confusion and agitation.
Fixing this science communication problem is the aim of a new science of science communication. This subdivision of decision science uses empirical methods to identify the various dynamics that enable people to recognize as valid scientific insights that they could never verify for themselves. It aims, too, to understand, empirically, how those processes can be disrupted, and how society can effectively preempt such disruptions and counteract them when strategies of prevention fail.
Exploiting the benefits of the science of science communication will demand appropriate adjustments to myriad institutional practices. The sorts of conscious interventions necessary to protect the science communication environment from contamination are not self-executing. An integral part of the science of science communication, then, is to identify programs of implementation that appropriately reconfigure the processes for science-informed policymaking, the norms of science-generating and -consuming professions, and the structure of university training of scientists and public-policymaking professionals.
The law has a similar communication problem. Doing and communicating neutral decisionmaking are as different from one another as doing and communicating valid science. Just as solving the science communication problem demands scientific knowledge and appropriate institutional reforms, so solving the law’s neutrality communication problem will require appropriate acquisition and use of empirical knowledge of a sort aimed at expanding understanding of how people come to recognize the neutrality of the law and what law should do to make its neutrality fully recognizable.
There is one critical difference, however, between the science communication problem and the neutrality communication problem. Unlike scientists, judges are expected both to make valid decisions and communicate the validity of their work to the public. It is widely recognized that the experience of liberal neutrality in law depends on the public’s confidence that the law is genuinely impartial. The practice of reason-giving reflected in judicial opinions is understood to be intrinsic to the rule of law precisely because public assurance of the law’s neutrality depends on their access to a reasoned account of the neutral, impartial grounds for courts’ decisions.
The legal profession is doing well, our study suggests, in equipping those of its number who serve as judges to be neutral decisionmakers. But the very ubiquity and persistence of conflict over whether judges are in fact deciding cases on neutral grounds is a testament to how little the profession knows, and how poorly equipped its members are, to communicate the neutrality of the law. That deficit in lawyers’ “situation sense” is itself a barrier to citizens’ enjoyment of the value that neutral judicial decisionmaking confers on them.