Recently posted to SSRN:
"The Supreme Court 2010 Term - Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law"
Harvard Law Review, Vol. 125, November 2011
DAN M. KAHAN, Yale University - Law School, Harvard Law School
Why is the 'neutrality' of Supreme Court decisionmaking a matter of persistent political disagreement? What should be done to mitigate such conflict? Once the predominant focus of constitutional law scholarship, efforts to answer these questions are now widely viewed as evincing misunderstandings of what can be coherently demanded of theory and realistically expected of judges. This paper attributes the Court’s 'neutrality crisis' to a very different form of misunderstanding. The study of motivated reasoning (in particular cultural cognition) shows that individuals are predisposed to fit their perceptions of policy-relevant facts to their group commitments. In the course of public deliberations, these facts become suffused with antagonistic meanings that transform utilitarian policymaking into occasions for symbolic status competition. These same dynamics, the paper argues, make constitutional decisionmaking the focus of status competition among groups whose members are unconsciously motivated to fit perceptions of the Court’s decisions to their values. Theories of constitutional neutrality do not address the distinctive cognitive groundings of this form of illiberal conflict; indeed, they make it worse by promoting idioms of justification, in Court opinions and public discourse generally, that reinforce the predisposition of diverse groups to attribute culturally partisan aims to those who disagree with them. The divisive effects of motivated reasoning on policy deliberations can be offset by science communication techniques that avoid selectively threatening any group’s cultural worldview. Similarly, public confidence in the Supreme Court’s neutrality can be restored by the Court’s communication of meanings that uniformly affirm the values of culturally diverse citizens.
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