Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law

By Kahan, Dan M. | Harvard Law Review, November 2011 | Go to article overview

Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law


Kahan, Dan M., Harvard Law Review


CONTENTS

INTRODUCTION: THE NEUTRALITY CRISIS                                 4

I. INTERNAL CONTRADICTIONS OR PLURALISTIC IGNORANCE?                9

A. Constitutional Theory and Neutrality                             9

B. Motivated Reasoning and Its Cognates                            19

1. Generally                                                       19

2. Identity-Protective Cognition                                   20

3. Naive Realism                                                   21

4. "Objectivity"                                                   22

5. Cultural Cognition                                              23

6. Cognitive Illiberalism                                          24

C. Cognitive Illiberalism and Constitutional Neutrality            27

II. DEMOCRACY, SELF-DECEPTION, AND DISTRUST                        31

A. "Empirical Fact" Finding                                        31

B. The "Noncommunicative Harm" Principle                           42

C. Theories as Cues                                                51

III. EXPRESSIVE VIRTUES                                            58

A. Aporia                                                          59

B. Affirmation                                                     67

CONCLUSION: FIXING THE COMMUNICATION FAILURES OF PLATA'S REPUBLIC  72

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 Foreword 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, this Foreword 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. Just as 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, so 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.

  These questions are difficult and sensitive, but they are factual
  questions and should be treated as such. Courts can, and should,
  rely on relevant and informed expert testimony when making factual
  findings. It was proper for the three-judge court to rely on the
  testimony of prison officials from California and other States.
  Those experts testified on the basis of empirical evidence and
  extensive experience in the field of prison administration.
  --Brown v. Plata (1)

  [T]he idea that the three District Judges in this case relied
  solely on the credibility of the testifying expert witnesses is
  fanciful. Of course they were relying largely on their own beliefs
  about penology and recidivism. And of course different district
  judges, of different policy views, would have "found" that
  rehabilitation would not work and that releasing prisoners would
  increase the crime rate. … 

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