Today’s opinion requires state and federal judges to simultaneously act as political scientists (why did candidate X win the election?), economists (was the financial support disproportionate?), and psychologists (is there likely to be a debt of gratitude?). … The need to consider these and countless other questions helps explain why the common law and this Court’s constitutional jurisprudence have never required disqualification on such vague grounds as “probability” or “appearance” of bias. . . .
All questions of judicial qualifications may not involve constitutional validity. Thus matters of kinship, personal bias, state policy, remoteness of interest, would seem generally to be matters merely of legislative discretion.
Pfaff is not persuaded.
But. There may arise cases in which the Court has to make the call without being able to defer the non-parachute cases to legislatures or agencies. And in those cases, the nature of Roberts’ argument becomes more problematic. He is basically saying: we are not competent to make political science, economic, and psychological calls, and thus we should not do so. Clearly the latter half of that sentence follows nicely from the first. If you can’t do something, you shouldn’t do it.*
But that first half troubles me. The fact of the matter is that the types of questions the Court faces often force the justices to take on the roles of political scientists, economists, and psychologists. And Roberts is right that Supreme Court consisting of nine justices with no advanced training or practice in any of those fields is not well-suited to tackle that task. But the solution isn’t for the Court to just refuse to do its job—in fact, as I’ll show in a moment, Roberts himself acts like a political scientist and psychologist in this very dissent.
No, the solution must be for the Court to confront its epistemic failings directly. And it strikes me that there are two general avenues to consider. First, the Court could figure out how to become competent in the fields it must be competent in, perhaps by hiring clerks with a wide range of academic training and professional experience in policy- and science-related fields,** or by figuring out a way to bring in outside expertise for guidance (akin to the special masters, independent experts, and technical advisors that federal judges can appoint to assist them with technical issues). Or second, we could significantly restrict the range of cases the Court can hear to just those that involve statutory interpretation, matters of legal doctrine, or other such issues that implicate almost no empirical fact-finding.
(That is, clearly, a beyond-cursory set of proposals. I will be fleshing them out in the posts ahead.)
But to allow the Court to admit it cannot handle social scientific evidence while still allowing it to do seems crazy. If my accountant walked in to a meeting and said “I don’t know how to add or subtract, but let me manage your finances” I would fire him on the spot. Yet at some level that is exactly what Roberts did. . . .
To just summarize: Roberts’ concerns about the difficult types of questions the Court faces are valid. His fear that the Court is not well equipped to handle these social science questions is completely right. But as his own opinion makes clear, the justices simply cannot avoid these types of issues, no matter how hard they try. So the solution must be to find a better way to do so, not to simply admit incompetence.
This may also have some implications for my work on social cost:
Roberts recently criticized legal scholarship for being relatively useless to judges, but it seems like he needs to read a bit more by Tom Tyler. The work by Tom and other social psychologists on “decision acceptance” suggests that parties are more willing to accept decisions that go against their self-interest the more they think the procedures that led to them are fair. Perhaps allowing those concerned about bias to voice their complaints might strengthen their faith in the system, even if they lose, and denying them that hearing could make them more cynical. I don’t know for sure. But I do know two things: (1) Roberts’ claim about bias challenges and faith was the very sort of psychological or political science claim he seems to argue the Court should avoid making (just look at the list of criticisms he made about Kennedy’s opinion and note how many apply here); and (2) his claim was empirically naïve.
And from Professor Stuart Ford in the comments:
There is plenty of support for the general position that people are largely incapable of being unbiased and rational. See Ziva Kunda, The Case for Motivated Reasoning, 108 Psychological Bulletin 480, 493 (1990); Eldar Shafir and Robyn A. LeBoeuf, Rationality, 53 Annual Review of Psychology 491 (2002) (arguing that the assumption of human rationality is misguided and presenting summaries of dozens of experiments that show that humans have been found to act in ways that are not rational); Shailendra Pratap Jain and Durairaj Maheswaran, Motivated Reasoning: A Depth-of-Processing Perspective, 26 Journal of Consumer Research 358, 358 (2000) (arguing that the motivation to arrive at a preferred conclusion enhances the use of those beliefs and strategies that are most likely to yield the desired conclusion); etc., etc.
There is also some support for the proposition that this applies to judges (judges are people too!). See Eileen Braman and Thomas E. Nelson, Mechanism of Motivated Reasoning? Analogical Perception in Discrimination Disputes, 51 American Journal of Political Science 940, 940-941 (2007) (noting that judges believe that the law guides their decision making, despite evidence that political preferences provide a better explanation for judicial outcomes than the law).
I think its from this article: A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms, 45 Vand. J. Transnat’l L. ___ (forthcoming 2012).