Some Confirmation Bias from Justice Stevens

May 21st, 2012

In 5 Chiefs (a book I did not particularly care for), Justice Stevens found it an attribute that after he started working on a case, and writing an opinion, he became more convinced that he was initially correct.

As a practicing lawyer I often began my representation of a client with uncertainty about the validity of his or her position but found that my efforts to justify that position convinced me that it was absolutely right. As a justice there were a few occasions when I changed my mind about the outcome while I was working on the draft of an opinion, but much more frequently I became even more certain that I was right as the drafting process progressed.

I would not be so proud and brag about this. This is textbook confirmation bias.

In fact, I know I have kept my mind open the widest after I work on an idea for some time, and then begin to harbor some doubts about it, and realize that there are flaws and holes in my reasoning. I may not change my mind (sometimes I do),  but I always try to strengthen my idea.

Stevens recounts that on a few occasions he was assigned to write an opinion, and changed his mind. But this was the outlier.

If I merely start to agree with myself more and more and more as I write, I know I’m probably doing something wrong. In fact, when I start to hate an article, and think its crap–especially one I loved at first— that’s when I know it is ready for publication.

Needless to say, this quotation–one of the very few insights into JPS’s jurisprudence (a huge disappointment of this book)–explains a lot about how Stevens, over 30 years on the Court, became quite dedicated to his positions. And no wonder he has such sour grapes. After being a Justice for 30 years, he had a lot of time to write about it, and realize how he is right, and everyone else is wrong.

Yes, Nino Scalia has this 10 times worse than Stevens.

Maybe this is one argument in favor of term limits for Justices? Call it the hubris-cap.