Motivated Cognition and the Mandate
posted by Dave Hoffman
At the V.C., Ilya Somin, Jonathan Adler, David Bernstein, David Kopel and Randy Barnett are engaging in victory lap devoted to the proposition “We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are particularly close-minded.” I was particularly struck by Adler’s social scientific foray arguing that liberals are less able to understand conservatives’ arguments than the converse. (I’m committed to believing that the weight of evidence is to the contrary: we’re all motivated thinkers, with no particular ideological slant to our illiberalism.) And this whole thing reminds me of Ilya’s edifying series on his inability to mimic a liberal.
Notably, this week’s discussion is nicely foreshadowed by this old post by Orin Kerr, talking about Barnett’s surprise and expressed feelings of betrayal following Raich. Then, of course, Orin argued that Barnett had overly-discounted the likelihood that the justices would follow precedent and overemphasized their purported consistency to principle. Since that’s exactly what Orin has been predicting will happen in this litigation, maybe it’s time for him to eat Barnett’s crow. In all, it’s been a boffo week for the V.C. bloggers.
One small quibble. I hear repeatedly that debates in the blogosphere “sharpened” arguments against the mandate, and the liberal academy’s “groupthink” weakened the pro-mandate case. We may never know. But, frankly, this seems like exactly the kind of thing that conservative academics – long suffering and marginalized – would like to believe (and liberals fully believe about viewers of fox news!) But whatever honing (or comforting) the blogosphere has done, it strikes me as highly unlikely to have influenced Justice Kennedy’s sense of his place atop history, his views about the contours of the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” and Justice Roberts’ consequent 5-4 anti-ACA or 6-3 pro-ACA opinion. And isn’t that all that matters, in the end?
Indeed, from everything I’ve ever heard or read, argument matters almost none of the time, and especially rarely in high stakes cases. Now it might have been that by repeating claims in a public place, bloggers made them more respectable, and thus (on the margins) more likely to be accepted by the court. But, again, we’re really only talking about one Justice’s mind here, and his deciding vote (which, if pro-ACA, the betting money suggests that Roberts would join). Given the focus on one Justice’s views, doesn’t it seem odd to be talking about large social forces (or small ones) and their influences on him? For all I know, he had a big breakfast before Monday’s argument, it affected his disposition, and we got the questions we got.
Heck, if we’re going to make irresponsible “social science” claims, how about this one: for the next two months, Justice Kennedy will have more power over the lives of his fellow Americans and the American economy than anyone in the country’s history since Abraham Lincoln. Like Lincoln, Kennedy wasn’t elected by the majority of voters. So go get ‘em, tiger!
[Update: Ilya responds:
"Hoffman misses the point. The issue is not that we happened to be right and various liberal commentators were wrong, but that many of the latter couldn’t even concede the possibility that their opponents had a serious case. As I said above, the big mistake here was not thinking that the mandate would be upheld; or if that was a big mistake, I was guilty too. The far more serious error was claiming that this was an easy slam dunk case for the federal government."
There are, of course, many, many examples of liberal commentators predicting this was a slam dunk case on the merits - though there are, as a proportion of law professors, fewer liberal constitutional law professors blogging than the proportion of libertarian law professors blogging, so our samples are skewed. But there are at least two exculpatory possibilities that Ilya might want to address: (1) like Barnett pre-Raich, such commentators were trying to shape the narrative by displaying more confidence than they felt; and (2) constitutional scholars generally would prefer to avoid overly cynical public blog posts like this one, which make it seem like the Supreme Court is a political institution with no real commitment to precedent in most cases. I'm not a constitutional scholar, and my views about the Court are well-known, so it doesn't bother me to see the Wizard. That is: what people say in their blog posts might not have reflected what they would have said if they were betting their TIAA-CREF account on the case.]
April 1, 2012 at 10:46 pm
Posted in: Constitutional Law
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Responses (17)
Mark A. Edwards - April 1, 2012 at 11:01 pm
Their victory lap should be devoted to this proposition:
“We were right and you were wrong, and the fact that you didn’t predict our being right demonstrates that you are still less cynical than you should be at this point.”
Randy Barnett - April 2, 2012 at 12:22 am
Dave,
Does an April 1st link to Larry Solum’s April Fools Day parody, to which I link every year, constitute a Victory Lap? I feel good about how argument went, but I don’t know what the outcome is going to be any more than anyone else outside the Court itself. So any victory lap is way premature. Nor have I blogged about the oral arguments, though of course I did comment to the press and told them pretty much what I just told you. True, I always thought we had a far better chance than most other law professors. Oral argument confirms that much, I think. I still believe we have a good chance, but oral argument does not guarantee that. Have I ever said otherwise?
Mark A. Edwards - April 2, 2012 at 12:24 am
I made my comment before both updates, so I think I should update my comment too.
I think the bitterness expressed by many academics, including myself, about the oral arguments stems not from the fact that the case is not a slam-dunk for the administration, but that the attitude displayed by some members of the Court, and Justice Scalia in particular, suggested a wilful and almost juvenile disregard for (1) the actual content of the ACA (i.e., scoffing at the prospect of reading it) and (2) the facts in evidence (i.e., noting that President Obama was careful not to refer to the mandate as tax; discussing the “smart” young people who didn’t want to buy insurance). It quickly became apparent that Scalia in particular regarded the matter as both a political question and a question that he had the right to decide.
For me, the anger and disappointment is akin to a type of embarassment about my naivete, which apparently somehow returned after Bush v. Gore. I know that there were decent, but weak, arguments against the individual mandate. But I had hoped all members of the Court would treat both arguments seriously.
Brett Bellmore - April 2, 2012 at 6:51 am
So, you’re following up, “You haven’t got a chance!” with, “The ump’s a crook!”? I don’t think you’re dis-confirming the complaint here.
What’s particularly amusing is that a lot of this is coming from people who claim to believe that,
1. The Constitution is hopelessly ambiguous. (But that ambiguity can only rightfully be resolved in their favor?)
2. Legal realism. (But the Court will only be right by definition if it agrees with them?)
3. The Constitution evolves. (But only in ways they like?)
The complaints, in short, might make some kind of sense coming from a right-wing troglodyte who proclaims that the Constitution’s meaning is etched in stone, and clearly, too. It makes no sense coming from the people who are actually making the complaints.
Here’s what I think has happened: Over the course of the last 80 years or so, there’s been a process going on, (Call it the Constitution evolving, or the judiciary becoming more corrupt, it doesn’t matter which.) whereby Court rulings over time have become more and more open to increased Congressional and Executive claims of power. We didn’t get where we are today in one abrupt step, it’s been a gradual transition.
And the end point of the process is quite evident: Enumerated powers doctrine totally abolished, all sovereignty transferred to the federal government, with the states mere administrative conveniences. The sort of government “progressives” would have written a constitution for, if they’d written the Constitution, rather than the people who actually did.
But, here’s the problem: You got ahead of yourselves. You assumed the process had already arrived at it’s end state. Extrapolating, you figured the mandate should be easily approved of.
But the process hasn’t reached that end point, not only to your surprise, but the surprise of many on the right. Maybe it’s slowing, approaching some asymptote short of the end point you desire. Maybe it’s not even a one-way process, and can occasionally restore limits, not destroy them.
In short, you just got ahead of yourselves, and tried for home plate too early in the date. Cue record scratching…
Dave Hoffman - April 2, 2012 at 8:25 am
Randy,
If I misunderstood your post, I’m quite sorry. Obviously, there are good reasons for you to not to pile on at the moment. I will be interested to read your comments in late June.
Shag from Brookline - April 2, 2012 at 8:29 am
Those crowing now may end up eating crow, feathers and all.
Jonathan H. Adler - April 2, 2012 at 8:34 am
Dave –
Like Ilya and Randy, I think you’re misconstruing our comments. The question was never whether or not the challenges wold prevail — I have never said I thought they would — but whether it was a close case on the merits. I believe that anyone who dug deeply into this issue, and accepted the relevant precedents and arguments on their own terms, realized there were serious anti-mandate arguments with which its defenders would have to contend. The SG’s office has always recognized this, and the oral arguments confirmed the Court did so as well. Even the questioning of the “liberal” justices served to illustrate the tension between the pro-mandate arguments and the principles underlying the post-1990 federalism cases.
As for my alleged foray into social science, I cited some research by Jonathan Haidt and expressed curiosity about the methodology and breadth of the findings. Since you seem to think he’s wrong, what is this “weight of evidence” that you believe undermines his findings?
JHA
Dave Hoffman - April 2, 2012 at 8:36 am
SFB: That may be – I have no idea what will happen. There’s only one guy who does, and I doubt he’s anonymously commenting here or on the VC. Though wouldn’t that be funny?
The question that really engages my interest is the Adler/Somin claim that liberals got this very wrong because of some psychological flaw in their makeup that renders them incapable of understanding conservatives’ worldviews. If that were right, it’d be a big deal and would, I think, have tons of public policy implications. For example, we might imagine debiasing strategies ought to be more focused on liberals, because of their stubbornness. (Libertarians might even like this – paternalism for paternalists!)
Dave Hoffman - April 2, 2012 at 8:41 am
JHA
1. I’m not the only one misconstruing you.
2. On the evidence, I’d start here: http://www.culturalcognition.net/blog/2012/3/24/empirical-evidence-that-liberals-misconstrue-empirical-evide.html. We can talk more more (offline) about Haidt’s work. Or perhaps we can organize some kind of public symposium about it, since it appears to be trending.
DavidBernstein - April 2, 2012 at 8:41 am
You are being quite unfair to Jonathan. He quoted someone else discussing the social science evidence, and then was non-committal about it. Here’s what he wrote: “I’ve certainly witnessed the phenomenon Haidt describes, but generally assumed it was limited to certain contexts in which there are numerical imbalances between those on the left and the right that affects the degree of interaction people have with those of differing views. I will be curious to read more about this research and the limitations of its findings.” That is not accurately summarized as a “claim that liberals got this very wrong because of some psychological flaw in their makeup that renders them incapable of understanding conservatives’ worldviews.”
Beyond that, I join my co-bloggers’ objection that none of us have predicted that the challengers will win, either before or after oral argument.
Dave Hoffman - April 2, 2012 at 9:06 am
David
It’d be counterproductive for you to explicitly claim that the challengers will win, since you are writing to an audience that includes the referees. Why would you dare them to prove you wrong? But I don’t think you can so easily back off of the satisfied smell that many – many – observers have caught coming off the blog. (See, e.g., http://volokh.com/2012/03/28/creditingblaming-the-vc-for-the-possible-defeat-of-the-individual-mandate/) And rightly so! Aren’t you explicitly arguing that we should interpret questions during oral arguments as signals about the merits?
As for the social science and the claims made for it, I think I’m being fair to you and to JHA. In his proto-post, he made three claims explaining the “surprising” argument:
1. Liberal academics are too focused on theory;
2. A lack of ideological diversity;
3. Haidt’s theory of liberal illiberalism.
I didn’t read these as tentative, but rather additive. And, lest I be misconstrued, I think it’s perfectly fair to ask if particular ideological dispositions are more or less susceptible to motivated cognition. I just think the answer – as attractive as that proposition may be – is that they are not.
By contrast, JHA might be right that groupthink influenced the legal academy’s views. (Though this would not explain Kerr, or the prevailing wisdom in the Supreme Court bar, or Barnett’s hurt surprise after Raich, or Lessig’s hurt surprise after Eldred (http://lessig.org/blog/2003/01/the_silent_five.html).
My own view is that we spend a disproportionate amount of time on Supreme Court Kreminology (as a blogger put it). But, as I earlier wrote, I’m not sure that public predictions about how the court would act fit well with the private cynicism that I hear in the faculty lounge. I think if you pushed legal academics – even liberal ones – about how the court will act on any important and contested question, they’d do what conservatives do. They’d hold up their hand, and count to five.
Shag from Brookline - April 2, 2012 at 9:08 am
Perhaps there is a new book in the making: “Rehabilitating VC: … ” My, my, how insensitive even after April Fools reaction at VC. “Caw, caw, caw!”
Jonathan H. Adler - April 2, 2012 at 10:59 am
Dave –
You may not be the only person misconstruing me, but perhaps that just proves my original point.
More seriously, I don’t see how anything I wrote could be construed as suggesting I believe liberals have “some psychological flaw in their makeup that renders them incapable of understanding conservatives’ worldviews.” The suggestion that those who focus on theory aren’t good at answering practical questions is not new, nor is the idea that those less familiar with certain arguments or perspectives have a difficult time understanding them, and neither suggests there is anything unique about “liberals” in this regard. All of the factors I identified could apply equally to conservatives in contexts in which conservative viewpoints are more prevalent than liberal ones. In an update I cited the Haidt research, which might be construed to suggest liberals are different, but I then expressed skepticism and offered a context-based explanation for the results. Again, nothing here to suggest I believe liberals have some sort of “psychological flaw.”
JHA
Jonathan H. Adler - April 2, 2012 at 11:01 am
An addendum: Just to be clear, my post did not make a claim about motivated reasoning, but about comprehension based on exposure to alternative views. So the Kahan research, with which I’m familiar, is not really responsive to (nor contrary to) my claims or the Haidt conclusions I cited.
JHA
steph tai - April 2, 2012 at 11:23 am
All this talk of bias (as well as whether or not there really was talk about bias) reminds me of a facebook discussion I’m having with some friends about how, if one were to take a more positivist view of the Constitution (which I’m kind of agnostic — or maybe a better word is undecided — on), how an outsider might determine what is the “correct” interpretation of the Constitution in given circumstances. I’m especially curious about this question because generally I’m more interested in the relationship between experts in general (usually scientists, but here, I guess, legal scholars) with the public. Such a conversation could apply to this conversation (about what is a “slam dunk” case or not), I’d think.
So I wonder how well some of the debiasing experiments proposed by those in the expert judgment literature might work in this circumstance. Like suppose we had tried with law professors what’s suggested on page 18-20 here (http://www.concept.ntnu.no/attachments/058_Kirkebooen%20%20-%20Expert%20judgement.pdf) and tried out some kind of prediction market for law profs for Supreme Court judgments. Or (what’s more intriguing to me) the Delphi technique. Does anyone think that would have changed things?
Just curious!
David Bernstein - April 2, 2012 at 11:47 am
“It’d be counterproductive for you to explicitly claim that the challengers will win, since you are writing to an audience that includes the referees. Why would you dare them to prove you wrong?”
Um, because it’s very unlikely that any Supreme Court Justice cares what some blogger thinks?
“But I don’t think you can so easily back off of the satisfied smell that many – many – observers have caught coming off the blog.”
That’s Paco Rabbone, actually.
JoeJP - April 3, 2012 at 10:39 am
“whether it was a close case on the merits”
It wasn’t. Like Linda Greenhouse noted, this doesn’t mean they won’t rule against the provision. But, objectively speaking, not really a close case. This was repeatedly spelled out in comments over at VC.
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