Among its many other vices, does legal education teach you to argue less persuasively and in a way that unsettles civil society? That accusation is implicit in Dan Kahan’s new magisterial HLR Forward, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law. In Some Problems, Kahan considers the Supreme Court’s perceived legitimacy deficit when it resolves high-stakes cases. Rejecting the common criticism that focuses on the ideal of neutrality, Kahan argues than the Court’s failure is one of communication. The issues that the Court considers are hard, the they often turn on disputed policy judgments. But the Justices resort to language which is untempered by doubt, and which advances empirical support that is said to be conclusive. Like scientists, judges’ empirical messages are read by elites, and thus understood through polarizing filters. As a result, Justices on the other sides of these fights quickly seek to undermine these purported empirical foundations – - as Justice Scalia argued last term in Plata:
“[It] is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism.”
Kahan resists Scalia’s cynicism — and says that in fact Scalia is making the problem worse. Overconfident display encourages people to take polarized views of law, to distrust the good faith of the Court and of legal institutions, and to experience the malady of cognitive illiberalism. Kahan concludes that Courts ought to show doubt & humility – aporia – when deciding cases, so as to signal to the other justices & the public that the losing side has been heard. Such a commitment to humble rhetoric would strengthen the idea of neutrality, which currently is attacked by all comers. Moreover, there is evidence that these sorts of on-the-one-hand/on-the-other-hand arguments do work. As Dan Simon and co-authors have found, people are basically likely to consider as legitimate arguments whose outcomes they find congenial. But when they dislike outcomes, people are better persuaded by arguments that are explicitly two-sided: that is, the form of very muscular rhetoric typical in SCOTUS decisions is likely to be seen, by those who disagree with the Court’s outcomes, are particularly unpersuasive, illegitimate, and biased.
I love this paper — it’s an outgrowth of the cultural cognition project, and it lays the groundwork for some really neat experiments. So the point of the post is partly to encourage you to go read it. But I wanted to try as well to connect this line of research to the recent “debate” about Law Schools.