Thursday, March 5, 2020

Above the Law Doesn't Get It Either

In the post below, I wrote that Senator Schumer's "apology" missed the point because he was still trying to exert political pressure on the Court.

Most liberal commentators, especially ones who had attended law school, got the point.  (e.g., here, here)  For example, Professor Tribe tweeted "This is exactly right, and it’s not enough that Schumer didn’t and wouldn’t “intend” to threaten the two justices he named. The road to hell is paved with the best intentions."

However, Above the Law missed the point despite the fact that its editors went to top law schools.  (here)  Joe Patrice wrote, "Buddy comedy duo Trump and Roberts got backup from even liberal legal observers who aired their concern that the Supreme Court isn’t being afforded the hushed, unquestioning respect befitting the mythology the profession has built around the body and calling for an apology."  He continued, "But most troublingly, it seems a lot of otherwise level-headed people were less offended by the vaguely violent rhetoric than the idea that Schumer spoke of the justices as the nakedly political actors they are. That he cut through all the pomp and circumstance and pointed to two guys who plopped into their seats through a breakdown of governmental order — one through a seat held up by flagrant disregard of constitutional norms, the other forced through in a mockery of a vetting process while witnesses were just sitting there. Two guys who have demonstrated that legal precedent is a trifling inconvenience in their bid to implement a conservative political agenda as though they… were just Republican legislators in robes."

Patrice's article exhibits the cognitive bias of seeing every thing through politically-tinted glasses (motivated reasoning).  He agrees with everything that supports his liberal views (confirmation bias), and automatically rejects everything that supports conservative views (semmelweis effect), despite the merits of the argument.

I have recently been watching lectures on rationality by Steven Pinker.  (here) (see also Chapter 21 of Pinker's book, Enlightenment Now)   In his lectures, he discusses opinion studies whose outcome depends almost entirely on the responders' political leanings.  Liberals support studies that support liberal positions, while conservatives reject them.  If you change the identical study to make it look it supports their position most conservatives will now support the study while most liberals will reject it.  In other words, many peoples' positions are based on politics, not facts.  In his book, Pinker notes, "the legal scholar Dan Kahan has argued that certain beliefs become symbols of cultural allegiance.  People affirm or deny these beliefs to express not what they know but who they are."  (Pimker at 357)  Pinker calls this approach to "thinking" the "Tragedy of the Belief Commons."  (at 359)

Some people are able to see the truth, despite their politics.  For example, Professor Tribe and other liberals who hold his position on Schumer's statements saw the true point.  Hopefully, Mr. Patrice and the other editors at Above the Law will begin to see their cognitive biases, and start to write articles that tell readers something about the law, rather than something about themselves.

(Scott Fruehwald)

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https://lawprofessors.typepad.com/legal_skills/2020/03/above-the-law-doesnt-get-it-either.html

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