gave a talk last night at Harvard Law School in connection with the Supreme Court Foreword. Below is an *outline* of points I made. It is *not* text of my talk; I spoke extemporaneously & merely used the outline as something to think about as I thought about what to say in afternoon. (Maybe I'll try to remember what I said--was not nearly so dense as this-- & write it down, but I doubt it!) "Plata's Republic" is play on case Brown v. Plata in which Scalia's dissent looks motivated reasoning in the eye & proclaims it the truth of the role of empirical claims in democratic policy deliberations (I think the most surprising thing I've ever seen in U.S. Reports).
1. My basic claim is that political conflict over the neutrality of the Supreme Court is generated by psychological dynamics unrelated to whether the Justices are genuinely partisan or whether genuine neutrality is possible. That is, such conflict can be fully explained even assuming that neutrality is meaningful and that the Court is an acceptably neutral decisionmaker. If such conflict is undesirable—as I submit it is—then we must perfect our understanding of nature of these dynamics and of how to control them.
2. We can make sense of these dynamics by considering political conflict over policy-relevant science. Valid science does not publicly certify itself: because citizens are not in a position to reproduce scientific findings on their own, they must necessarily rely on social cues to certify for them what insights have been genuinely established through the use of valid scientific means. As a result of motivated reasoning, diverse groups of citizens will often construe those cues in opposing ways. When that happens, there will be political conflict over science notwithstanding its validity and notwithstanding the political impartiality and good faith of scientists. The existence of such conflict, moreover, will impede adoption of policies that effectively promote ends—including public health, national security, and economic propserity—that diverse citizens agree are the appropriate objects of law.
3. The dynamics that generate political conflict over the Supreme Court’s constituitional decisionmaking are exactly the same ones that generate political conflict over policy-relevant science. Just as they cannot verify the validity of science on their own, so citizens cannot verify the neutrality of constitutional decisionmaking on their own; they must rely on social cues to certify the validity of such decisionmaking. In this context, too, motivated reasoning will often drive citizens of diverse values to diverge in their assessments of what those cues mean. Politically diverese citizens will disagree about the neutrality of constitutional decisionmaking in such circumstances despite the impartial application of valid doctrinal rules for enforcing the state’s obligation to be neutral in the manner that citizens of diverse values agree it should be. Such disagreement, moreover, will itself vititiate the value of the impartial application of those doctrines insofar as the benefit of neutrality consists largely in public confidence that the law is not imposing on them obligations incompatible with respect for the freedom of diverse citizens to pursue happiness on terms of their own choosing.
4. Both of these problems—political conflict over policy-relevant science and political conflict over constitutional law—reflect communication deficits. The impediment that political conflict poses to the adoption of informed policies is the price we pay for failing to recognize that d oing valid science and communicating the validity of science are entirely different things. Likewise, some portion of the toll that political conflict over Supreme Court neutrality exacts from our experience of liberty—likely a very large portion of it—reflects our failure to recognize that doing netural decisionmaking and communicating it are entirely different things too. How to shield public policy deliberations from the recurring influences—accidental and strategic—that trigger culturally motivated reasoning with respect to both policy-relevant science and constitutional neutrality are both matters that admit of and demand scientific investigation in their own rights.
5. Developing these sciences—fixing the communication failures of Plata’s Republic—is a mission that lawyers, and the institutions that train them, are ideally situtated to address. It is a central part of the lawyer’s craft to match the content of information with the cultural cues (the social meanings) that enable its comprehension and that vouch for its credibility. Our experience with and sensitivity to this dimension of effective communication can thus help to remedy the sad and costly inattention to it reflected in public policy discourse. Moreover, because a training in law always has been and continues to be a form of preparation for the exercise of significant civic responsibility—we educate Presidents, after all, as well as Supreme Court Justices and Supreme Court advocates—it is perfectly natural that law schools should play a role in perfecting the science of science communication. It is all the more obvious that they are the natural location to address the judiciary’s own peculiar and ironic neglect of the fit between its professional conventions for doing neutral law and the cues that communicate constitutional neutrality. Not only are we ideally positioned to promote scientific inquiry into what effective neutrality communication demands; we are uniquely empowered and responsible for implementing what such investigation can teach us through the self-conscious and enlightened cultivation of our profession’s norms.