So it turns out that I'm giving a talk at the annual "Judicial Conference" (a kind of summer retreat) of the U.S. Court of Appeals for the D.C. Circuit on Friday morning. The US Supreme Court -- unless something pretty weird happens -- will have issued its ruling on the constitutionality of the Affordable Care Act the day before (i.e., tomorrow, Thursday). Speaking right after me (at least so it says on the schedule) ... Chief Justice Roberts.
I had been planning to give my standard talk on the Employee Retirement Income Security Act (ERISA), of course. But it occurs to me maybe I should address some other topic?
How about the political neutrality of the Supreme Court?
I could start with this proposition: “The U.S. Supreme Court is a politically neutral decisionmaker.”
I don't know how the judges in the room will react -- will they laugh, e.g.? -- but I know that if I was talking to a representative sample of U.S. adults, the vast majority would disagree with me. In a poll from a couple weeks ago, only 13% of the respondents said the Justices decide cases "based on legal analysis," whereas 76% indicated that they believe the Justices "let personal or political views influence their decisions."
Granted, this was before the Court's 5-3 decision on the Arizona "show me your papers" law a couple days ago; maybe that restored the public's confidence?
But assuming not, I think I'll tell the judges, including Chief Justice Roberts, that I'm very confident that the public has no grounds for believing this.
It's not that I know that the Justices are behaving like the "neutral umpires" that Chief Justice Roberts, in his confirmation hearing, pledged to be.
But I do have pretty good reason to think that even if the Court is deciding cases in a "politically neutral" fashion, most people wouldn't think it is -- because of cultural cognition.
In fact, if I were to give my "standard talk" on Friday, I'd discuss the contribution that cultural cognition makes to our society's "science communication problem."
People can't determine through their own observations whether, say, the earth's temperature is or isn't increasing, or whether deep geologic isolation of nuclear wastes is safe or not. Rather they must rely on social cues to determine what facts have been authoritatively established by science.
In an environment in which positions on those facts become associated with opposing cultural groups, cultural cognition will impel diverse groups of citizens to construe those cues in opposing patterns. The result will be intense cultural conflict over the validity of evidence generated by experts' engaged in good-faith application of valid scientific methods.
The Supreme Court (and the judiciary as a whole), I believe, have a comparable "neutrality communication" problem. Just as citizens can't resolve on their own complex empirical issues relating to envirionmental risks, so they can't determine on their own technical legal issues relating to the constitutionality of legislation like the Affordable Care Act and the Arizona "show me your papers" law. To figure out whether the Court is deciding these questions correctly, they must rely on social cues--their interpretations of which will be distorted by cultural cognition in the same manner as their interpretations of social cues relating to "scientific evidence" on risks like climate change and nuclear power.
The existence of widespread conflict over the neutrality of the Court is thus no better evidence that the Justices are politically biased, or their methods invalid, than widespread conflict over risk is evidence that scientists are biased or their methods invalid.
Or to put it another way, neutral decisions of constitutional law (ones made via the good-faith, expert application of professional norms appropriately suited for enforcement of individual liberties in a democratic society) do not publicly certify their own neutrality -- any more than valid scientific evidence publicly certifies its own validity.
Scientists now get that doing valid science and communicating it are two separate things-- and that the latter itself admits of and demands scientific understanding. The National Academy of Science's recent "Science of Science Communication" colloquium attests to that.
So I guess I'll ask Chief Justice Roberts, and his colleagues on the D.C. Circuit (who are really tremendous judges -- the judiciary equivalents of MIT physicists) this: isn't it time for the legal profession to get that doing neutral constitutional law and communicating it are two separate things, too, and that the latter is something that also could be done better with the guidance of scientific understanding of how citizens in a diverse society know what they know?