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Monday
Feb152016

Plata's Republic: Justice Scalia and the subversive normality of politically motivated reasoning . . . .

From  Kahan, D.M. The Supreme Court 2010 Term—Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law Harv. L. Rev. 126, 1-77 (2011):

 

. . . Plata's Republic . . .

Civis: It is “fanciful, you say, to think that three district court judges “relied solely on the credibility of the testifying expert witnesses”[1] in finding that release of the prisoners would not harm the community?

Cognoscere Illiber: Yes, because “of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.”[2]

Civis: “Of course” judges with “different policy views” would have formed different beliefs about the consequences if they had evaluated the same expert evidence? Why? Surely the judges, like all nonspecialists, would agree that these are matters outside their personal experience. Are you saying the judges would ignore the experts and decide on partisan grounds?

Cognoscere Illiber: No. “I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments” on such matters.[3] The “expert witnesses” here were of the sort trained to make “broad empirical predictions”—like whether “deficit spending will . . . lower the unemployment rate” or “the continued occupation of Iraq will decrease the risk of terrorism.”[4]

Civis: But people normally assert that their policy positions on criminal justice, economic policy, and national security are based on empirical evidence. It almost sounds as if are you saying things are really the other way around—that what they understand the empirical evidence to show is “necessarily based in large part upon policy views.”[5]

Cognoscere Illiber: Exactly what I am saying! Those sorts of “factual findings are policy judgments.”[6] Thus, empirical evidence relating to the consequences of law should be directed to “legislators and executive officials”—not “the Third Branch”[7]—since in a democracy it is the people’s “policy preferences,” not ours, that should be “dress[ed] [up] as factual findings.”[8]

Civis: Ah. Thanks for telling me—I had been naively taking all the empirical arguments in politics at face value. Silly me! Now I see, too, that those naughty judges were just trying to exploit my gullibility about policy empiricism. Shame on them!


[1] Plata, 131 S. Ct. at 1954 (Scalia, J., dissenting).

[2] Id.

[3] Id.

[4] Id. at 1954-55.

[5] Id. at 1954.

[6] Id.

[7] Id.

[8] Id. at 1955.

 

*  *  *

Brown v. Plata was among the most consequential decisions of the 2010 Term—in multiple senses. In Plata, California attacked an order, issued by a three-judge federal district court, directing the state to release more than 40,000 inmates from its prisons. It was not disputed that California prisons had for over a decade been made to store double their intended capacity of 80,000 inmates. The stifling density of the population inside—“200 prisoners . . . liv[ing] in a gymnasium,” sleeping in shifts and “monitored by two or three guards”; “54 prisoners . . . shar[ing] a single toilet”; “50 sick inmates . . . held together in a 12- by 20-foot” cell; “suicidal inmates . . . held for prolonged periods in telephone-booth sized cages” ankle deep in their own wastes—was amply documented (with photographs, appended to the Court’s opinion, among other things). The awful effect on the prisoners’ mental and physical health was indisputable, too (“it is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days”). These conditions, the district court concluded, violated the Eighth Amendment. The district court also saw that there was no prospect whatsoever that the state, having repeatedly rejected prison-expansion proposals and now in a budget crisis, would undertake the massive expenditures necessary to increase prison capacity and staffing. Accordingly, it ordered the only relief that, to it, seemed, possible: the release of the number of inmates that the court deemed sufficient to bring the prison’s into compliance with minimally acceptable constitutional standards.

The Supreme Court, in a five to four decision, affirmed. The major issue of contention between the majority and dissenting Justices was what consequence the ordered prisoner release would have on the public safety, a consideration to which the district court was obliged to give “substantial weight’” by the Prison Litigation Reform Act of 1995. The district court devoted 10 days of the 14-day trial to receiving evidence on this issue, and concluded that use of careful screening protocols would permit the state to release the necessary number of inmates “in a manner that preserves public safety and the operation of the criminal justice system.”

The determinations underlying this finding, Justice Kennedy noted in his majority opinion, “are difficult and sensitive, but they are factual questions and should be treated as such.” The district court had “rel[ied] on relevant and informed expert testimony” by criminologists and prison officials, who based their opinion on “empirical evidence and extensive experience in the field of prison administration.” Indeed, some of that evidence, Justice Kennedy observed, had “indicated that reducing overcrowding in California’s prisons could even improve public safety” by abating prison conditions associated with recidivism. Like its other findings of fact, the district court’s determination that the State could fashion a reasonably safe release plan was not “clearly erroneous.”

The idea that the district court’s public safely determination was a finding of “fact” entitled to deferential review caused Justice Scalia to suffer an uncharacteristic loss of composure. Deference is due factfinders because they make “determination[s] of past or present facts” based on evidence such as live eyewitness testimony, the quality of which they are “in a better position to evaluate” than are appellate judges confined to a “cold record,” he explained. The public-safety finding of the three-judge district court, in contrast, consisted of “broad empirical predictions necessarily based in large part upon policy views.” “The idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful,” Scalia thundered.

Justice Scalia’s reaction to the majority’s reasoning in Plata is reminiscent of Wechsler’s to the Court’s in Brown. Like Scalia, Wechsler had questioned whether the finding in question—that segregated schools “retard the[] educational and mental development” of African American children—could bear the decisional weight that the Court was putting on it. But whereas Wechsler had only implied that the Court was hiding its moral-judgment light under an empirical basket—“I find it hard to think the judgment really turned upon the facts [of the case]”—Scalia was unwilling to bury his policymaking accusation in a rhetorical question. “Of course they [the members of the three-judge district court] were relying largely on their own beliefs about penology and recidivism” when they found that release was consistent with—indeed, might even enhance—public safety, Scalia intoned. “And of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.” “[I]t is impossible for judges to make ‘factual findings’ without inserting their own policy judgments, when the factual findings are policy judgments.”

Justice Scalia’s dissent is also akin to the reaction to “empirical factfinding” in the Supreme Court’s abortion jurisprudence. Justice Blackmun’s majority opinion in Roe v. Wade cited “medical data” supplied by “various amici” to demonstrate that “[m]odern medical techniques” had dissolved the state’s historic interest in protecting women’s health. “[T]he now-established medical fact . . . that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth” supported recognition of an unqualified right to abortion in that period. Ely, among others, challenged the Court’s empirics: “This [the medical safety of abortions relative to childbirth] is not in fact agreed to by all doctors—the data are of course severely limited—and the Court's view of the matter is plainly not the only one that is ‘rational’ under the usual standards.” In any case, “it has become commonplace for a drug or food additive to be universally regarded as harmless on one day and to be condemned as perilous on the next”—so how could “present consensus” among medical experts plausibly ground a durable constitutional right?

It can’t. “[T]ime has overtaken some of Roe’s factual assumptions,” the Court noted in Planned Parenthood of Southeastern Pennsylvania v. Casey. [A[dvances in maternal health care allow for abortions safe to the mother later in pregnancy than was true in 1973, and advances in neonatal care have advanced viability to a point somewhat earlier.” Accordingly, culturally fueled enactments of and challenges to abortion laws continue—repeatedly confronting the Justices with new empirical questions to which their answers are denounced as motivated by “personal values.” * * *

The only citizens who are likely to see the Court’s decision as more authoritative and legitimate when it resorts to empirical fact-finding in culturally charged cases are the ones whose cultural values are affirmed by the outcome. * * *

This factionalized environment incubates collective cynicism—about both the political neutrality of courts and about the motivations behind empirical arguments in policy discourse generally. Indeed, Justice Scalia’s extraordinary dissent in Plata synthesizes these two forms of skepticism.

It was “fanciful,Scalia asserted, to think that the three district court judges “relied solely on the credibility of the testifying expert witnesses.” One might, at first glance, see him as merely rehearsing his standard diatribe against “judicial activism.” But this is actually a conclusion that Scalia deduces from premises—ones that don’t enter into his standard harangue—about the nature of empirical evidence and policymaking. The experts’ testimony, he explains, dealt with “broad empirical predictions”—ones akin to whether “deficit spending will . . . lower the unemployment rate,” or whether “the continued occupation of Iraq will decrease the risk of terrorism.” For Scalia, the beliefs one forms on the basis of that sort of evidence are “inevitably . . . based in large part upon policy views.” It follows that “of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate.” “I am not saying,” Justice Scalia stresses, “that the District Judges rendered their factual findings in bad faith.” “I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments” when assessing empirical evidence relating to the consequences of governmental action. , when the factual findings are policy judgments.”

In effect, Scalia is telling us to wise up, not to be snookered by the Court. Sure, people claim that their “policy positions” on matters such as crime control, fiscal policy, and national security are based on empirical evidence. But we all know that things are in fact the other way around: what one makes of empirical evidence is “inevitably” and “necessarily based . . . upon policy views.” At one point, Scalia describes the district court judges as having “dress[ed]-up” their “policy judgments” as “factual findings.” But those judges weren’t, in his mind, doing anything different from what anyone “inevitably” does when making “broad empirical predictions”: those sorts of “factual findings are policy judgments.” Empirical evidence on the consequences of public policy should be directed to “legislators and executive officials” rather than “the Third Branch,” Scalia insists. The reason, though, isn’t that the former are better situated to draw reliable inferences from the best available data. On the contrary, it is that it is a conceit to think that reliable inferences can possibly be drawn from empirical evidence on policy consequences—and so “of course” it is the “policy preferences” of the majority, rather than those of unelected judges, that should control.

It is hard to say what is more extraordinary: the substance of Scalia’s position or the knowing tone with which he invites us to credit it. One might think it would be shocking to see a Justice of the Supreme Court so brazenly deny the intention (capacity even) of democratically accountable officials to make rational use of science to promote the common good. But Scalia could not expect his logic to persuade unless he anticipated that readers would readily concur (“of course”) that empirical arguments in policy debate are a kind of charade.

Scalia, of course, had good reason to expect such assent. His argument reflects the perspective of someone inside the cogntively illiberal state—who senses that motivated reasoning is shaping everyone else’s perceptions, and who accepts that it must also be shaping his, even if at any given moment he is unaware of its influence. We have all experienced this frame of mind. The critical question, though, is whether we really believe that what we are experiencing when we feel this way is inevitable and normal—a style of collective engagement with empirical evidence that should in fact be treated as normative, as Scalia asserts, for the performance of our institutions. I don’t think that we do . . . .

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Reader Comments (18)

==> ...and who accepts that it must also be shaping his, even if at any given moment he is unaware of its influence.

I wonder if he accepted that his interpretation of the Constitution was likewise constrained and influenced by his own policy beliefs?

February 16, 2016 | Unregistered CommenterJoshua

In other words, it seems to me that the notion of "originalism" lies in direct contradiction to accepting the universality of motivated cognition.

February 16, 2016 | Unregistered CommenterJoshua

His argument reflects the perspective of someone someone inside the cognitively illiberal state—who senses that motivated reasoning is shaping everyone else’s perceptions, and who accepts that it must also be shaping his, even if at any given moment he is unaware of its influence. We have all experienced this frame of mind.

Dan, I find it profoundly interesting that you see motivated reasoning as inconsistent with liberalism. Have you discussed this "cognitively illiberal state" before elsewhere on the blog, or did you just make a new term?

Joshua, I can understand why originalism was so important to him. Based on what his clerks wrote here, I think he thought that the further a legalist strays from the text, the more their reasoning is subject to their own moral sense, and that it shouldn't be legal to bind society at large to any person's moral sense.

February 16, 2016 | Unregistered Commenterdypoon

Thank you muchly.

Oh! And here I thought that "state" was a mental state. You meant a governmental state - a state of a State! LOL...

February 16, 2016 | Unregistered Commenterdypoon

@dypoon--

It's definitely a govt state but both!

February 16, 2016 | Registered CommenterDan Kahan

@Joshua--

Nice point. Would have been a great one to make inthe paper if I had thought of it myself or you had mentioned it to me then

February 16, 2016 | Registered CommenterDan Kahan

dypoon -

==> I think he thought that the further a legalist strays from the text, the more their reasoning is subject to their own moral sense, and that it shouldn't be legal to bind society at large to any person's moral sense.

I think that determining who has strayed from the text, and when, is inherently subjective, and so I reject the notion that one person has an inside track to "original intent." We all interpret the written word based on our own experiences, beliefs, and values.

I think that Scalia's notion that there is a fundamental difference between "originalism" and "strict constructionsim" (which he disdained) is interesting, but ultimately I'm not sure I can buy it.

February 16, 2016 | Unregistered CommenterJoshua

We all interpret the written word based on our own experiences, beliefs, and values.

If I recall the interviews Scalia gave in his old age correctly, this is the exact sensibility that Scalia at his best would have said belongs not in professional judgment.

I think more precisely, his position was, given that context and sensibility is necessary to interpret the Constitution, those contexts and sensibilities should not be mine, or yours, but the Framers' as best as we can understand them through historical analysis. I suspect he had to confront this demon directly because he himself was profoundly Catholic, and knew he was, and knew his civic duty not to let his own religious views color his professional judgment. He certainly believed himself capable of divorcing the two; whether he was successful in doing so is how I think we here at this blog would evaluate his legacy.

February 16, 2016 | Unregistered Commenterdypoon

And yet postmodernism is routinely and automatically classed as "leftist thought", by a lot of liberals as well as conservatives/libertarians. I've been having this argument with people.

February 16, 2016 | Unregistered CommenterHal Morris

Indeed. Postmodernist thought by and large is radical thought, because modernist thought is establishment thought. But not all radicals are leftist. The rightist radicals, by and large, think that because they're supporting the same people who have been in power, that they're not advocating for any change. They entertain the fiction that their radicalism is conservative, when it's really just radically pro-establishment.

February 16, 2016 | Unregistered Commenterdypoon

This may be true of Scalia, but even back in the day of the founders of the country, many of them knew that the times, they were a changin' and a document like the Constitution would need to do likewise. "I think he thought that the further a legalist strays from the text, the more their reasoning is subject to their own moral sense, and that it shouldn't be legal to bind society at large to any person's moral sense."

What is needed is more educators like the teacher depicted in the link below. His willingness to try to actually get his students to think critically is surprising to me given his isolated, conservative, rural, and highly polarized location. Many teachers duck their heads down in less trying circumstances.

http://www.opb.org/news/series/burns-oregon-standoff-bundy-militia-news-updates/refuge-occupation-burns-high-school-teaching/#.VsNIQrQQF2M.google_plusone_share

February 16, 2016 | Unregistered CommenterGaythia Weis

Postmodernism got some of its impetus from people being fed up with both capitalism and Marxism, and they criticize post-Enlightenment thought as the West's way of oppressing everyone else. Some representatives come up with things like "privileging" written sources of history over, say the oral history of Pacific Islanders or Innuit is Western arrogance.

Modern right wing populism tends likewise to attack intellectual authority as representing liberal elitism, and if someone catches Roger Ails being candid about getting Obama viewed as "socialist" or even Marxist, and how Fox put that one over on people, you are apt to just get scoffing at the idea of journalism aiming at objectivity. The attitude is "nobody does it, let's abandon all pretense". And the Christian right is sometimes quite explicit in attacking the Enlightenment (and "secular humanism").

February 16, 2016 | Unregistered CommenterHal Morris

A problem with "originalism" from a historic point of view (or just observing two parties sign a contract), when a difficult compromise has been worked out, it should be no surprise if one party or faction would espouse one interpretation while the other espouses a different one. All we know is they agreed on the words, and drastic changes in possible referents may make it impossible to interpret the words today exactly as they were meant then. "Right to bear arms" seems clearly to refer to what were bearable arms; the sort that a highly trained soldier could fire 2 or 3 times in a minute. If you could go back and poll all those who voted for the 2nd amendment, and ask "Do you think the concept of arms held then would apply to an AK-47 or Uzzi"?, most likely some would say yes and some no, and some would say "Hey, we stuck that bit about a 'well regulated militia' there for a reason".

February 16, 2016 | Unregistered CommenterHal Morris

@HalMorris/@Gaythia/@Joshua/@Dyphoon:

Check out the originalist conundrum that Scalia & Thomas found themselves in in Brown v. Entertainment
Merchants Ass’n, 131 S. Ct. 2729 (2011):

Scalia: First Amendment protects violent videogames b/c Thomas Jefferson's son could go to the library and read about how Hansel & Gretel incinerated their kidnapper in an oven.

Thomas: First Amendment doesn't protect violent videogames b/c Ben Franklin didn't invent computers until after the Constitution was ratified.

February 16, 2016 | Registered CommenterDan Kahan

dypoon -

==> I think more precisely, his position was, given that context and sensibility is necessary to interpret the Constitution, those contexts and sensibilities should not be mine, or yours, but the Framers' ,,,

And I'm saying that I think that is pretty much bullshit. The meaning of words is inherently constructed by the reader through his'/her process of interpretation. They don't have some abstracted or generic or non-subjective meaning. We can certainly strive to interpret them as closely as intended, but IMO, you're fooling yourself if you think that your interpretations can exist absent the influence of your own experiences and beliefs, and somehow be a direct extension of original intent.

So I have no problem with someone saying that we should strive to interpret them as closely as originally intended as possible, but when within a legal context where judges are making decisions that affect everyone's lives, I have a problem if they claim that their own interpretation of intent is inherently superior than that of someone else's, or claims an understanding of original intent that is absent the influence of their own personal biases.

==> as best as we can understand them through historical analysis.

And there, IMO, you set up a false dichotomy. It isn't an either/or of an application of our own context and sensibilities as mutually exclusive of interpreting original intent. They don't exist in some mutually exclusive form -as you stated in your syntax (even if it isn't necessarily what you intended!).

And besides, certainly, you would agree that the process of historical analysis is inherently subjective, right?

February 16, 2016 | Unregistered CommenterJoshua

Yeah, Joshua, you pretty much sum up the reasons why Scalia was my second-least favorite of the Justices, and the one I frankly most hoped to see dead soon. (My least favorite is Kennedy, who really seems to make decisions in the most Holmesian way, based upon his own strange and personal notions of disgust, dignity, and conscience.) You can argue, and I agree with you here, that originalism just kicks the can down the road, and provides only the service of cloaking one's present prejudices in the language of a bygone era.

Yet inasfar as the purpose of any American legal philosophy is to produce new avenues of legal inquiry and new rationalizations for the US Constiution to generalize to present circumstances, originalism has been an immensely fruitful and successful idea. Originalism demanded answers to necessary historical questions about the construction of the Constitution, questions that now must be answered no matter which side of the fence you're on. It has proven more useful as a framing than as any coherent set of principles. I definitely have hope that originalism used to argue for values, as opposed to positions, will help the Supreme Court recognize the need to protect emerging rights relevant to contemporary society.

It's just a pity that Scalia so often used originalism as an excuse to be lazy about history, instead of more careful with it.

February 17, 2016 | Unregistered Commenterdypoon

Nice comment, dypoon An interesting read.

February 17, 2016 | Unregistered CommenterJoshua

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