“What is really different — and dangerous — about today’s justices is not partisanship, but rather a cognitive trap that Nobel Prize-winning psychologist Daniel Kahneman has called the “most damaging” of all human biases: overconfidence. Put simply, today’s justices possess a frightening degree of certainty that they can alone answer society’s most pressing problems with just the right lawyerly argument.
The roots of this certitude developed, perhaps surprisingly, from a noble place. When confronted with legal challenges to a slew of racially discriminatory laws in the mid-20th century, the justices needed the ability to proclaim those laws inconsistent with our Constitution’s one, true meaning. For good and important reasons, that is exactly what the court did.
But the power to declare the law’s meaning — and to override democratically enacted policies — is seductive. High constitutional theories such as living constitutionalism and originalism were advanced to justify judicial intervention in disputes ranging from guns to abortion and religion to the death penalty. And our overconfident Supreme Court was born.The evidence of this overconfidence is everywhere around us, and it affects both sides of the political spectrum. One rough measure is the frequency with which the court overrules the judgment of our nation’s elected lawmakers. Whereas the court struck down less than one act of Congress per year between 1788 and 1994, the court has invalidated an average of more than three federal laws per year since then.”
“Perhaps most significantly, the court’s overconfidence problem is apparent in its opinions. In overturning the right to abortion, for example, Justice Samuel Alito’s opinion declared that the legal reasoning embraced by respected jurists such as Sandra Day O’Connor, Anthony Kennedy, and Thurgood Marshall was “far outside the bounds of any reasonable interpretation.” Never mind that the “most important historical fact” on which Alito rested his own conclusion — the number of states that banned abortion in 1868 — was riddled with historical inaccuracies.
Opinions reaching liberal results often reflect overconfidence bias, too. In Kennedy v. Louisiana, for example, the court struck down the death penalty for cases of aggravated child rape. Although the Constitution was far from clear on the matter and elected officials had reached differing views, a bare five-justice majority wrote that “in the end,” it is “our judgment” that must decide “the question of the acceptability of the death penalty.””
“Overconfidence bias has led to the court’s legitimacy crisis by unleashing the justices’ underlying partisan instincts. Humble justices can overcome those instincts by admitting uncertainty and deferring to others.”