Opinion | The Supreme Court Is Infected With the ‘Most Damaging’ Human Bias

“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.”

https://www.politico.com/news/magazine/2023/08/30/supreme-court-partisanship-unpopular-00113401

The case for optimism about the Supreme Court

“If you are angry at the Supreme Court, you are right to be angry. Many of this Court’s decisions are completely lawless — such as the Court’s recent decision in Biden v. Nebraska (2023), which ignored a federal law that unambiguously authorized Biden’s student loan forgiveness program. They demand anger. And that anger isn’t just righteous, it is useful.
But I also want to counsel against despair — that is, I want to counsel against the absence of hope.

The Court’s GOP-appointed majority is starting to draw some fences around the conservative legal project. The Court appears unwilling to attack entrenched parts of the American welfare state. It smacked down a Trump judge who attempted to ban the abortion drug mifepristone. It has rejected legal arguments that would devastate the US economy or threaten its national security.

And, most importantly, the Court is now signaling that it may preserve America’s ability to hold free and fair elections (or, at least, to hold elections that are as free and fair as possible in a nation with an Electoral College and a malapportioned Senate).”

https://www.vox.com/scotus/2023/8/20/23835730/supreme-court-optimism-democracy-moore-milligan-talevski

The Supreme Court Had A Few Surprises This Year. That Doesn’t Make It Moderate.

“the fact that they’re unwilling to give conservatives a win in every case may say as much about what advocates are asking for as it does about the court’s ideological bent. The two big surprises this term — the ruling involving the Constitution’s elections clause and the decision involving the Voting Rights Act — were both cases that previous courts probably wouldn’t have agreed to hear at all. The aggressive arguments in both cases are just two examples of the way the court’s docket is changing, with right-wing legal groups and politicians asking for much further-reaching outcomes than they would have even five or six years ago.”

How Republicans turned a must-pass defense bill into an “extremist manifesto”

“House Republicans narrowly passed their version of an annual defense bill 219–210, after stacking it with controversial amendments on social issues that are dead on arrival in the Senate.
The debate on the National Defense Authorization Act, or the NDAA for short, now heads to the Democrat-controlled upper chamber, which is set to consider its own take on the bill later this month. Eventually, the two chambers will work to reconcile their differences between the two in the hope of finding a compromise.

The NDAA, one of Congress’s must-pass bills, effectively lays out what the military’s budget could look like for the next year and which programs will be funded. This year’s House bill authorizes $886 billion in funding, including a 5.2 percent pay raise for service members and the appointment of an inspector general to oversee Ukraine funding.

Much like the debt ceiling legislation and annual spending bills, the NDAA is a prime opportunity for lawmakers to add unrelated amendments making policy changes to pet issues, since it has to pass every year. This week, Republicans capitalized on this opportunity to put forth controversial amendments favored by their right flank, including restrictions on abortion and LGBTQ rights. It’s a move that’s meant to send a message about their position on social issues, and it’s also one that makes what was a bipartisan bill much more contentious.”

Pay Attention to Policy, not ‘Narratives’

“opinion leaders create narratives about how the world works—and then voters essentially buy into one that suits their biases. They pick a team. Social media reinforces each side’s thinking habits. As the election arrives, most voters aren’t doing a cost-benefit analysis—but embracing the candidate who touts the story their team tells (whether it’s true or not).

“Narratives … provide a rich source of information about how people make sense of their lives, about how they construct disparate facts and weave them together cognitively to make sense of reality,” explains a 1998 UC Irvine study. They can be helpful for understanding the world, but they can also send people down a rabbit hole.”

“fewer people can be persuaded by evidence. If you subscribe to the narrative that your opponents want to destroy everything that you find holy and dear, then you’ll put up with anything from a candidate from your tribe. During the 2016 election, Republicans embraced the “Flight 93″ theory—it’s time to rush the cockpit because a Hillary Clinton presidency would crash democracy.

Democrats believe something similar about a Donald Trump re-election, although they’re on more solid ground given that he did indeed try to steal an election and his election-denying acolytes filled the GOP ticket this year. Polls show most GOP voters have bought into that denialism narrative—and no evidence likely will sway them from their vote-stealing fantasies.”

“Jumping on the narrative bandwagon can take you to some morally dubious places. I don’t expect voters to adopt my balls-and-strikes voting strategy. But unless there’s a movement back in that direction, the story of our democracy might not have a happy ending.”

With Lula’s Win in Brazil, the Left Dominates Latin America

“With Luiz Inacio “Lula” da Silva’s narrow victory over president Jair Bolsonaro in Brazil—the two-time former president defeated the incumbent by a 1.8 percent margin (50.9 to 49.1)—the Latin American left has completed its strategic dominance over the region’s seven largest countries.
In the 2000s, much was made of Latin America’s so-called “Pink Tide,” which began with Hugo Chávez’s first electoral victory in Venezuela (1998) and da Silva’s first term in Brazil (2002–2006). There followed an unprecedented rise of left-wing governments across the region. However, there were still important holdouts at the time; Mexico and Colombia didn’t veer left at all; Chile maintained its post-Pinochet social democracy; Peru’s original “Pink Tider,” Ollanta Humala, initially scared the markets in 2011 but proved to be mostly moderate in power.

By late 2022, however, hard leftists—often in cahoots with local communist parties—had handily won the last elections in each of these countries and in Argentina, which returned to Peronist Kirchnerism in 2019. Bolsonaro was the last right-winger standing”

Markets Aren’t Perfect, but Government Is Worse

“The free market’s price system, along with competition by sellers for customers and by consumers for good deals, play an essential role in gathering and processing the information about our economy that is dispersed among millions of buyers and sellers. The resulting prices are a measurement of how much people value goods and services.

In a well-functioning competitive market, this argument continues, these critical price “reports” tell us the most advantageous ways to use finished goods and services, intermediate goods, raw materials, and—importantly—human time and talent, and lead entrepreneurs to produce what we want most intensely as efficiently as possible. In economics terms, prices convey information about scarcities and about wealth-creating incremental substitutions.

It’s a mind-blowing system where, as French political scientist Frederic Bastiat reminded us decades ago, although no one plans it, “Paris gets fed daily.”

Enter Samuel Gregg and his wonderful new book, The Next American Economy. Gregg’s case for the free market goes beyond the classic economic argument.

He writes that “the case for free markets involves rooting such an economy in what some of its most influential Founders thought should be America’s political destiny; that is, a modern commercial republic.” He adds that “politically, this ideal embodies the idea of a self-governing state in which the governed are regularly consulted; in which the use of the state power is limited by strong commitments to constitutionalism, the rule of law, and private property rights; and those citizens consciously embrace the specific habits and disciplines needed to sustain such a republic.”

Yes! I like to believe I’m a great advocate for markets, but whenever I omit these last points, I sabotage my own case. For one thing, terms like “competitive markets” give the impression of a heartless process. But the most important aspect of this competitive process is cooperation.”

“No serious free marketer believes that markets are perfect. We aren’t utopians. Unfortunately, perfect markets and perfect competition are often the starting point of economic textbooks. This rosy starting point leads many to conclude that when conditions are less than perfect, the best course of action for a correction is government intervention. It’s wrong.

Not only is government itself imperfect, as anyone can plainly see, but the market is a process to find and fix errors. A market imperfection is an opportunity for entrepreneurs to profit. As Arnold Kling recently wrote, “Markets fail. Use markets.” That’s because, Kling adds, “entrepreneurial innovation and creative destruction tends to solve economic problems, including market failures.”

This isn’t to say that the government plays no role aside from protecting property rights. But it means that faith in government intervention should be tempered with an acknowledgment of government’s own flaws, including a tendency to favor one group of people over another and an inability to adapt when policies fail or circumstances change.

The bottom line is that when we talk about the “free market,” it is a shorthand for a combination of institutions that allow people to cooperate, tolerate one another, live in peace, and flourish. As Gregg reminds us, all these elements are a quintessential part of what President George Washington envisioned for the new nation he led and described as “a great, a respectable & a commercial nation.””

Samuel Alito: One Angry Man

“Alito is not just a conservative. He’s not a consistent “originalist” in the vein of Scalia or Justice Clarence Thomas, only a “practical” one. The key to understanding Alito is not judicial philosophy or ardent conservatism: it’s his anger — an anger that resonates with the sentiments of many voters, especially white and male ones, who feel displaced by recent social and cultural changes. If you want to understand what to expect from the post-Roberts Court, paying attention to that anger pays dividends.”

“Alito’s anger consistently sounds in a register of cultural decline, bemoaning the growing prominence of women and minorities in American life. Writing the majority opinion in Hobby Lobby, which endorsed a company’s right to deny employees contraception coverage, Alito waxed lyrically about the “men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.” The women denied medical care that facilitates participation in the labor market, in contrast, weren’t a concern. Examining a Washington state regulation of pharmacists, Alito was quick to detect “hostility” to conservative religious beliefs. And in an opinion repudiating New Haven’s effort to promote more Black firefighters, Alito alone trawled the history of the case to complain about the role played by a Black pastor who was an ally of the city’s mayor and had “threatened a race riot.” Black involvement in municipal politics, for Alito, appears as a sinister threat to public order.

In stark contrast, when the charge of discrimination is made on behalf of racial or religious minorities, Alito expresses no such solicitude. He does not search for evidence of bias. Instead, he takes an impossibly narrow view of job-related discrimination that demands women somehow instinctively know they are being paid less than male counterparts. Despite his claim to a “just the facts ma’am” approach, Alito has a distinctively constricted take on what the “facts” are. To read his opinions is to inhabit a world in which it is white Christian men who are the principal targets of invidious discrimination, and where a traditional way of life marked by firm and clear gender rules is under attack.

When it comes to the criminal justice system, Alito is a reliable vote for the most punitive version of the state. In 2016, when the Supreme Court invalidated Florida’s death-penalty scheme on Sixth Amendment grounds, only Alito dissented. When the court, a year earlier, found a federal sentencing rule for armed offenders unconstitutionally vague, only Alito voted for the prosecution. It’s difficult to think of cases where Alito has voted for a criminal defendant, or any other litigant that elicits liberal sympathies.”

“In November 2020, Alito gave a keynote speech to the conservative legal organization the Federalist Society. Much criticized at the time for its partisan tone “befitting a Trump rally,” in the words of one critic, those remarks are useful because they prefigure where a court on which Alito is a dominant voice might go.
In that speech, Alito criticized pandemic restrictions by bemoaning the rise of “scientific” policymaking. He complained about the “protracted campaign” and “economic boycotts” of Catholic groups and others with “unpopular religious beliefs” (self-identified Christians make up some 63 percent of the American populace). And he (falsely) warned of “morning after pills that destroy an embryo after fertilization.” If that speech is any guide — and there is no reason to think it won’t be — the future of the Supreme Court will be increasingly one of religious censor: keeping women in their lane, standing up for Christian rights, and making sure that uppity “scientists” in the federal government don’t get their wicked way.”

We Are In a New Civil War … About What Exactly?

“The country many times over has witnessed dissent and disruption far more violent than anything seen in recent years. But earlier episodes featured profound ideological and moral questions — easily visible to the naked eye, in the present and to historians afterward — that lay at the heart of the matter.
The real Civil War was about slavery — at the start, to restrict its territorial expansion, by war’s end to eliminate it entirely. Capitalists opposed to the New Deal knew why they loathed FDR — he was fundamentally shifting the balance of power between public and private sectors — and FDR knew, too: “They are unanimous in their hate for me, and I welcome their hatred.” The unrest of the 1960s was about ending segregation and stopping the Vietnam War.

Only in recent years have we seen foundation-shaking political conflict — both sides believing the other would turn the United States into something unrecognizable — with no obvious and easily summarized root cause. What is the fundamental question that hangs in the balance between the people who hate Trump and what he stands for and the people who love Trump and hate those who hate him? This is less an ideological conflict than a psychological one.”