Neutral principles, motivated cognition, and some problems for constitutional law

Harvard Law Review

Volumn 125, Issue 1, 2011, Pages 1-77

  Kahan, Dan M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 81355135218     PISSN: 0017811X     EISSN: None     Source Type: Journal    
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References (542)

1. 131 S. Ct. 1910, 1942 (2011).
2. Id. at 1954 (Scalia, J., dissenting).
3. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 33 (1959).
4. 347 U.S. 483 (1954).
5. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 806 n.68 (1983).
6. 545 U.S. 844, 876 (2005) (citations omitted).
7. Compare Wendy E. Long, Op-Ed., President's Choice, WASH. TIMES, Oct. 10, 2008, at A27 ("The Court continues to be largely a liberal activist bench Justice Kennedy is a liberal judicial activist - for example, deciding that homosexual sodomy is a 'right' protected by the Constitution and that the crime of raping children can never be punished by the death penalty, and relying frequently on international and foreign laws to trump American law."), with Nomination of Elena Kagan to Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. (2d Sess. June 28, 2010) (statement of Sen. Al Franken), available at http://web.lexis-nexis.com/congcomp/document?_m= 9a75ddc62821a81c1232d5cabed14281 ("[T]here is such a thing as judicial activism. There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts court, and it has cut in only one direction, in favor of powerful corporate interests and against the rights of individual Americans.").
8. Lee Epstein & Jeffrey A. Segal, ADVICE AND CONSENT 128-129 (2005)
9. Jeffrey A. Segal & Harold J. Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 110-114 (2002).
10. Richard Kluger, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 683-696 (rev. & expanded ed. 2004) (describing how the Brown opinion was crafted to achieve the unanimity thought necessary to conserve the authority of the Court in ordering desegregation).
11. Philip Allen Lacovara, Un-Courtly Manners: Quarrelsome Justices Are No Longer a Model of Civility for Lawyers, A.B.A. J., Dec. 1994, at 50, 50 ("Recent opinions by the justices often are peppered with accusations that statements by colleagues are 'simplistic,' 'facile,' 'not rational,' 'misleading' or 'just not true.'"). 11 347 U.S. 483 (1954).
12. 410 U.S. 113 (1973).
13. Alexander M. Bickel, The Supreme Court, 1960 Term - Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 77 (1961).
14. John Hart Ely, DEMOCRACY AND DISTRUST 73-103 (1980).
15. Ronald Dworkin, FREEDOM'S LAW (1996).
16. Robert H. Bork, THE TEMPTING OF AMERICA 143-86 (1990)
17. Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 1-4+17 (1971)
18. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989).
19. Wechsler, supra note 3.
20. Carl Hulse, G.O.P. Blocks Judicial Nominee in a Sign of Battles to Come, N.Y. TIMES, May 20, 2011, at A16 (discussing successful Republican filibuster of an Obama nominee to the Court of Appeals for the Ninth Circuit).
21. Louis Michael Seidman, Comment to The Sotomayor Nomination, Part II, FEDERALIST SOC'Y, http://www.fed-soc.org/debates/dbtid.30/default.asp (last visited Oct. 2, 2011):
22. I was completely disgusted by Judge Sotomayor's testimony today. If she was not perjuring herself, she is intellectually unqualified to be on the Supreme Court. If she was perjuring herself, she is morally unqualified. How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First year law students understand within a month that many areas of the law are open textured and indeterminate - that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments What does it say about our legal system that in order to get confirmed Judge Sotomayor must tell the lies that she told today?.
23. Mark Tushnet, RED, WHITE, AND BLUE 1 (1988).
24. Tushnet is arguably the most creative and aggressive critic of the Wechslerian "neutral principles" project.
25. David Adamany & Joel B. Grossman, Support for the Supreme Court as a National Policymaker, 5 LAW & POL'Y Q. 405, 407 (1983) (citing finding that only half of respondents to national survey could identify a single Supreme Court decision)
26. Tanya Roth, FindLaw Survey: Can You Name the Supreme Court?, LAW AND DAILY LIFE (June 2, 2010, 9:42 AM), http://blogs.findlaw.com/law_and_life/2010/06/findlaw-survey-can-you-nam e-the-supreme-court.html (reporting that only 35% of respondents in national survey could name a Justice).
27. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)
28. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion).
29. John Rawls, POLITICAL LIBERALISM 134-135 (1993).
30. Ziva Kunda, The Case for Motivated Reasoning, 108 PSYCHOL. BULL. 480 (1990).
31. Dan Kahan, Fixing the Communications Failure, 463 NATURE 296 (2010).
32. Dan M. Kahan, The Cognitively Illiberal State, 60 STAN. L. REV. 115 (2007).
33. Morris P. Fiorina With Samuel J. Abrams & Jeremy C. Pope, CULTURE WAR? THE MYTH OF A POLARIZED AMERICA (2005) (examining data suggesting that the American public is generally supportive of liberal values and more interested in economic issues than in imposing cultural values by law)
34. James A. Davis, On the Seemingly Relentless Progress in Americans' Support for Free Expression, 1972-2006 (National Opinion Research Cen ter, GSS Social Change Report No. 52, 2008), available at http://publicdata.norc.org:41000/gss/DOCUMENTS/REPORTS/Social_Change_Rep orts/SC52.pdf (describing persistently high and persistently increasing levels of support across demographic groups for free speech and related principles of toleration).
35. Wechsler, supra note 3.
36. TUSHNET, supra note 20, at 1-3.
37. Wechsler, supra note 3, at 2-10.
38. Learned Hand, THE BILL OF RIGHTS (1st ed. 1958). This part of Wechsler's lecture, too, has been the focus of lively and ongoing scholarly debate.
39. Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 GEO. WASH. L. REV. 91, 93-96 (2003) (reviewing scholarly debate surrounding Wechsler's Supremacy Clause claim).
40. Wechsler, supra note 3, at 10.
41. Id. at 10-11.
42. Id. at 15.
43. Id. at 19.
44. Id. at 15.
45. Id.
46. Id. at 19.
47. 347 U.S. 483 (1954).
48. 163 U.S. 537 (1896).
49. Wechsler, supra note 3, at 32.
50. Id.
51. Id. at 33.
52. Id.
53. Id.
54. Louis H. Pollak, Racial Discrimination and Judicial Integrity: A Reply to Professor Wechsler, 108 U. PA. L. REV. 1 (1959)
55. Pamela S. Karlan, Lecture, What Can Brown® Do for You? Neutral Principles and the Struggle over the Equal Protection Clause, 58 DUKE L.J. 1049 (2009). For a further description of various retorts to Wechsler
56. Barry Friedman, Neutral Principles: A Retrospective, 50 VAND. L. REV. 503, 514-515 (1997).
57. Alexander M. Bickel, THE LEAST DANGEROUS BRANCH 57 (2d ed. 1986).
58. Wechsler, supra note 3, at 33 ("Rather, it seems to me, [Brown] must have rested on the view that racial segregation is, in principle, a denial of equality to the minority against whom it is directed; that is, the group that is not dominant politically and, therefore, does not make the choice involved.").
59. Id. at 33-34 (noting questions that the Court avoided having to answer or tip its hand on)
60. Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 COLUM. L. REV. 982, 986 (1978)
61. Wechsler's] main concern is with judicial craftsmanship and its relation to judicial decision. His primary argument is that the Court has not actually offered grounds for decision that pass the test of neutrality.").
62. Bickel, supra note 13, at 77 (identifying the Court's prudential avoidance of enforcing any general equality principle from Brown as explaining why "antimiscegenation statutes are yet allowed to exist").
63. Cass R. Sunstein, The Supreme Court, 1995 Term - Foreword: Leaving Things Undecided, 110 HARV. L. REV. 4, 52 n.239 (1996)
64. Identifying the Court's dismissal of miscegenation cases as an instance of prudential minimalism). In contrast, Wechsler in his Holmes Lecture rebuked the Court for having dodged the miscegenation issue by dismissing an appeal - exactly the sort of unprincipled strategic evasion that Bickel would later heartily endorse. See Wechsler, supra note 3, at 34 ("I take no pride in knowing that in 1956 the Supreme Court dismissed an appeal in a case in which Virginia nullified a marriage on this ground, a case in which the statute had been squarely challenged by the defendant, and the Court, after remanding once, dismissed per curiam on procedural grounds that I make bold to say are wholly without basis in the law."). Had the Court in Brown candidly endorsed a "freedom of association" rationale, it likely would not have been able to run away from the miscegenation fight, Wechsler suggested. See id.
65. Bickel, supra note 13, at 77.
66. Alexander M. Bickel, THE MORALITY OF CONSENT 133 (1975)
67. The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society. Now this is to be unlearned and we are told that this is not a matter of fundamental principle but only a matter of whose ox is being gored.
68. de Mark W. Howe, Book Review, 77 HARV. L. REV. 579, 580 (1964) (reviewing BICKEL, supra note 47)
69. The somewhat startling result of this effort in persuasion is that Professor Bickel, the ardent defender of the School Segregation Cases, at the conclusion of his expedition stands at a point not far distant from that occupied by Judge Hand.
70. 304 U.S. 144 (1938).
71. Ely, supra note 14, at 88 (discussing the "representation-reinforcing approach to judicial review")
72. id. at 73-104.
73. Carolene Prods., 304 U.S. at 152-53 n.4.
74. Ely, supra note 14, at 170-71
75. John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 727 (1974).
76. Junior Yale law professor Louis Pollak's now-classic response to Wechsler also drew on Carolene Products's footnote four. See Pollak, supra note 46, at 27.
77. See, e.g., ELY, supra note 14, at 97 (furnishing "representation reinforcement" conceptions of the Fourth Amendment's Search and Seizures Clause, the Fifth Amendment's Takings Clause, and the Eighth Amendment's Cruel and Unusual Punishment Clause).
78. 410 U.S. 113 (1973).
79. Archibald Cox, THE ROLE OF THE SUPREME COURT IN AMERICAN GOVERNMENT 113 (1976), quoted in ELY, supra note 14, at 212 n.57.
80. John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 935-936 (1973) (footnote omitted).
81. Ely, supra note 14, at 248 n.52 ("Attempts to defend [Roe] in what amount to process terms have foundered").
82. See id. at 164-170.
83. Ely, supra note 61, at 935.
84. Ely, supra note 14, at 2-3.
85. Johnathan O'Neill, ORIGINALISM IN AMERICAN LAW AND POLITICS 134-135 (2005).
86. Antonin Scalia, A MATTER OF INTERPRETATION 37-41 (1997)
87. Scalia, supra note 16.
88. Bork, supra note 16.
89. 381 U.S. 479 (1965).
90. Bork, supra note 16, at 7.
91. Id.
92. Id. at 10.
93. Id. at 7.
94. BORK, supra note 16, at 146. Ely made a similar criticism of Wechsler. See ELY, supra note 14, at 55 ("An insistence on 'neutral principles' does not by itself tell us anything useful about the appropriate content of those principles or how the Court should derive the values they mbody.").
95. DWORKIN, supra note 15, at 2.
96. Id. at 7. Dworkin presents this argument in other places as well.
97. Ronald Dworkin, TAKING RIGHTS SERIOUSLY 134-15 (1977)
98. Ronald Dworkin, Bork's Jurisprudence, 57 U. CHI. L. REV. 657, 662-663 (1990) (reviewing BORK, supra note 16).
99. DWORKIN, supra note 15, at 9-10.
100. Id. at 9, 11.
101. id. at 110-11.
102. Id. at 10.
103. Id. at 11.
104. Id. at 10.
105. id. at 10-12.
106. The propagation of "original intent" as a theory was linked to the concerted goal of the Reagan Administration to populate the federal bench with conservative jurists and to cultivate conservative influence in law through the Federalist Society.
107. Jamal Greene, Selling riginalism, GEO. L.J. 657, 680 (2009).
108. Steven M. Teles, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT 135-180 (2008) (describing the founding and growth of the Federalist Society and its roles in propagating conservative jurisprudential style and promoting appointment of federal judges who adhered to it).
109. David A. Strauss, Principle and Its Perils, 64 U. CHI. L. REV. 373, 379 (1997) (reviewing DWORKIN, supra note 15).
110. Wechsler, supra note 3, at 15.
111. Id. at 19 (emphasis added).
112. For important "neutrality skeptical" works, see TUSHNET, supra note 20
113. Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063 (1981) [hereinafter Brest, The Fundamental Rights Controversy]
114. Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204 (1980) [hereinafter Brest, Misconceived Quest]
115. Joseph William Singer, The Players and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1 (1984)
116. Cass R. Sunstein, Neutrality in Constitutional Law (with Special Reference to Pornography, Abortion, and Surrogacy), 92 COLUM. L. REV. 1 (1992)
117. Tushnet, supra note 5. It seems plausible to view the success of "neutrality skepticism" as in part responsible for the turn to historical theories - ones that try to identify political events or mass movements as "explaining" or even imparting "meaning" to the Constitution. See, e.g., 1 BRUCE.
118. ACKERMAN, WE THE PEOPLE (1991)
119. Larry Kramer, THE PEOPLE THEMSELVES (2004).
120. These approaches are external to the practices of legal advocacy and decisionmaking; perhaps they are identifying social or political influences that cause the Court to change its interpretation of the Constitution (it is unclear how to test such assertions), but they don't supply legal arguments that lawyers could convincingly make or the Court openly adopt for reading the Constitution in a particular way. The grand theorists' accounts, in contrast, are all internal: they take the form of reasons lawyers and judges could offer, if they were so inclined, for outcomes they favor. External theories aren't designed to help Wechsler; they are designed to let us step over him and move on.
121. Keith E. Whittington, Herbert Wechsler's Complaint and the Revival of Grand Constitutional Theory, 34 U. RICH. L. REV. 509, 513-520 (2000)
122. Noting a turn away from theorizing aimed at guiding judicial interpretation and the revival of theories that focus on extrajudicial dynamics of one sort or another.
123. Brest, The Fundamental Rights Controversy, supra note 87, at 1091-1092 Tushnet, supra note 5, at 825 ("The theory of neutral principles requires that judges be able to rely on a shared conception of the proper role of judicial reasoning. The critiques have established that there are no determinate continuities derivable from history or legal principle. Rather, judges must choose which conceptions to rely on.").
124. Brest, The Fundamental Rights Controversy, supra note 87, at 1090-1092 (quoting Bork, supra note 16, at 14-15)
125. Tushnet, supra note 5, at 793-804.
126. Brest, The Fundamental Rights Controversy, supra note 87, at 1093-1094.
127. Tushnet, supra note 5, at 790-791.
128. Id. at 806 n.68.
129. Stanley Fish, Dennis Martinez and the Uses of Theory, in DOING WHAT COMES NATURALLY 372 (1989).
130. Tushnet, supra note 5, at 824 (arguing that the "theory [of neutral principles] shows us an institution at the heart of liberalism that contains the potential for destroying liberalism by revealing the institution's inconsistencies and its dialectical instability").
131. Brest, The Fundamental Rights Controversy, supra note 87, at 1105 (attributing the breakdown of the theory to an irresolvable "dilemma not susceptible to resolution" that "springs into existence" when the "liberal state" is "created to mediate among individuals pursuing their self-interest"); Tushnet, supra note 5, at 805 (arguing that the "atomistic premises of liberalism" are hostile to the shared meaning required for neutral interpretation).
132. Brest, The Fundamental Rights Controversy, supra note 87, at 1108 (linking conflict among constitutional theories to "the essential and irreconcilable tension between self and other, between self and self").
133. Kunda, supra note 24.
134. Albert H. Hastorf & Hadley Cantril, They Saw a Game: A Case Study, 49 J. ABNORMAL & SOC. PSYCHOL. 129 (1954).
135. Id. at 129-130.
136. Id. at 130-132.
137. Id. at 132-134.
138. Kunda, supra note 24, at 482-490.
139. Christopher K. Hsee, Elastic Justification: How Unjustifiable Factors Influence Judgments, 66 ORGANIZATIONAL BEHAV. & HUM. DECISION PROCESSES 122 (1996)
140. Maurice E. Schweitzer & Christopher K. Hsee, Stretching the Truth: Elastic Justification and Motivated Communication of Uncertain Information, 25 J. RISK & UNCERTAINTY 185 (2002).
141. Serena Chen, Kimberly Duckworth & Shelly Chaiken, Motivated Heuristic and Systematic Processing, 10 PSYCHOL. INQUIRY 44 (1999)
142. Roger Giner-Sorolla & Shelly Chaiken, Selective Use of Heuristic and Systematic Processing Under Defense Motivation, 23 PERSONALITY & SOC. PSYCHOL. BULL. 84 (1997).
143. David K. Sherman & Geoffrey L. Cohen, Accepting Threatening Information: Self- Affirmation and the Reduction of Defensive Biases, 11 CURRENT DIRECTIONS PSYCHOL. SCI. 119, 119-20 (2002)
144. David K. Sherman & Geoffrey L. Cohen, The Psychology of Self-Defense: Self-Affirmation Theory, 38 ADVANCES EXPERIMENTAL SOC. PSYCHOL. 183, 187-188+205-206 (2006) [hereinafter Sherman & Cohen, Psychology of Self-Defense]
145. Dan M. Kahan, Donald Braman, John Gastil, Paul Slovic & C.K. Mertz, Culture and Identity-Protective Cognition: Explaining the White-Male Effect in Risk Perception, 4 J. EMPIRICAL LEGAL STUD. 465, 469-470 (2007).
146. Kunda, supra note 24, at 482-495
147. Sherman & Cohen, Psychology of Self-Defense, supra note 105, at 190-213.
148. Stefan Schulz-Hardt, Dieter Frey, Carsten Lüthgens & Serge Moscovici, BiasedInformation Search in Group Decision Making, 78 J. PERSONALITY & SOC. PSYCHOL. 655 (2000).
149. Charles G. Lord, Lee Ross & Mark R. Lepper, Biased Assimilation and Attitude Polarization: The Effects of Prior Theories on Subsequently Considered Evidence, 37 J. PERSONALITY & SOC. PSYCHOL. 2098 (1979).
150. Geoffrey L. Cohen, Party over Policy: The Dominating Impact of Group Influence on Political Beliefs, 85 J. PERSONALITY & SOC. PSYCHOL. 808 (2003)
151. Diane M. Mackie & Sarah Queller, The Impact of Group Membership on Persuasion: Revisiting "Who Says What to Whom with What Effect?," in ATTITUDES, BEHAVIOR, AND SOCIAL CONTEXT 135, 152-155 (Deborah J. Terry & Michael A. Hogg eds., 2000).
152. Chen, Duckworth & Chaiken, supra note 104.
153. Dan M. Kahan, Maggie Wittlin, Ellen Peters, Paul Slovic, Lisa Larrimore Ouellette, Donald Braman & Gregory Mandel, The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change (Cultural Cognition Project, Working Paper No. 89, 2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1871503.
154. Cohen, supra note 109.
155. Robert J. Robinson, Dacher Keltner, Andrew Ward & Lee Ross, Actual Versus Assumed Differences in Construal: "Naive Realism" in Intergroup Perception and Conflict, 68 J. PERSONALITY & SOC. PSYCHOL. 404 (1995).
156. id. at 405.
157. id.
158. David K. Sherman, Leif D. Nelson & Lee D. Ross, Naïve Realism and Affirmative Action: Adversaries Are More Similar than They Think, 25 BASIC & APPLIED SOC. PSYCHOL. 275, 275-276 (2003).
159. Geoffrey L. Cohen, Anthony Bastardi, David K. Sherman, Lillian Hsu, Michelle McGoey & Lee Ross, Bridging the Partisan Divide: Self-Affirmation Reduces Ideological Closed-Mindedness and Inflexibility in Negotiation, 93 J. PERSONALITY & SOC. PSYCHOL. 415 (2007).
160. id. at 427.
161. id. at 428.
162. Dan M. Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk, in HANDBOOK OF RISK THEORY (S. Roeser ed., forthcoming 2011), available at http://ssrn.com/abstract=1123807.
163. id.
164. Dan M. Kahan, Paul Slovic, Donald Braman & John Gastil, Fear of Democracy: A Cultural Evaluation of Sunstein on Risk, 119 HARV. L. REV. 1071, 1083-1084 (2006) (reviewing CASS R. SUNSTEIN, LAWS OF FEAR (2005)).
165. Dan M. Kahan, Donald Braman, Paul Slovic, John Gastil & Geoffrey Cohen, Cultural Cognition of the Risks and Benefits of Nanotechnology, 4 NATURE NANOTECHNOLOGY 87, 88 (2009)
166. James N. Druckman & Toby Bolsen, Framing, Motivated Reasoning, and Opinions About Emergent Technologies, 61 J. COMM. 659 (2011) (showing that culturally motivated cognition is sensitive to framing effects that moderate or accentuate biased assimilation).
167. Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. RISK RES. 147, 149-150 (2011)
168. Dan M. Kahan, Donald Braman, Geoffrey Cohen, John Gastil & Paul Slovic, Who Fears the HPV Vaccine, Who Doesn't, and Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 LAW & HUM. BEHAV. 501, 509-511 (2010).
169. Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 903 (2009).
170. id. at 864-870.
171. Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. PA. L. REV. 729 (2010) (examining the contribution cultural cognition makes to the "no means yes" norm).
172. Dan M. Kahan & Donald Braman, The Self-Defensive Cognition of Self-Defense, 45 AM. CRIM. L. REV. 1 (2008).
173. Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski, "They Saw a Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 STAN. L. REV. (forthcoming 2012), available at http://ssrn.com/abstract=1755706.
174. Kahan, supra note 26, at 126-30.
175. Albert O. Hirschman, THE PASSIONS AND THE INTERESTS (20th anniversary ed. 1997)
176. Stephen Holmes, The Secret History of Self-Interest, in PASSIONS AND CONSTRAINT 42 (1995).
177. Kahan, Hoffman, Braman, supra note 123, at 166-170.
178. Kahan, Braman, Cohen, Gastil & Slovic, supra note 123.
179. Kahan, supra note 25.
180. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 YALE L. & POL'Y REV. 149 (2006).
181. Id.
182. Stephen Holmes, Democratic Gag Rules or the Politics of Omission, in PASSIONS AND CONSTRAINT, supra note 130, at 202
183. RAWLS, supra note 23
184. Cass R. Sunstein, LEGAL REASONING AND POLITICAL CONFLICT (1996).
185. Kahan, supra note 26, at 143-44.
186. Id. at 144.
187. id. at 130-31.
188. Joseph R. Gusfield, SYMBOLIC CRUSADE 11-12 (2d ed. 1986) (explaining the cultural meanings of the debate over temperance).
189. Kahan, supra note 26, at 150.
190. David A. Strauss, What Is Constitutional Theory?, 87 CALIF. L. REV. 581, 583 (1999).
191. Eileen Braman, LAW, POLITICS, AND PERCEPTION (2009)
192. Dan M. Kahan, "Ideology in" or "Cultural Cognition of" Judging: What Difference Does It Make?, 92 MARQ. L. REV. 413 (2009)
193. Kahan, Hoffman, Braman, supra note 124, at 896-897.
194. Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 28 (2007) (showing power of judges to resist various biases at least in some circumstances)
195. Jeffrey J. Rachlinski, Sheri Lynn Johnson, Andrew J. Wistrich & Chris Guthrie, Does Unconscious Racial Bias Affect Trial Judges?, 84 NOTRE DAME L. REV. 1195, 1223-1225 (2009) (finding that judges are better able to resist implicit bias than lay people in some circumstances)
196. Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. PA. L. REV. 1251, 1259 (2005) (finding that "judges were able to resist the influence of [inadmissible] information in at least some cases").
197. The findings by Rachlinski and his collaborators underscore why it is unpersuasive simply to assume that judges will display the same susceptibility to motivated reasoning that laypersons do, and hence why it is essential to use judicial subjects for empirical testing.
198. Kahan, Hoffman, Braman, supra note 124, at 841.
199. Kahan, Hoffman, Braman, Evans & Rachlinski, supra note 128 (manuscript at 24).
200. Anke Grosskopf & Jeffery J. Mondak, Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court, 51 POL. RES. Q. 633 (1998) (measuring strength and duration of negative views toward the Court in wake of controversial decisions)
201. Janice Nadler, Shari Seidman Diamond & Matthew M. Patton, Government Takings of Private Property, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 286 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008) (describing intense public controversy following decision upholding broad power of eminent domain).
202. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J. POL. SCI. 635, 660 (1992)
203. Charles H. Franklin & Liane C. Kosaki, Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion, 83 AM. POL. SCI. REV. 751, 763 (1989)
204. Nathaniel Persily, Introduction to PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 147, at 9.
205. John Gastil, Don Braman, Dan Kahan & Paul Slovic, The Cultural Orientation of Mass Political Opinion, PS: POL. SCI. & POL. (forthcoming 2012).
206. Aaron Wildavsky, Choosing Preferences by Constructing Institutions: A Cultural Theory of Preference Formation, 81 AM. POL. SCI. REV. 3 (1987).
207. John R. Zaller, THE NATURE AND ORIGINS OF MASS OPINION 7-9+40-52 (1992).
208. Caldeira & Gibson, supra note 148, at 659-60 (suggesting that "opinion leaders" are more likely than the public to evaluate the Court's performance based on the consistency of case outcomes with policy preferences but that how the Court justifies decisions shapes public perceptions of the relevance of Court decisions to public policy issues).
209. Franklin & Kosaki, supra note 148, at 767-768.
210. Debra Cassens Weiss, Supreme Court Word of the Day: Orthogonal, A.B.A. J. (Jan. 12, 2010, 9:28 AM), http://www.abajournal.com/news/article/supreme_court_word_of_the_day_ort hogonal
211. University of Michigan law professor Richard Friedman was trying to define the scope of the confrontation clause in oral arguments yesterday when he was called on to define another term: orthogonal. Friedman used the word when he indicated that a justice's question was not pertinent to the present case "I think that issue is entirely orthogonal to the issue here," he said That got the attention of Chief Justice John G. Roberts Jr. "I'm sorry. Entirely what?" he said. "Orthogonal," Friedman replied. "Right angle. Unrelated. Irrelevant." Friedman tried to continue, but Justice Antonin Scalia jumped in. "What was that adjective? I liked that," he said. "I think we should use that in the opinion," Scalia later added. "Or the dissent," said Roberts.151 See Caldeira & Gibson, supra note 148, at 659-60 (suggesting that "opinion leaders" are more likely than the public to evaluate the Court's performance based on the consistency of case outcomes with policy preferences but that how the Court justifies decisions shapes public perceptions of the relevance of Court decisions to public policy issues).
212. Franklin & Kosaki, supra note 148, at 767-768.
213. Debra Cassens Weiss, Supreme Court Word of the Day: Orthogonal, A.B.A. J. (Jan. 12, 2010, 9:28 AM), http://www.abajournal.com/news/article/supreme_court_word_of_the_day_ort hogonal
214. University of Michigan law professor Richard Friedman was trying to define the scope of the confrontation clause in oral arguments yesterday when he was called on to define another term: orthogonal. Friedman used the word when he indicated that a justice's question was not pertinent to the present case "I think that issue is entirely orthogonal to the issue here," he said That got the attention of Chief Justice John G. Roberts Jr. "I'm sorry. Entirely what?" he said. "Orthogonal," Friedman replied. "Right angle. Unrelated. Irrelevant." Friedman tried to continue, but Justice Antonin Scalia jumped in. "What was that adjective? I liked that," he said. "I think we should use that in the opinion," Scalia later added. "Or the dissent," said Roberts.
215. 131 S. Ct. 1910 (2011).
216. Id. at 1923.
217. Id.
218. Id. at 1924-1925; see also id. at 1949-1950 (photographs).
219. Id. at 1927 (alteration in original) (quoting 3 Joint Appendix at 917, Plata, 131 S. Ct. 1910 (No. 09-1233)) (internal quotation mark omitted).
220. Id. at 1922.
221. Id. at 1938.
222. Id. at 1922-1923.
223. 18 U.S.C. § 3626 (2006)
224. Plata, 131 S. Ct. at 1929 (quoting 18 U.S.C. § 3626(a)(1)(A)) (internal quotation mark omitted).
225. Plata, 131 S. Ct. at 1941 (quoting Appellants' Jurisdictional Statement at 247a-248a, Schwarzenegger v. Plata, 130 S. Ct. 1140 (2010) (No. 09-416)) (internal quotation marks omitted).
226. Id. at 1942.
227. Id.
228. Id.
229. Id. at 1945.
230. Id. at 1953 (Scalia, J., dissenting).
231. Id. at 1954.
232. Id.
233. Wechsler, supra note 3, at 32.
234. Id. at 33.
235. Plata, 131 S. Ct. at 1954 (Scalia, J., dissenting).
236. Id. (second and third emphases added).
237. Id.
238. 410 U.S. 113 (1973).
239. Id. at 149.
240. Id. at 163.
241. Ely, supra note 61, at 942 n.117.
242. Id. (quoting Eisenstadt v. Baird, 405 U.S. 438, 470 (1972) (Burger, C.J., dissenting)).
243. 505 U.S. 833, 860 (1992).
244. Id. (citation omitted).
245. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 165-66 (2007) (upholding a federal law banning a procedure often called "partial birth abortion," in part based on a congressional finding that "there existed a medical consensus that the prohibited procedure is never medically necessary"); Stenberg v. Carhart, 530 U.S. 914, 938 (2000) (striking down a similar state law after finding that "substantial medical authority supports the proposition that banning [the] procedure could endanger women's health").
246. Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 COLUM. L. REV. 1955, 1996 (2006) (critiquing courts' reliance on facts when analyzing social change)
247. Timothy Zick, Constitutional Empiricism: Quasi-Neutral Principles and Constitutional Truths, 82 N.C. L. REV. 115, 191 (2003) (arguing that empiricism does not produce neutrality).
248. At least one scholarly judge has concluded that judicial reasoning is subject to this form of distortion.
249. Richard A. Posner, HOW JUDGES THINK 116 (2008)
250. Observing that when "empirical claims [are] made in judicial proceedings - for example, claims concerning the deterrent effect of capital punishment or the risk to national security of allowing suspected terrorists to obtain habeas corpus" - judges, like everyone else, "fall back on their intuitions" and display "[t]he kind of telescoped reasoning called 'cultural cognition'").
251. Compare Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 771 (1994) ("We must judge this case on the assumption that the evidence and testimony presented to the state court supported its findings [of disorderly behavior by protestors]."), with Edwards v. South Carolina, 372 U.S. 229, 235 (1963) (noting that "it remains our duty to make an independent examination of the whole record" despite factual finding by lower court that protestors were engaging in disorderly behavior).
252. Cf. McCleskey v. Kemp, 481 U.S. 279, 291-92 (1987) (refusing to treat empirical evidence of systemic racial discrimination in capital sentencing as grounds for invalidating the death enalty).
253. Zick, supra note 184, at 120-121.
254. Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 432-435 (1999) (describing such a strategy on the part of Justice Holmes in Brown v. United States, 256 U.S. 335 (1921)).
255. Kahan, supra note 26, at 143-144
256. Kahan, supra note 189, at 480-481.
257. This pattern is engagingly documented by Suzanne Goldberg.
258. Goldberg, supra note 184, at 1974-1984.
259. 388 U.S. 1 (1967).
260. See id. at 11 ("The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.").
261. 539 U.S. 558 (2003).
262. 517 U.S. 620 (1996).
263. See Lawrence, 539 U.S. at 571 (forbidding "us[ing] the power of the State to enforce on the whole society" standards of private conduct that originate in "religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family").
264. Goldberg, supra note 184, at 1981-1983.
265. Stenberg v. Carhart, 530 U.S. 914, 937 (2000).
266. Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 972 (N.D. Cal. 2010).
267. Brown v. Plata, 131 S. Ct. 1910, 1954 (2011) (Scalia, J., dissenting) (emphasis added).
268. Id. at 1954-55.
269. Id. at 1954.
270. Id. (second and third emphases added).
271. Id.
272. Id. (emphasis added).
273. Id.
274. Id. at 1955.
275. Id. at 1954.
276. Id.
277. Id.
278. Id. at 1955.
279. 131 S. Ct. 2729 (2011).
280. See id. at 2739. In dissent, Justice Breyer reached the conclusion that video games can cause psychological harm to children, discussing several scientific studies and providing citations to dozens more in two appendices. See id. at 2767-70, 2771-79 (Breyer, J., dissenting).
281. 131 S. Ct. 1068 (2011).
282. 42 U.S.C. §§ 300aa-1 to 300aa-34 (2006).
283. Bruesewitz, 131 S. Ct. at 1082.
284. Id. at 1079-1080.
285. Id. at 1080.
286. 512 U.S. 622 (1994) (Turner I); 520 U.S. 180 (1997) (Turner II).
287. Pub. L. No. 102-385, 106 Stat. 1460 (codified as amended in scattered sections of 47 U.S.C.).
288. Turner I, 512 U.S. at 630 (summarizing Act's must-carry provisions); Turner II, 520 U.S. at224-25 (holding Act's provisions constitutionally permissible).
289. 512 U.S. at 647; id. at 666-68 (plurality opinion).
290. Id. at 666 (plurality opinion).
291. Id.; see also id. at 668 (remanding).
292. 520 U.S. at 196; see also id. at 187 (describing evidentiary record).
293. Id. at 229 (O'Connor, J., dissenting).
294. Brown v. Plata, 131 S. Ct. 1910, 1954-55 (2011) (Scalia, J., dissenting).
295. Id. at 1954.
296. Turner II, 520 U.S. at 246 (O'Connor, J., dissenting).
297. Id. at 248 (quoting id. at 209 (majority opinion)) (internal quotation marks omitted); see also id. at 236.
298. See, e.g., Perry v. Schwarzenegger, 704 F. Supp. 2d 921, 970 (N.D. Cal. 2010) ("Domestic partnerships lack the social meaning associated with marriage, and marriage is widely regarded as the definitive expression of love and commitment in the United States.").
299. Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413, 454 (1996) (arguing that judicial scrutiny and review can help reveal "impermissible" legislative purposes).
300. id. at 431 n.55 ("Note that it should make no difference [in determining what constitutes an improper motive] whether the impermissible motive has played a role on a conscious or unconscious level.").
301. supra p. 19.
302. 131 S. Ct. 1207 (2011).
303. Id. at 1214.
304. Mary Winter, Westboro Church Protestors - Ignore Them, POLITICS DAILY, http://www.politicsdaily.com/2011/01/14/westboro-church-protestors-ignor e-them (last visited Oct. 2, 2011)
305. "Westboro Baptist Church members haul out their 'Thank God for Dead Soldiers' signs for one reason - to get national exposure for their bizarre belief that God is punishing America for tolerating homosexuality.".
306. Snyder, 131 S. Ct. at 1214.
307. A.G. Sulzberger, Where Free Speech Is Less an Idea than an Experience, N.Y. TIMES, Oct. 10, 2010, at A14.
308. Dahlia Lithwick, Up in Their Grill: The Westboro Baptist Church Politely Shows the Court How to Be Obnoxious, SLATE (Oct. 6, 2010, 7:10 PM), http://www.slate.com/id/2270167
309. "Margie J. Phelps represents Westboro Baptist Church, and yes, before you ask, she hates you, she really hates you. She most likely hates the six Catholics and three Jews up there on the bench, too.".
310. Snyder, 131 S. Ct. at 1218-19.
311. Id. at 1219.
312. Id. The Court found the same considerations decisive in overturning judgments against the Church for "intrusion upon seclusion" and "civil conspiracy." Id. at 1219-20.
313. Id. at 1222 (Alito, J., dissenting).
314. Justice Alito's position was not anything close to frivolous. Indeed, over the course of this dissent and other recent opinions, see Brown v. Entm't Merchs. Ass'n, 131 S. Ct. 2729, 2746-51 (2011) (Alito, J., concurring); United States v. Stevens, 130 S. Ct. 1577, 1597-602 (2010) (Alito, J., dissenting), Justice Alito has staked out a considered commitment to a particular conception of the First Amendment that is as rich as it is venerable. This is a view that sees the First Amendment as focused primarily on political speech and thus denies protection to various "categories" of speech that are nonpolitical in nature - thereby leaving government free to regulate those forms of expression based on their communicative impact as well as their noncommunicative impact. Its aim is to promote enjoyment of collective self-government.
315. Robert Post, Participatory Democracy and Free Speech, 97 VA. L. REV. 477 (2011).
316. A case like Snyder is easy for the majority (for Justice Alito, too, but in the other direction) because the majority has so fully absorbed a broader conception of free speech that aims to secure from collective interference the self-governing experience of autonomous individuals.
317. Note, A Communitarian Defense of Group Libel Laws, 101 HARV. L. REV. 682, 687-689 (1988) (identifying connection between liberal political theory and treatment of First Amendment as prohibiting redress for offended moral sensibilities).
318. Kagan, supra note 232, at 487.
319. Id. at 428 (emphasis added).
320. Snyder, 131 S. Ct. at 1217, 1218.
321. Id. at 1219 (emphasis added).
322. Id.
323. Kagan, supra note 232, at 487.
324. DWORKIN, supra note 15, at 10.
325. LEONARD W. LEVY, EMERGENCE OF A FREE PRESS (rev. ed. 1985) (emphasizing narrowness of Framers' expectations).
326. John Hart Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV. L. REV. 1482, 1497 (1975).
327. Kagan, supra note 232.
328. Id. at 512-513 (emphases added).
329. Id. at 428 (emphasis added).
330. Ely, supra note 254, at 1497.
331. Kagan, supra note 232, at 487.
332. Ely, supra note 254, at 1497.
333. Kagan, supra note 232, at 485.
334. United States v. O'Brien, 391 U.S. 367, 382 (1968). In O'Brien, the Court refused to consider evidence that the asserted "noncommunicative harms" were pretextual. See id. at 383 (stating that the Court "will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive"). But the Court has not taken a consistent position on showings of pretextual motive under the First Amendment. See, e.g., City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (plurality opinion) (explaining that in the face of a reason to "doubt" that the government was truly motivated by asserted empirical evidence of harm, the government must furnish "evidence [to] support its rationale" and cannot "get away with shoddy data or reasoning"); Burson v. Freeman, 504 U.S. 191, 213 (1992) (Kennedy, J., concurring) ("In some cases, a censorial justification will not be apparent from the face of a regulation which draws distinctions based on content, and the government will tender a plausible justification unrelated to the suppression of speech or ideas. There the compelling-interest test may be one analytical device to detect, in an objective way, whether the asserted justification is in fact an accurate description of the purpose and effect of the law.").
335. Cf. Olivieri v. Ward, 637 F. Supp. 851 (S.D.N.Y.) (finding "logistical" concerns to be a pretext for denying gay rights group a permit to assemble in public forum along St. Patrick's Day parade route), aff'd as modified in part, rev'd in part, 801 F.2d 602 (2d Cir. 1986). But cf. Irish Lesbian and Gay Org. v. Giuliani, 918 F. Supp. 732, 743 (S.D.N.Y. 1996) (upholding the municipal government's reliance on content-neutral criteria involving traffic disruption and public safety to deny marching permit to gay and lesbian group).
336. Virginia v. Black, 538 U.S. 343, 363 (2003) (plurality opinion).
337. R.A.V. v. City of St. Paul, 505 U.S. 377, 396 (1992).
338. Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993).
339. Texas v. Johnson, 491 U.S. 397, 400 (1989).
340. See Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 362-63 (1997) (crediting findings that "groups of protesters consistently attempted to stop or disrupt clinic operations" by "getting very close to women entering the clinics and shouting in their faces; surrounding, crowding, and yelling at women entering the clinics; or jostling, grabbing, pushing, and shoving women as they attempted to enter the clinics"); Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 758 (1994) (crediting finding that "protesters continued to impede access to the clinic" after district court issued an initial
341. Madsen, 512 U.S. at 786 (Scalia, J., dissenting).
342. Id.
343. Id. at 790.
344. Id.
345. Cox v. Louisiana, 379 U.S. 559, 572-73 (1965); Edwards v. South Carolina, 372 U.S. 229, 235-38 (1963).
346. Edwards, 372 U.S. at 235; see also Cox v. Louisiana, 379 U.S. 536, 545 (emphasizing that "we are required to make" an "independent examination of the record").
347. 379 U.S. 536.
348. Id. at 547 (footnote omitted). In Cox, the Court issued separate opinions in convictions for breach of the peace, No. 24, 379 U.S. 536, and for picketing a courthouse, No. 49, 379 U.S. 559.
349. Cox, 379 U.S. at 547.
350. Cox, 379 U.S. at 585-86 (Clark, J., concurring in No. 24 and dissenting in No. 49).
351. Kahan, Hoffman & Braman, supra note 124; Kahan, Hoffman, Braman, Evans & Rachlinski, supra note 128.
352. J.M. Balkin, The Constitution of Status, 106 YALE L.J. 2313 (1997)
353. Identifying conflicts over the meaning of the Constitution and over Supreme Court interpretations of it as focuses of cultural status competition.
354. 530 U.S. 703 (2000).
355. Id. at 789 (Kennedy, J., dissenting).
356. 505 U.S. 833 (1992).
357. Hill, 530 U.S. at 791 (Kennedy, J., dissenting).
358. Id.
359. Kagan, supra note 232, at 512-13 (arguing that if "[t]he government cannot disadvantage a person because the way she lives is immoral or repellant or because others view it as immoral or repellant," then "it follows that the government cannot disadvantage a person because what she thinks or says is immoral or repellant or because others view it as such").
360. Hill, 530 U.S. at 787 (Kennedy, J., dissenting).
361. Id. at 787+791+792.
362. Id. at 792.
363. Kagan, supra note 232, at 511.
364. 539 U.S. 558 (2003).
365. Id. at 571.
366. Id. at 564.
367. Id. at 571.
368. 517 U.S. 620, 634-35 (1996).
369. Kahan, supra note 26.
370. Romer, 517 U.S. at 634-35 (emphasis added) (quoting Dep't of Agric. v. Moreno, 413 U.S. 528, 534 (1973)).
371. Kagan, supra note 232, at 431 n.55.
372. For an important experimental study of the impact of motivated reasoning on perceptions of "harm,".
373. Avani Mehta Sood & John M. Darley, The Motivated Plasticity of Harm in the Service of Punishment Goals: Legal Implications of Outcome-Driven Reasoning (unpublished manuscript) (on file with the Harvard Law School Library).
374. Jamal Greene, Nathaniel Persily & Stephen Ansolabehere, Profiling Originalism, 111 COLUM. L. REV. 356, 367 (2011).
375. Id. at 373+375.
376. Id. at 356+400-401.
377. 131 S. Ct. 2729 (2011).
378. Id. at 2741-2742.
379. Id. at 2751 (Thomas, J., dissenting).
380. Id. at 2752+2753+2755+2759.
381. Id. at 2736 (majority opinion).
382. Id. at 2736-2737.
383. Id. at 2733, 2734 (quoting United States v. Stevens, 130 S. Ct. 1577, 1584 (2010)) (internal quotation marks omitted).
384. Id. at 2735.
385. One of the more interesting exchanges on originalist methodology took place between Judge Bork and then-Judge Scalia when both served on the D.C. Circuit. In Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), the D.C. Circuit sitting en banc upheld the dismissal of a libel action brought by a university professor against conservative columnists Evans and Novak, who had described the professor as a "Marxist." Id. at 971. In his majority opinion, then-Judge Starr concluded that the defamatory statements were "opinion," id. at 990, and thus protected by the First Amendment, as opposed to "factual statements," id. at 984. Judge Bork wrote a concurring opinion to express his view that "fact" versus "opinion" was too "crude [a] dichotomy" to facilitate sensible analysis, id. at 994 (Bork, J., concurring); he proposed instead that courts simply engage in fact-intensive "scrutiny to ensure that cases about types of speech and writing essential to a vigorous political debate "do not reach the jury," id. at 997. Judge Bork conceded that this form of judicial screening of libel actions was not familiar at the time of the Framing. But "it is the task of the judge in this generation," he explained, "to discern how the framers' values, defined in the context of the world they knew, apply to the world we know." Id. at 995. The Framers, he observed, "gave into our keeping the value of preserving free expression and, in particular, the preservation of political expression," id. at 996, and "if, over time, the libel action becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines?" Id. Judge Scalia dissented. Judge Bork's view of the First Amendment as a mandate to fit the framers' values to "modern problems," Judge Scalia argued, made unrealistic assumptions about the knowledge of courts: "[I]t is frightening to think that the existence or nonexistence of a constitutional rule is to depend upon our ongoing personal assessments of sociological factors" essential to define liability rules that optimally balance vigor and accuracy in political expression. Id. at 1039 (Scalia, J., dissenting). Judges Bork and Scalia, then, advanced competing conceptions of originalism based on competing understandings of the capacity and role of courts in a constitutional democracy. What's more, "liberal" Carter appointees Judges Wald and Edwards joined Judge Scalia's dissent, while "strict constructionist" Nixon appointees Judges Wilkey and MacKinnon and "liberal" Carter appointee Judge Ruth Bader Ginsburg joined Bork's concurrence. Id. at 971. This was not an "ideological" split over "activism"; it was a craft-norm debate among lawyers all deeply enmeshed in a shared professional culture.
386. Herman Cain Backs Tenn. Move to Ban Mosque, CBS NEWS (July 18, 2011, 3:50 AM), http://www.cbsnews.com/stories/2011/07/18/politics/main20080237.shtml.
387. Andy Barr, Graham: 14th Amendment Outdated, POLITICO (Aug. 5, 2010, 5:34 AM), http://www.politico.com/news/stories/0810/40635.html.
388. Bork, supra note 16, at 14; see also supra note 311.
389. Jack M. Balkin, Abortion and Original Meaning, 24 CONST. COMMENT. 291, 292-294 (2007) (arguing that an originalist reading of the Fourteenth Amendment supports abortion rights).
390. Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1198-1199 (1987).
391. Jamal Greene, Selling Originalism, 97 GEO. L.J. 657, 658-661 (2009).
392. Robert Post & Reva Siegel, Originalism as a Political Practice: The Right's Living Constitution, 75 FORDHAM L. REV. 545, 548-549 (2006).
393. TELES, supra note 83, at 143-45 (describing the Federalist Society's role in coordinating and communicating conservative and originalist ideas); Greene, supra note 317, at 680-682. The binding force of the Framers' "original intention" supplied the animating theme of Raoul Berger's 1977 Government by Judiciary, which presented a systematic critique of the jurisprudence of the Warren and early Burger Courts. Teles describes how "original intent" or simply "originalism" - a term apparently first used by Paul Brest in critiquing Berger's position, see Brest, Misconceived Quest, supra note 87, at 204 n.1, 219 - was self-consciously adopted by conservatives associated with the Federalist Society movement to replace earlier terms such as "judicial restraint" and "strict constructionism" used to denigrate the Warren Court's jurisprudential style. See TELES, supra note 83, at 145. Those involved credit Reagan Attorney General Edwin Meese with that decision. See id. Whether this is an accurate claim or an attempt to generate historical lore, Meese did play a major role in popularizing the term "originalism" in public addresses and remarks. See Greene, supra note 317, at 680-81; Post & Siegel, supra note 317, at 554-561.
394. Dworkin, supra note 75, at 668 ("Sometimes Bork's question-begging is spectacular.").
395. supra pp. 16-18.
396. supra pp. 13-14. The "majority is hurting itself" defense of affirmative action, see ELY, supra note 14, at 170-71; Ely, supra note 57, at 727, is also fraught with unspecified moral evaluation. It is not literally the majority that is being disadvantaged by affirmative action; it is a subcommunity consisting of those individuals who would have received whatever opportunity or benefit is instead being awarded to affirmative action recipients. It is not unrealistic, either, to think that democratic political dynamics will tend to concentrate that cost in subcommunities less able to protect their interests politically than other more powerful ones.
397. Richard A. Posner, Democracy and Distrust Revisited, 77 VA. L. REV. 641, 647 (1991).
398. This point does not make Ely's representation-reinforcement defense of affirmative action wrong; it just means that one can't use the defense without also addressing a difficult moral issue about when the political process can be deemed sufficiently sensitive to the stake of a burdened party to make it legitimate to defer to democratically arrived-at tradeoffs between that party's interests and those of others.
399. Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153, 1176 (1998)
400. "A court can conclude that a law passes the [representationreinforcement] test only if the average citizen is affected by that law or policy in a way that entitles her judgment to moral respect.". Those who blithely invoke "representation reinforcement" in any setting while ignoring this point will come off to their opponents as either selfdeceived or bent on deception.
401. DWORKIN, supra note 15, at 238.
402. Ronald M. Dworkin, The Bork Nomination, 9 CARDOZO L. REV. 101, 112 (1987).
403. Fallon, supra note 316, at 1189.
404. Strauss, supra note 84, at 386.
405. Id.
406. Id.
407. This analysis complements those of others who have begun to look at how the potential distorting effect of cultural cognition on legal decision making might be mitigated. Paul M. Secunda discusses a variety of such techniques for mitigating potential bias in judges, particularly in the adjudication of employment and labor disputes, which are rife with potential for cultural conflict.
408. Paul M. Secunda, Cultural Cognition at Work, 38 FLA. ST. U. L. REV. 107 (2010).
409. Paul M. Secunda, Cognitive Illiberalism and Debiasing Strategies (Marquette Law Sch., Legal Studies Paper No. 11-03, 2011) [hereinafter Secunda, Debiasing], available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1777104.
410. In papers with collaborators, I have also addressed devices for offsetting the negative effect of cultural cognition on judges' consideration of dispositive motions, see generally Kahan, Hoffman & Braman, supra note 124, and on jury factfinding, see generally Kahan, Hoffman, Braman, Evans & Rachlinski, supra note 128.
411. United States v. Massachusetts, No. 09-11623-WGY, 2011 WL 1670723, at 7-8,7 n.20 (D. Mass. May 4, 2011) (invoking decisionmaking heuristic aimed at neutralizing distorting effect of cultural cognition on summary judgment ruling).
412. Jeffrey J. Rachlinski, Comment: Is Evolutionary Analysis of Law Science or Storytelling?, 41 JURIMETRICS J. 365 (2001)
413. Arguing against forms of analysis that treat inventive manipulation of indeterminate social science mechanisms as form of empirical proof.
414. Brown v. Plata, 131 S. Ct. 1910, 1954, 1955 (2011).
415. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REV. 1371, 1417 (1995)
416. "While judges still typically write as if they were absolutely certain about the rightness and soundness of their analysis and decisions, everyone (including the judges) knows that's not necessarily the case.".
417. Dan Simon, A Third View of the Black Box: Cognitive Coherence in Legal Decision Making, 71 U. CHI. L. REV. 511, 512-513 (2004).
418. David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 739-740 (1987)
419. Recognizing but treating as "overstated" the concern with projecting authority that leads judges to avoid "candid recognition of the difficulties of decision and the strength of competing arguments"; see also Greenawalt, supra note 49, at 1005 ("Since opinions are written partly to persuade, judges rarely indicate exactly how close they think a case is.").
420. Richard A. Posner, Judges' Writing Styles (And Do They Matter?), 62 U. CHI. L. REV. 1421, 1432+1436 (1995)
421. Suggesting that judges resort to formalist idioms to shield "pragmatic" judgments from questioning or criticism.
422. Robinson, Keltner, Ward & Ross, supra note 113, at 414.
423. Id.
424. Sherman, Nelson & Ross, supra note 115, at 286-287.
425. Id.
426. Id.
427. Timur Kuran, PRIVATE TRUTHS, PUBLIC LIES (1995).
428. KURAN, supra note 339, at 78-80.
429. Id. at 78-83.
430. Sherman, Nelson & Ross, supra note 115, at 275-276+286-287.
431. Id. at 287.
432. Id.
433. Persily, supra note 148, at 9.
434. Id.
435. Secunda advocates idioms of "humility,"
436. Secunda, Cultural Cognition at Work, supra note 328, at 140-144.
437. Secunda, Debiasing, supra note 328, as have I in writing with coauthors, see Kahan, Hoffman, Braman, Evans & Rachlinski, supra note 128 (manuscript at 41-43). The proposal here is not materially different from the ones there, although in my view aporia better captures the conspicuous acknowledgement of complexity. "Humility" connotes consciousness of one's own limits in solving a problem; aporia emphasizes the limited amenability of the problem to a satisfactory solution, along with apprehension of the same. Humility might, of course, conduce to seeing aporia more readily, but it doesn't seem necessary or sufficient for seeing it. It also might be the case that humility, understood as awareness of limits, might help judges avoid other decisionmaking hazards related to motivated cognition - including their own - but unrelated to aporia. See, e.g., Kahan, Hoffman & Braman, supra note 124, at 894-97 (recommending that judges use humility-based heuristic when deciding dispositive motions in order to avoid risk that cultural cognition will dull judges' awareness of the contribution cultural cognition makes to perceptions of fact).
438. Nicholas Rescher, Aporetic Method in Philosophy, 41 REV. METAPHYSICS 283 (1987).
439. Id. at 283.
440. Id. at 284-286.
441. Id. at 283, 293-97; see also, e.g., United States v. Massachusetts, No. 09-11623-WGY, 2011 WL 1670723, at&8 (D. Mass. May 4, 2011) ("Of course, I did have doubts The question is not whether I have doubts, but whether I am honestly certain enough to act to alter the legal relationship of the parties.").
442. Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 DUKE L.J. 703 (1994).
443. Id. at 770-772.
444. Id. at 774-777.
445. Tom R. Tyler, WHY PEOPLE COOPERATE (2011).
446. Tom R. Tyler, WHY PEOPLE OBEY THE LAW (2006).
447. Dan Simon & Nicholas Scurich, Lay Judgments of Judicial Decision-Making, J. EMPIRICAL LEGAL STUD. (forthcoming 2012), available at http://ssrn.com/abstract=1888630.
448. Id. (manuscript at 7).
449. Id. (manuscript at 8).
450. id. (manuscript at 18).
451. id. (manuscript at 10-11).
452. Strauss, supra note 84, at 386.
453. Id.
454. 128 S. Ct. 2641 (2008).
455. Id. at 2658.
456. Id.
457. Id. at 2646.
458. Id. at 2658.
459. 433 U.S. 584 (1977).
460. 128 S. Ct. at 2658 (citations omitted) (quoting Coker, 433 U.S. at 598 (plurality opinion)).
461. Id. at 2661.
462. Id. at 2659.
463. Id.
464. Id. at 2661.
465. Id.
466. Linda Greenhouse, In Court Ruling on Executions, a Factual Flaw, N.Y. TIMES, July 2, 2008, at A1.
467. Noting Court's omission of statutory authority for death penalty for rape of a child in Uniform Code of Military Justice; see also Kennedy v. Louisiana, 129 S. Ct. 1, 1 (2008) (statement of Kennedy, J., respecting the denial of rehearing) (amending opinion to correct for oversight).
468. Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. CHI. L. REV. 965, 965-966 (2009).
469. Richard M. Ré, Can Congress Overturn Kennedy v. Louisiana?, 33 HARV. J.L. & PUB. POL'Y 1031, 1034 (2010).
470. Kennedy, 128 S. Ct. at 2650.
471. Id. at 2658 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion)) (internal quotation marks omitted).
472. Brown v. Plata, 131 S. Ct. 1910, 1954 (2011) (Scalia, J., dissenting); see also supra pp. 37-38.
473. Plata, 131 S. Ct. at 1954.
474. Kahan, Braman, Gastil, Slovic & Mertz, supra note 105, at 469-70.
475. Sherman & Cohen, Psychology of Self-Defense, supra note 105, at 187-188+205.
476. Amy McQueen & William M.P. Klein, Experimental Manipulations of Self- Affirmation: A Systematic Review, 5 SELF & IDENTITY 289 (2006) (surveying different techniques for eliciting self-affirmation).
477. Sherman & Cohen, Psychology of Self-Defense, supra note 105, at 192-193.
478. Kevin R. Binning, David K. Sherman, Geoffrey L. Cohen & Kirsten Heitland, Seeing the Other Side: Reducing Political Partisanship via Self-Affirmation in the 2008 Presidential Election, 10 ANALYSES SOC. ISSUES & PUB. POL'Y 276, 285-286 (2010).
479. Geoffrey L. Cohen, Joshua Aronson & Claude M. Steele, When Beliefs Yield to Evidence: Reducing Biased Evaluation by Affirming the Self, 26 PERSONALITY & SOC. PSYCHOL. BULL. 1151, 1161-1162 (2000).
480. Kahan, supra note 26, 145-146.
481. Kahan, supra note 119 (manuscript at 29).
482. Dan M. Kahan, Paul Slovic, Donald Braman, John Gastil, Geoffrey Cohen, & Douglas Kysar, Cultural Cognition and Nanotechnology Risk Perceptions: An Experimental Investigation of Message Framing, in PROJECT ON EMERGING NANOTECHNOLOGIES RESEARCH BRIEF NO. 5, at 7+10-16 (2009), available at http://www.nanotechproject.org/process/assets/files/7091/nano_090225_res earch_brief_kahan_nl1.pdf.
483. Kahan, supra note 26, at 146-47; Kahan, Slovic, Braman & Gastil, supra note 121, at 1097-1098.
484. Secunda, Cultural Cognition at Work, supra note 328, at 144-148.
485. Cass R. Sunstein, Trimming, 122 HARV. L. REV. 1049, 1053 (2009).
486. Id. at 1070.
487. Secunda, Cultural Cognition at Work, supra note 328, at 139-140.
488. J. Harvie Wilkinson III, The Rehnquist Court at Twilight: The Lures and Perils of Split-the- Difference Jurisprudence, 58 STAN. L. REV. 1969, 1983 (2006).
489. Sunstein, supra note 390, at 1064+1067.
490. Wilkinson, supra note 393, at 1974-1975 (same).
491. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (internal quotation marks omitted) (citing Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (opinion of Powell, J.)).
492. Gratz v. Bollinger, 539 U.S. 244, 255, 271 (2003).
493. 545 U.S. 844 (2005).
494. Id. at 872.
495. 545 U.S. 677 (2005).
496. Id. at 691 (plurality opinion); see Sunstein, supra note 390, at 1061 (characterizing as "trimming" the Court's position that "the constitutionality of government displays of the Ten Commandments depends on the context"); Wilkinson, supra note 393, at 1973 (discussing McCreary County and Van Orden).
497. Sunstein, supra note 390, at 1061 & n.53.
498. 505 U.S. 833 (1992).
499. Id. at 876 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
500. See supra pp. 49-50.
501. 128 S. Ct. 2783 (2008).
502. Id. at 2822.
503. Id. at 2816.
504. Id.
505. Id. (emphasis added).
506. Id. at 2816-2817.
507. Id. at 2817 n.26 (emphasis added).
508. Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291 (2003)
509. Discussing the relationship between cultural worldviews and support for or opposition to gun control initiatives.
510. NAT'L RESEARCH COUNCIL OF THE NAT'L ACADS., FIREARMS AND VIOLENCE (Charles F. Wellford et al. eds., 2005) (finding evidence on impact of concealed carry laws to be inconclusive).
511. Kahan, supra note 189, at 452-459.
512. Mark V. Tushnet, OUT OF RANGE (2007) (noting the relationship between individuals' views on gun control and their approaches toward interpreting the Second Amendment).
513. Donald Braman & Dan M. Kahan, Overcoming the Fear of Guns, the Fear of Gun Control, and the Fear of Cultural Politics: Constructing a Better Gun Debate, 55 EMORY L.J. 569, 599-600 (2006).
514. Brown v. Plata, 131 S. Ct. 1910, 1954 (2011) (Scalia, J., dissenting) (emphasis added).
515. Id. (second and third emphases added).
516. Id.
517. Id. at 1954-1955.
518. Id. at 1954.
519. Id.
520. Id.
521. Id. at 1955.
522. Kahan, Wittlin, Peters, Slovic, Ouellette, Braman & Mandel, supra note 111 (maintaining that ordinary citizens face much bigger incentives to form risk perceptions that convey their allegiance to their cultural group than they do to form risk perceptions that are supported by scientific evidence).
523. Plata, 131 S. Ct. at 1954 (Scalia, J., dissenting).
524. Id. at 1954-1955.
525. Al Gore, Climate of Denial: Can Science and the Truth Withstand the Merchants of Poison?, ROLLING STONE, July 7, 2011, at 76.
526. Schenck v. Pro-Choice Network of W.N.Y., 519 U.S. 357, 363 (1997).
527. Madsen v. Women's Health Ctr., Inc., 512 U.S. 753, 790 (1994) (Scalia, J., dissenting).
528. Hill v. Colorado, 530 U.S. 703, 791 (2000) (Kennedy, J., dissenting) (arguing that the Court had "turn[ed] its back" on abortion protestors' expectation of state respect for their convictions).
529. Plata, 131 S. Ct. at 1954-1955.
530. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, SCIENTIFIC ACHIEVEMENTS LESS PROMINENT THAN A DECADE AGO 1 (2009), available at http://people-press.org/files/legacy-pdf/528.pdf.
531. Kahan, supra note 25, at 296-297.
532. Kahan, Hoffman & Braman, supra note 124.
533. Secunda, Cultural Cognition at Work, supra note 328.
534. Simon & Scurich, supra note 356.
535. Secunda, Debiasing, supra note 328.
536. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (defending conception of legal scholarship that features collaborative interchange with the bench and with private practitioners).
537. Linda Greenhouse, Justice Scalia Objects, N.Y. TIMES OPINIONATOR (Mar. 9, 2011, 8:40 PM), http://opinionator.blogs.nytimes.com/2011/03/09/justice-scalia-objects.
538. Stewart Macaulay, The New Versus the Old Legal Realism: "Things Ain't What They Used to Be," 2005 WIS. L. REV. 365.
539. Thomas J. Miles & Cass R. Sunstein, The New Legal Realism, 75 U. CHI. L. REV. 831 (2008).
540. Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory?, 95 CORNELL L. REV. 61 (2009).
541. Karl N. Llewellyn, THE COMMON LAW TRADITION 59-61+121-157+206-208 (1960).
542. Karl Llewellyn, THE CASE LAW SYSTEM IN AMERICA § 56, at 78-80 (Paul Gewirtz ed., Michael Ansaldi trans., 1989) (1933) (discussing judicial "intuition" and "fact-guided decision making").