Note: this is neither a political piece nor an opinion for or against any nominee to the Supreme Court. Rather this is a discussion about human bias and group-think, framed within the process of how Justices are selected and the need for diversity and dissent within the Court.
The recent nomination of a new Supreme Court Justice got me thinking about the process of such appointments. This relatively infrequent occurrence offers an opportunity to consider how claims about impartiality – including those made by various stakeholders during the nomination process, don’t square with what behavior research has established.
Bias is part our human nature, we have little awareness of our biases, and our Justices are not exempt from human bias, therefore Justices’ decisions are biased. Further, the current process of nominating and seating Justices clearly introduces biases of the Executive and Legislative branches of the government in the selection of Justices – but does it have to be this way?
Acknowledging Bias is the First Step
Daniel Kahneman, is a Nobel Prize-winning economist and author of Thinking Fast and Slow in which he explores automatic [Type One] thinking and rational [Type Two] thinking. Kahneman and other researchers have observed that non-rational thinking dominates in our decision-making without us realizing its influence.
“I would say that if one made a film on this [thinking types], type two would be a secondary character who thinks that he is the hero because that’s who we think we are, but in fact, it’s type one that does most of the work, and it’s most of the work that is completely hidden from us.” –Daniel Kahneman
The human bias in judges affects not only their decision-making on issues brought before the Court. Judges also have difficulty deciding when they ought to recuse themselves from a given case where their bias may be particularly troubling. A former Supreme Court Justice, the late Antonin Scalia, recognized and acknowledged the influence of bias on judgments and the need to establish a diverse view to avoid poor decisions due to group-think.
“I probably believe that the worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.” —Antonin Scalia
Democratic and Republican parties have each attempted to pack the Court with Justices who would rule in favor of particular political perspectives. Although this overt bias strategy does not always lead to outcomes sought by the political parties, attempts appear to have led to a significant increase of judgments along party lines.
Rather than trying to defend the indefensible claim that Justices are not subject to human bias, why not openly acknowledge that bias exists within both the seated Justices and nominees for new Justices and take steps to counterbalance bias and group-think in the Supreme Court? To achieve this end will require that the Executive and Legislative branches of government – both of which have incentive to pack the Court in an attempt to obtain politically-driven judgments, be removed from the process.
Following are some blue sky, broad stroke thoughts on ways to help ensure a more diverse Court that encourages useful dissent for the benefit of the entire Country rather than for special interests.
Abandon Candidate Selection via Lazy Labels
Labels like conservative, liberal, right and left are not useful because they do not sufficiently describe specific positions held by those who either self identify or are labeled by others. Such simple labels cloud the fact that actual human behavior is more complex than a label implies.
Some have observed, for example, that “ideological differences have little influence over opinion on immigration, affirmative action, capital punishment, gun control, Social Security, health insurance, the deficit, foreign aid, tax reform, and the war on terrorism.”
What ought to be more telling about a Justice candidate is their past stated positions on legal matters and their actual judgments. To assess a potential Justice candidate, some transparent and objective means is needed to collect, track and aggregate information on all potential Justice candidates.
Create Centralized Living Dossiers for Candidates
Senators who oppose a nominee for Justice often try to pry out the nominee’s position on past legal judgments and how the nominee may vote on similar cases in the future. Nominees are not required to answer such questions and generally defer by proposing that they cannot answer a hypothetical question if they are to maintain their commitment to impartiality.
It is certainly reasonable and commendable that a Justice candidate would not offer a decision on an actual case until they have the opportunity to review all relevant evidence and to weigh their decision within the guidelines of appropriate laws. At the same time, is it reasonable to believe that Justice candidates don’t know anything about popular “hot topic” legal questions, haven’t thought about these questions and haven’t arrived at personal opinions that may likely influence their judgements on these issues? If such a Justice candidate existed, then would anyone want this ill-informed and disinterested party to serve on any court, let alone the highest court of the land?
A review of a nominee’s public opinion on prior cases, including their own case decisions would provide historical indications of their likely bias. These past opinions and judgments could be maintained in a public database that is managed openly to help ensure transparency and to avoid presenting only information that puts a candidate in a light deemed favorable by any special interest.
Individuals would self-apply to the database, providing basic information, including verification of their identity, their credentials regarding education and knowledge of constitutional law, and their experience practicing the law. As an open database, anyone can seek to disqualify an applicant by providing hard evidence that an applicant’s submitted information has been falsified.
Note, if a person is not in the database, then that person would not be considered for future selection as a Justice to the Court. Yes, this may cause a rush of applications when a seat on the Court becomes open, but it may also incentivize those who wish to serve as a Justice to apply early and to update their application more regularly.
The database would form a living dossier that organizes applicants’ opinions and judgments by categories. If a nominee has opined/judged consistently over the years within categories, then is it likely that they would do so in the future? If an applicant’s opinions/judgments have shifted over the years, then is it likely that they would continue to move in the trending direction? If an applicant’s opinions/judgments have been generally diverse, then is it likely that they are less dogmatic (or might they be more easily swayed by emotion or popular opinion)?
If nothing else may be inferred by information in the living dossier, such categorization may more objectively reveal differences in potential biases among applicants.
De-bias the Selection of a New Justice
Currently, the President nominates a person for Justice and the Senate confirms nominees to the Court. On its face, this process seems prone to packing the Court because both the Executive and Legislative branches of government could see benefit to their causes by seating Justices with certain biases.
In situations where the President and Senate of one party are in power, there are scant means to seat a nominee who may offer important diversity and useful dissent. The Judicial branch is (presumably) independent from the Executive and Legislative branches and serves as a check and balance to actions of the other branches, but the current nomination and confirmation process works against these goals.
Justices are elected for life or until they retire over which time power shifts between political parties. If a political party is able to seat a majority of Justices on the Court today who hold a certain set of similar biases, then those biases could create group-think that would impact judicial decisions for a very long time (assuming the seated Justices live a long life and don’t fundamentally change their mental models during their time on the Court).
Using the public dossier database proposed above, the potential bias of the seated Court Justices could also be assessed at any time.
Note that the assessment of seated Justices raises the question of what to do if the seated Justices are demonstrably all like-minded – shouldn’t there be a way to unseat Justices and seek replacements in order to re-balance the Court in a more diverse way?
The bias make-up of the currently seated Court Justices could be used to randomly select from the dossier database a pool of nominees who exhibit bias that is different from the seated Judges. The random selection could consider the number of opinions and judgments of applicants to help select candidates with the highest activity and transparency.
Note that these randomly selected candidates are not unbiased – that is not possible, but rather their identified biases are intended to counterbalance the biases of the currently seated Justices.
The pool of candidate nominees would then be vetted (e.g. by the legal community to uncover evidence of credential falsification). From the remaining, vetted candidates the candidate whose dossier demonstrates bias that is furthest from the sitting Justices’ biases would be seated as the new Justice. If several Justice candidates are practically identical in their bias profile, then one candidate would be randomly selected.
A Workable Solution?
As I acknowledged at the top of this post, this isn’t a discussion about a particular political party or candidate for Justice. Rather this post considers the potential impact of bias and group-think on decisions by the Court under the current methods of selecting Justices.
I’m not trained in the law, I have no experience in politics, and make no claim of expertise in the design of databases running on a machine-learning platform that the living dossier may require. I defer to others on what it would take to implement some kind of a de-biased selection methodology (not necessarily the living dossier approach discussed above).
I also recognize that any change to the status quo will not be welcomed in power or easy to construct in a foolproof manner. At the same time, it seems to me that changes are clearly necessary to help attain and maintain useful diversity and thoughtful dissent in the Court.
A Very Brief Backgrounder on the US Supreme Court
The United States Supreme Court was established in 1789 and designed as a tribunal of six justices who served until death or retirement.
The reason why six justices were originally seated is because there were three circuit courts at the time (Eastern, Middle and Southern) and so two justices could preside over each region.
Apparently, no one saw the possibility of a split 3:3 decision as a problem “because all the judges were Federalists and they didn’t foresee great disagreement. Plus, you didn’t always have all six justices appearing at the Supreme Court for health and travel reasons.”
Per the Constitution, Congress determines the number of Justices – a number that has varied over time from five to ten Justices, until 1869 when the number was set to nine.