You Can’t Trust The Supreme Court, Science Proves It!


The job of a judge and, most importantly, a Supreme Court justice, requires them to set aside partisanship and their personal preferences in order to decide cases according to what the law does or does not allow. Yet, a series of studies examining a phenomenon known as “motivated reasoning” suggest that many judges cannot be trusted with this task. Their brains simply are not capable of such disinterested reasoning.

A recent study adds to the growing evidence that our brains reject information that rebuts our strongly held beliefs. Dartmouth political scientist Brendan Nyhan and three co-authors presented parents with various messages intended to encourage them to vaccinate their children. What they found, however, was that “[n]one of the interventions increased parental intent to vaccinate a future child,” and, among the parents who were most likely to be skeptical of vaccination, the messages actually backfired. Staunch deniers of the health benefits of vaccination actually said they were less likely to vaccinate their children after being presented with information supporting vaccination.


As science journalist Chris Mooney explains, this is not an isolated study. Similar effects have been demonstrated when conservatives are presented with information debunking a common conservative misconception regarding tax policy. Or when fans of former vice presidential candidate Sarah Palin are presented with information debunking her claim that the Affordable Care Act authorizes “death panels.” Or when staunch opponents of President Obama are presented with information debunking the claim that he is a Muslim.

Liberals should not look at these studies and become smug, however, as other research has shown that progressives are no less susceptible to motivated reasoning. A widely reported study co-authored by Yale Law Professor Dan Kahan and three of his colleagues, for example, found that mathematically skilled partisans are more likely to reach the wrong answer when asked to analyze data that leads to a conclusion which runs counter to their political views. Another study co-authored by psychologist-turned-political consultant Drew Westen found that the brains of strong partisans — whether Democratic or Republican — actively resist information that is unflattering to their party’s presidential candidate.

Westen’s research is particularly sobering. He and his co-authors took brain scans of committed Democrats or Republicans while they were processing information that painted their party’s candidate in a poor light. What he and his co-authors found is that the areas of the brain associated with calm, reasoned thinking showed little activity while a partisan’s brain is processing such information. Instead, the partisan’s brain actually uses a reward and punishment system to prevent them from changing their strongly held beliefs. Once a partisan is confronted with unwelcome facts about a favored candidate, the centers of their brain associated with emotional distress kick into gear, and those centers remain active until the brain finds away to rationalize away the unwanted information. When that happens, the distress centers of the brain turn off and the centers associated with positive feelings turn on. As Westen later explained, these positive emotional centers “overlap substantially with those activated when drug addicts get their ‘fix.’

Committed partisans are almost literally addicted to remaining committed partisans.

Which brings us back to the Supreme Court. As both parties have come to understand how the Supreme Court can advance or undermine their agenda decades after the president who appointed a particular justice leaves the White House, partisans have paid increased attention to making sure that their Supreme Court nominees are not ideological wild cards. Indeed, after President George H.W. Bush appointed the surprisingly moderate Justice David Souter to the Court in 1990, “No More Souters” became a rallying cry among highly partisan Republicans. A president who ignores the ideological preferences of their Supreme Court nominees risks having much of their presidency undone, while a president who chooses ideologically loyal nominees can watch them carry out that president’s agenda for a generation. Our system rewards presidents who appoint strong partisans to the Supreme Court with continued relevance long after that president leaves office, and it punishes presidents who nominate ideological ciphers by forcing them to watch their own nominee undermine the work they did while they were in the White House.


But if the studies regarding motivated reasoning teach anything, it is that strong partisans are the worst possible individuals who could be given a lifetime appointment to the Supreme Court of the United States. Once they are placed on the Supreme Court, justices answer to no one except their own consciences. Yet, according to the motivated reasoning studies, those consciences will quickly become convinced that whatever their partisan preferences call for is also the correct answer in politically charged cases. Indeed, as the “backfire effect” demonstrated by the vaccine study indicates, highly partisan justices may actually be even more likely to reach partisan results after they are presented with strong counterarguments supporting a result that conflicts with their political views.

It should be noted that these motivated research studies largely examine situations where the test subjects have a great deal of personal investment in a particular belief — if a test subject, or a judge, for that matter, does not feel strongly about a particular subject then they are much less likely to fall victim to motivated reasoning. For this reason, there are any number of routine cases where highly partisan judges can still be relied upon to reach a legally appropriate answer. But when partisans are asked to evaluate politically charged cases involving Obamacare, marriage equality, abortion, or other matters where both political parties have well-defined views, the motivated reasoning studies suggest that such partisans will find it very difficult to set aside their own preferences.

The implication is that Supreme Court justices cannot be trusted with our Constitution, at least as long as they are selected by political officials with a strong motivation to ensure that the justices are themselves highly partisan.