Oct 27, 2020
Abolish Judicial “Objectivity”
Last night’s ceremonies ushering in new Supreme Court Justice Amy Coney-Barrett are drawing parallel ire and adoration from distinct sides of the partisan aisle. Fox has a slew of stories that paint Republicans as the innocent victims of Democratic hate and anger, while sites like Huffington Post condemn the decision as rushed and note the zero Senate Democrats who voted in favor of the decision. As is to be expected, opinion is severely split along partisan lines, and has been for months.
Central to arguments for now-Justice Coney-Barrett is the idea that she is a professional champion of impartial justice. The notion spans across right-wing media, and was captured in her own confirmation remarks last night. But how valid is this argument? The question has implications far beyond one justice’s nomination, and answers should arguably reshape how many think of judicial systems entirely.
The Judicial Oath
A judge declares independence; not only from Congress and the President, but also from private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty: the rule of law must always control. — Supreme Court Justice Coney-Barrett, in remarks on 10/26/20
These are words spoken by Justice Coney-Barrett last night during her swearing-in ceremony. They capture a narrative that the right is pushing: judges and justices are not partisan actors, they are simply upholding the “rule of law.” We should question this because the underlying truth beneath rhetorical power flips this narrative on its head.
This idea that humans are capable of acting in complete objectivity and impartiality is a narrative that has roots in Enlightenment thinking. Crystallized famously in the work of Adam Smith, classical interpretations of fields such as economics rely on the idea of people as “rational actors.” In classical economics, predictions arise out of assumptions that people in the system are making the most rational choice based on tastes or demand to generate the aggregate quantities of supply and demand. This style of thinking continued through the centuries and reached what some may consider an apex in the philosophy of the Vienna Circle, which sought to reform philosophy to cohere to absolutely rigorous logical scrutiny.
To sum up a long story, the attempts of the Logical Positivists at the Vienna Circle did not pan out as they had hoped. There are now new trends in economics, philosophy, and many other fields that instead argue that human beings are not purely rational, but can be highly “irrational” — for rational reasons. These are the persuasive arguments behind cognitive biases, and their associated applications in fields like behavioral economics. An abundance of research demonstrates that humans are actually subject to innate biases that make our world easier to understand, so we don’t have to spend the cognitive energy rigorously verifying logical truth.
It’s not like Justice Coney-Barrett could just stop being biased by saying that she promises to. She, and everyone else, has deep-seated biases and models of the world that have been forming since birth, and take intense and lengthy engagement to change.
The narrative of “impartial” and “professional” actors in any organizational structure is one that is highly dangerous. It has been historically used to justify minority, aristocratic rule over a democratic majority. The argument dates all the way back to Plato’s Republic and has been argued to be central to the logic of the aristocratic Revolutionaries who founded this country on top of a regime of extreme racism and elitism — highly impartial. Under this interpretation of history, it almost makes sense that someone who is a self-proclaimed “originalist” would share the views of the Founders: those anchored in aristocratic minority rule, sheltered behind so-called impartiality.
But let’s give Justice Coney-Barrett the benefit of the doubt. We can put our faith in her to try her hardest to execute the office on behalf of the people. Can we trust her to put aside her partisan, personal beliefs on behalf of regular folks?
“Independence from Private Beliefs”
In political cognitive science and psychology, there is a growing body of work supporting the notion that political ideology — that is, where we fall on a Left-to-Right, generalized spectrum — is another instance of bias our brains concoct in order to make the world easier to navigate. Ideology, which is argued to drive both partisanship and issue-specific beliefs, ranges from those who advocate for change and against inequality on the Left, to those who do not want change and accept inequality on the Right. Having these generalized, subconscious filters to process information and drive political decisions reliably explains experimental data over almost a century of research.
The only trick with these cognitive generalizations is that we cannot get rid of them. They can change, to be sure, but many would argue such a feat would take something akin to psychoanalytic therapy which seeks to untangle complex models of the world by working through how they were formed. So barring a juggling act including childcare, Supreme Court Justice duties, and an intense psychological journey through therapy, we can be fairly sure that Justice Coney-Barrett will bring in all of her ideological biases to the bench.
This is crucial, because her claim that she will be “independen[t] from private beliefs” becomes an absolute lie in light of cognitive science. Similar to this notion is that of implicit bias, which many have been getting much-needed education on since this past summer’s uprisings. It’s not like Justice Coney-Barrett could just stop being biased by saying that she promises to. She, and everyone else, has deep-seated biases and models of the world that have been forming since birth, and take intense and lengthy engagement to change.
At this point, perhaps you’re on board, but perhaps you still don’t buy it. After all, isn’t a judge’s role to simply weigh precedent and rule based on statute — which is decidedly objective facts of the past?
Law is Not Math
Unfortunately (for some), I have to continue on my demolition of Justice Coney-Barrett’s assertions that she will simply be impartial by following precedent. She argues that, “…the rule of law must always control,” but unfortunately words on a page have no autonomy. No, judges are constantly engaged in the process of interpretation of precedent, because that’s how language works.
…even the most devout legal scholar, whom only considers arguments made from precedent, will be conducting a massive task of interpretation from the moment the first word is read.
It’s a feat that we can communicate with each other as is. If I say to you, “I am looking at a small, green fern on my windowsill,” there is a high likelihood that you imagine something completely different than what I’m seeing. You understand what I mean, sure, but the devil is in the details and in the context. Your idea of “small” may differ from mine because you might be smaller than I am. If I gave you the extra context that I was blue-green colorblind, would that change your interpretation of what I said?
This is an idea that was pointed out by Walter Lippmann in an early 20th century critique of journalism’s objectivity, and run with through Wittgenstein’s linguistic theories all the way to Derrida’s literary critique. When we are reading, it’s not as if we follow some axiomatic formula so that we all reach the exact same conclusion. Human communication is not absolutely precise — it is not math. Nor is legal interpretation.
Renowned Palestinian legal scholar, Noura Erakat, captures this idea beautifully as she argues that law can be thought of as a sail — a structure that can capture wind blowing one way or the other — that must be guided. She contends that a significant role of a lawyer is to interpret the law, not only to write it. This argument fits with an analysis of language, as even the most devout legal scholar, whom only considers arguments made from precedent, will be conducting a massive task of interpretation from the moment the first word is read. It makes clear that Justice Coney-Barrett’s implicit biases and ideologies will absolutely shape her rulings in the court; it is a matter of inevitability, not of professionalism.
And to extend the benefit of the doubt even more than is probably granted, even if we assume that Justice Coney-Barrett somehow is able to gain perfect knowledge of former legal scholars’ intentions behind their writing, the argument falls apart again. Following precedent even with perfect intention would likely mean following racist, sexist, classist precedent. Just like herself, past judges and Supreme Court Justices are products of their own time’s social factors. Even to follow the Founder’s logic is to follow an elitist, racist logic.
Abolish Objectivity
As a society, we need to move past this ingrained ideology that humans can be impartial, rational actors. In fact, we should recognize that those who espouse such a belief are likely those who suffer the most from bias. Those who would acknowledge their biases forthright are obviously at least aware of them. The absence of such an awareness, either for rhetorical purposes or otherwise, is absolutely dangerous in a world where the centuries-long status quo is seeped in racism, violence, and minority oppression.
A community who moves past this myth of objectivity is one which would be moving towards equitable justice. Law should likely be under intense scrutiny from this point of view, and arguments for diversifying the courts should logically follow. The law cannot represent the people unless the courts represent the people. And for now, we seem to be heading to a judicial ecology whose lack of diversity will seriously hamper any attempts to direct the sail to capture winds that move us closer to true justice.
