Confirmation Bias

Justice Amy Coney-Barrett is clearly an accomplished, bright, and articulate juror.  I don’t happen to agree with her conservative interpretation of constitutional law.  However, partisan shenanigans aside, she was a worthy appointment to the Supreme Court.

During her confirmation hearing, she responded to the Senators' questions with sound legal theory and reasoning. But from a psychological perspective, her explanations were nonsense.  She was trying to sell the idea that Supreme Court cases are decided objectively, guided by philosophic principle, each case decided on its own merits.  Not so.

Human behavior is hard to predict.  But I believe that a Supreme Court justice’s vote can be predicted with at least 90% accuracy.  After all, no one is surprised when a ‘liberal’ judge votes liberally or when a ‘conservative’ judge votes conservatively.  However, when Chief Justice Roberts voted with the liberals on an Affordable Care Act case, some were pleasantly surprised, but others were shocked and dismayed.  The liberal judges weren’t criticized for voting liberally.  The conservative judges weren’t criticized for voting conservatively.  That’s what everyone expected. But when Judge Roberts did not vote with the conservatives, as predicted, he was roundly criticized.  His vote, in that case, was the exception that proves the rule.

If each court case was really decided objectively, only upon its own merits, then the outcome could never be so predictable.  Something else is going on.  That something else is, in psychological terms, called confirmation bias.

Psychologically, we often don’t base our beliefs upon facts, we find facts compatible with our beliefs. We often don't make decisions based upon facts, we find facts that support our decisions. Simultaneously, we deny, ignore, or dispute any contradictory facts. 

I assume that each of the Supreme Court justices are the best of the best jurists.  I assume that cases brought to the court are highly complex, often ambiguous, with many facts and precedents to consider, and with compelling arguments presented from both sides.

In complex court cases, being considered by the best of minds, each judge must review many facts, often contradictory facts. Then, if I am correct (and I am), they base their judicial opinions on the facts that best conform to their biases.  Conversely, they deny, ignore, or dispute any facts that may seem contradictory.  There is no such entity as a judge that is objective and without bias.  That’s just not human psychology. If you know where a Supreme Court judge is on the political spectrum, then you know how the Supreme Court judge will vote, at least 90% of the time.

Ironically, confirmation bias seems to have a double meaning. I didn’t need the recent Senate confirmation hearings to know how each of the Senators would vote.  Senators selected or ignored facts, as the facts did or did not conform to their biases, but facts never changed a single vote. The votes, for or against Judge Coney-Barrett’s confirmation, were preordained. The confirmation hearing was nonsense, a waste of time and energy.  I can confirm that, without bias.