Justice Antonin Scalia will likely go down as one of the brightest minds, most forceful writers, and most colorful characters ever to serve on the U.S. Supreme Court. In many ways, he was a “giant” of the Court, as many of his obituary writers are stressing.
But Justice Scalia was also a poster child for many of the heuristics and biases featured in our Ethics Unwrapped video series that often cause people to make poor decisions in many realms, including the ethical. Justice Scalia was quick to criticize the “amateur” psychology that he perceived to be practiced by his fellow Justices (Lee v. Weisman). But it would have profited Justice Scalia to become a little more conversant himself with the human foibles uncovered by recent research in psychology, neuroscience, and related fields. Only by becoming aware of the mental heuristics and cognitive biases that commonly plague human decision makers can people guard against them. It would not have hurt Justice Scalia a bit to watch the Ethics Unwrapped videos on the Self-Serving Bias, on Conflicts of Interest, and on the Overconfidence Bias.
Consider the self-serving bias. Thoughtful people realize that the way in which they gather, process, and even remember information is heavily influenced by their self-interest and their pre-existing views. Reflective people realize that they must carefully examine their own innate bias to guard against its insidious effects. Yet Justice Scalia continually attacked those who disagreed with him for twisting the facts and taking inconsistent positions, seemingly blissfully ignorant that those same charges applied to himself just as much. An “originalist” who favored a “dead Constitution” that should reflect only the views of its original framers, Scalia utterly ignored how the self-serving bias caused him (as well as many of his opponents, of course), to read the historical record in a self-serving way.
As Jeremi Suri has noted:
Scalia and his followers were not historians, so they made their judgments of past meanings from a highly personal reading of text that they then imposed on many others who understood the same laws differently. From free speech and privacy to gun ownership and affirmative action, the dogmatic judgments of Scalia on the ‘original intentions’ of the founders were highly impressionistic, although given authority by his status, rather than any mobilization of research or evidence.”
Scalia was a proponent of textualism as a method of statutory and Constitutional interpretation who often assailed those who disagreed with his conclusions as being politically motivated. But empirical evidence shows that Scalia’s rulings on such matters demonstrated “a highly statistically significant association with ideological outcome judging.” (Cross, 2009). Scalia’s beloved textualism did not constrain his ideological judging any more than more liberal methods of interpretation constrained that of more liberal justices on the Court.
To move to conflicts of interest, it is important to note that when people are unaware of the impact of the self-serving bias, they tend to hold to a “stubborn belief … that they will not be influenced by self-interest, even when believing that others will be.” (Eldred, 2012)
When it was suggested that Justice Scalia’s going on a hunting expedition with a person heavily involved in a case then before the Court might create a conflict of interest, he was simply incredulous that anyone might voice even the slightest concern about his objectivity. His comments, Bazerman and Tenbrunsel have noted, “indicate that he rejects or is unaware of the unambiguous evidence on the psychological aspects of conflicts of interest.”
The overconfidence bias is another example of a human weakness that Scalia ignored while embodying it to a significant degree. As Bruce Allen Murphy has written: “He was certain of the rectitude of his views and had little interest in compromising with his more moderate colleagues.” Few justices have been so cocksure in the correctness of their own views as to feel comfortable ridiculing their fellow Justice’s opinions. Strong disagreement is common in majority opinions and dissents, of course. But, as Constitutional scholar Sanford Levinson has noted, no justice ever trash-talked like Scalia. Only a Justice with overweening confidence in his own intelligence and judgment could so rudely challenge the intelligence and judgment of other members of the world’s most powerful court. As Levinson has noted:
This use of vituperation was on full display in what will now count as his last major dissent: the Obergefell case that gave constitutional protection to same-sex marriage. One need not necessarily believe that the court made the correct decision (although I do). One might still bewail the language of sarcasm and insult that ran through his angry dissent. Consider his reference to the majority opinion as a “Putsch.” For any well-educated adult, the one-and-only example of a “Putsch” is Hitler’s “Beer Hall Putsch” of 1923, an important episode in the rise of Nazism. And Scalia immediately went on to say that his colleagues had failed their most elemental task, which was to “function as judges.”
This is vivid—and highly quotable—language, as is the case with much of what Donald Trump says. Like Trump, Scalia treated those who disagreed with him as fools or scoundrels.
Justice Scalia was witty, charming, and brilliant. And not as self-aware as he might have been.
Max H. Bazerman & Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (2011)
Frank Cross, The Theory and Practice of Statutory Interpretation (2009).
Tigran Eldred, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases, 65 Rutgers Law Journal 333 (2012).
Lee v. Weisman, 505 U.S. 577 (1992).
Sanford Levinson, Antonin Scalia Was Supreme Court’s Predominant Trash Talker, Dallas Morning News, Feb. 14, 2016.
Bruce Allen Murphy, Justice Antonin Scalia and the ‘Dead’ Constitution, New York Times, Feb. 14, 2016.
Jeremi Suri, Antonin Scalia Was No Conservative, Dallas Morning News, Feb. 14, 2016.