Knowledge And Decisions

The virtual impossibility, in many circumstances, of having any real knowledge beforehand has created a demand for surrogates for knowledge — the so-called “findings” of “experts.” In Brown v. Board of Education, for example, Chief Justice Earl Warren confidently referred to psychological findings “amply supported by modern authority,”³⁹⁹ and cited as his particular authority a study subsequently devastated as invalid, if not fraudulent.⁴⁰⁰ Even the attorneys who used the study regarded it skeptically among themselves, and one said, years later, “I may have used the word ‘crap’. ...”⁴⁰¹ Courts, like other institutions, often fail to make the crucial distinction between (1) opinions in vogue among intellectuals, and (2) empirical evidence, based on recognized analytical procedures, such as controlling for variables other than the ones at issue. “Affirmative action,” for example, abounds with numbers and percentages which consistently ignore such gross demographic differences as age, and discussions of capital punishment repeat as dogma the findings of a superseded study which defined “capital punishment” as words in law books, rather than executions. To lump all these things together under the ponderous name of “expertise” is to add self-deception to insulation from the firsthand knowledge so readily dismissed as “public clamor.”

The purely institutional, factual, or methodological, deficiencies of legal decision making might explain random variations but not systematic bias. Indeed, bias is not quite the right word, insofar as it implies a preference for a particular principle, such as a Marxist’s preference for socialism or a teetotaler’s preference for non-alcoholic drinks. A court with a biased approach might, for example, consistently insist on an extremely stringent standard of proof, or — if biased in the other direction — consistently accept rather low levels of evidence as proof. The courts have done neither of these things. They have applied extreme standards of proof before accepting the convictions of some categories of defendants and have made other categories of defendants virtually have to prove their innocence. This is not a principled bias but social partisanship.

A court that believed in the principle of either “procedural” due process or “substantive” due process might consider following either principle or — if unable to make up its mind — vacillate randomly between them. The courts have done neither of these things. They have applied the principle of procedural due process to some social categories of litigants (property owners, for example) and substantive due process to others (criminals, for example). A court biased in principle for or against overriding the decisions of other institutions might consistently move in either of these directions, but the Supreme Court’s consistency is only in which kinds of institutional processes it would defer to (administrative agencies), and which kinds it would review and monitor in detail (state courts, businesses). Courts biased for or against the principle of extended accountability for the consequences of one’s actions might go in either of these directions, but only socially partisan courts would extend the principle to unprecedented lengths of “product liability” for businessmen⁴⁰² while reducing it by unprecedented amounts in libel immunity for newspapers.⁴⁰³ When the post-1937 Supreme Court ostentatiously repudiated the “substantive due process” doctrine in economic matters, it simultaneously began an extensive and unprecedented expansion of its scrutiny of the substantive nature of “due process” in criminal, civil liberties, and racial cases. This might appear to be “compartmentalized thinking”⁴⁰⁴ from the standpoint of reconciling principles, but it is perfectly consistent as social partisanship. Indeed, there is remarkable consistency in social partisanship across the various areas of inconsistent principles.