Playing Dangerous Cognitive Dissonance Games With U.S. The Supreme Court

The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

The cognitive dissonance scale, now being used to weaken a crucial U.S. institution for political gain.

Of all government institutions, the U.S. Supreme Court has traditionally only trailed the Presidency in public trust and esteem. There are several good reasons for this. One is that being appointed for life, the Justices are presumed to be less subject to the personal and political agendas that make the positions of politicians suspect. Another is that the Court has often taken heroic stances that made the United States a better nation and more just culture. A third is that unlike elected political offices, that of a judge requires an education and technical expertise that the average citizen does not possess. The Justices are traditionally accorded the deference given to experts. Perhaps the most important reason we trust the Court is because we need to do so. It was made the third branch to protect the Constitution against violations of core rights, as well as to be an objective mediator when the other branches, or states, or courts, reach an impasse. Of the many ingenious devices the Founders put in place, the U.S. Supreme Court is one of the wisest.

That the Court is accorded inherent respect and trust is essential to the stability of our government. What the Court says, goes, and the culture and society, including the most furious dissenters in political parties and interest groups, must follow a ruling and constrain its efforts within those boundaries. There have been times when the Court recognized that its unique credibility obligated it to intercede in dangerous conflicts that might otherwise escalate to social unrest or worse. The 2000 Presidential election was a potentially dangerous situation because the result in Florida rested on a margin of error that the available technology was incapable of resolving with certainty.  Unlike the similarly dubious results in the 1960 election, the initial losing candidate and his party decided to plunge the nation into an electoral morass, in this case one complicated by politicized state courts, vague local statutes, confusing ballots, partisan media reports and varying standards of what constituted a vote, with the rotten cherry on top being a rare situation (it had happened only three times before)  in which a popular vote loser was  the apparent electoral vote winner. The Supreme Court stepped up and stopped it from spinning out of control, in essence declaring a winner. It was a courageous and responsible act, one that many (including me) predicted, and though it came at a high cost, one that exemplified why the Court’s public acceptance must be high—so it has some room to fall when it has to take a controversial stand.

This crisis was not the beginning of the effort by parties and activists to discredit the Court by impugning its motives and undermining the public’s trust, but it caused a permanent escalation. It was when the insinuation that a Justices nominated by Republican Presidents (or Democratic ones, depending on who’s leading the chorus of critics) see their job as bolstering that party’s policies and interests became routine. It is an example of less ethical people, as they tend to do, projecting their own rotten ethics on others. Judges appointed by conservatives and Republicans tend to support the same laws and policies those who nominated them do because that’s why they were appointed in the first place: they were deemed to posses a conservative judicial philosophy and world view as shown by their writings and decisions. They do not suddenly adopt such views out of loyalty or self-interest. What self-interest? They have the job for life; they can spit in the eye of their original patrons, and many metaphorically have. The members of the Court serve their interests by writing persuasive decisions that stand the test of time….they benefit by doing their jobs well. For the most part, they do it very well.

Both parties, however, have adopted the toxic and dangerous strategy of attacking the Court’s integrity, competence, fairness and motives every time a decision is reached that it does not agree with, as well as that of the individual justices. To the permanent shame of his legacy and his leadership, the President of the United States has joined in this mugging, with predictable results: the Supreme Court’s public standing has never been lower. That is bad for everyone and everything. but political activists believe it is good for them, as it allows them to challenge the legitimacy of good faith, intelligently reasoned decisions on the false pretense that the results were based on politics.

The Left’s unconscionable, anti-intellectual and misleading attacks on the Citizens United decision have been exceeded and matched by the Right’s freak-out over last week’s rulings on the Affordable Care Act and same-sex marriage. All are, of course, free to disagree with any Supreme Court decision, to seek lawful approaches to changing the laws dictating the decisions, and to pave the way for eventual reversals of decisions they deplore through differently constituted Courts. It is wrong and harmful to the government itself, however, to play cognitive dissonance games, linking individual justices or the court itself to values or alleged conduct low on the cognitive dissonance scale: partisan bias, corruption, cowardice, or worse, with the inevitable result of pulling the Court ever lower on the scale above. This reduces its ability to settle contentious issues conclusively, and allows reckless demagogues like Mike Huckabee to propose defying the law of the land.

It is also reckless, unwarranted and unfair.

Most of all, however, the practice weakens a vital and essential institution in the interest of short term political gain, engineered by cynical politicians. most of whom who are completely incapable of doing what the Court does, or even comprehending it.

* * *

RELATED: The same Court that Republicans and pundits have been attacking for days as being interested only in following polls, being popular, or avoiding the President’s wrath today delivered an opinion upholding capital punishment by lethal injection, despite recent polls stating that only 43% of the public favors the death penalty for convicted murderers, except in cases of terrorism.

The case is Glossip v. Gross (Read it here). In particular, read Justice Breyer’s provocative dissent asserting that the death penalty is unconstitutional, and Justice Scalia’s definitive (I believe) rebuttal explaining why it is not.



15 thoughts on “Playing Dangerous Cognitive Dissonance Games With U.S. The Supreme Court

  1. So far, I agree regarding Scalia and the death penalty. Favorite line so far: “In insisting that ‘the major alternative to capital punishment—namely, life in prisonwithout possibility of parole—also incapacitates,’ post, at 24,JUSTICE BREYER apparently forgets that one of theplaintiffs in this very case was already in prison when hecommitted the murder that landed him on death row.” Although I’m still reading, and will try to read the dissents as well. I also like where he points out that it is the abolitionists such as Breyer that are responsible for the delays they are now complaining about…

  2. I read the concurrence by Thomas, and the dissent by breyer. I appreciate Thomas for pointing out the arbitrariness of the data cited by Breyer. The only point I sort of agree with Breyer on is the unreliable nature of the court system, such that innocent people almost certainly do get convicted in capital cases. That is a flaw, but I don’t think it makes the punishment either Cruel or Unusual. It should raise due process issues. The individuals in this case already had gotten their full set of appeals based on due process.

  3. As said before, I find the discussion on this blog – and not only by Jack, but by other contributors as well – to be among the best out there. I’ve learned a lot from it.

  4. I’d be interested in finding out whether there are any high-profile supreme court cases where the losing side accepted the judgement with good grace. Off the top of my head I can’t think of one, but I could be wrong and I don’t have the time at the moment to go do the research. If my intuition is correct, does this mean that we should be leery of having the Court act as final arbiter for controversial cases with large policy impacts? I’m not sure.

    • Judging by the idea of three separate but equal branches of government as the originators of the Constitution devised them I’d say we should be leery of all controversial cases with large policy impact no matter which branch acts. The whole point is to be leery and to be informed and to hold all branches accountable. Accepting with good grace has it’s limits, but obeying the law ethically does not.
      I expect to accept this with whatever you call the specific objective of making my opinion heard and my vote smart, even though I know a Wyoming vote is somewhat meaningless in changing federal policy. I can at least hope to keep local and state politicians accountable. I’m increasingly grateful to live in the rural West.

    • I was wondering the same thing. Right now, it’s my perception that social media and cable loudmouths plus bloggers make the complaints far more noisy than they were; they were also more regionalized. The main difference is that while the decision was attacked, the Court wasn’t to this extent, and when it was, it was attacked by the fringes.

      President Obama attacking the Court in the SOTU address was a terrible break with precedent, and one of his (many) harmful leadership gaffes.

      • I think you can bet your last dollar that if Facebook and Twitter had existed 15 years ago the internet world would have exploded at Bush v. Gore. The left lost its respect for SCOTUS then, and never will regain it, although I believe Roberts is bending over backwards to appear non-partisan, at least wrt Obamacare. Now the Court has again overruled the popular vote, and the right is understandably displeased. The only difference between a bad idea and an unconstitutional one is a single vote, and if that single vote goes the wrong way, now everyone knows it and everyone can say exactly what they think about it. Given Gawker’s recent cluster f-bomb attack against every single goddamn GOP candidate by name after this decision, it should come as no surprise that others follow suit. Institutional respect is at an all-time low in this nation, although the cult of personality is now strong. It should not come as a surprise if Hillary starts beating the drum for the older conservative justices to be somehow pushed out so she can install those more to her liking.

    • If you take the view that the justices should be cold analytical rationalists – as I think Jack does – then it is inevitably hard to accept losing with ‘good grace’. 2+2 doesn’t equal 5 however many of you say it does.

    • “If my intuition is correct, does this mean that we should be leery of having the Court act as final arbiter for controversial cases with large policy impacts? I’m not sure.”

      No, it means we should be leery of having Congress be the initial arbiter of Laws that are hopelessly complex and aren’t even in the business of the National level of Government.

  5. It is wrong and harmful to the government itself, however, to play cognitive dissonance games, linking individual justices or the court itself to values or alleged conduct low on the cognitive dissonance scale: partisan bias, corruption, cowardice, or worse, with the inevitable result of pulling the Court ever lower on the scale above. This reduces its ability to settle contentious issues conclusively, and allows reckless demagogues like Mike Huckabee to propose defying the law of the land.

    Indeed. It is particularly dangerous, though, when the government itself plays these games, in the person of the President and, to a lesser extent, Congress. We can’t really expect more (realistically) from the margins, and in my view, as a “religion must inform all government” conservative, Huckabee is truly marginal. I would not vote for him for fear God might tell him to disclose the nuclear launch codes to ISIS. Seriously, God gave us all minds to use, not to lose when things offend our religion. Jesus had nothing if not a sense of humor, but instead of following his lead in that regard, both fringes engage in freak-outs.

    President Obama’s callout of the Supreme Court in his 2010 State of the Union address represents the modern low in Supreme Court abuse by cognitive dissonance, in my view. It is a nadir that even Huckabee’s extreme remarks fall short of by a mile, due mainly to the fact that Obama is the leader of the country and Huckabee is just applying for his job, and that application traditionally produces hyperbole and dishonest representations (even though that should be a disqualifier). If Huckabee were actually able to carry out his threat, he would eclipse Obama and cause chaos. Fortunately, I’m relatively comfortable with the prediction that Huckabee will not be our next president.

    We don’t have to like the Court’s decisions, but usually, they are arrived at through a legitimate and thoughtful process. Yes, it’s arguable Kennedy went off the reservation a bit in Obergefell v. Hodges, but no less so than the Roe v. Wade court, and somehow we managed to survive that one. Obergefell may have a similarly polarizing effect that lengthens the culture war over gay marriage for decades, but it was also arguably a brave step to a just end.

    Second-guessing the court is every citizen’s right. Where things go wrong is when the organs of government are used to attack the court, either directly from the starting lineup (Obama) or from the cheap seats (Huckabee et. al.) The biggest worry of all is the 4th estate, because they have the biggest megaphone, and their cognitive dissonance is often informed by even more ignorance than the average person who closely watches politics in general and the Court in particular.

    Parties are going to be partisan, ridiculous on the fringes, and loud. But in my opinion, it is those to whom we entrust government power and those who glean their credibility from deceptive representations that they are neutral arbiters of the truth that we have to watch out for.

  6. That said – what is to be done when the Supreme Court issues a decision that is horrifically wrong (Dred Scott, for instance) or one that is eventually questioned, both by new scientific developments and decades of debate (Roe v. Wade)?

    The other problem is that in the worldview of the Left, Hobby Lobby and Citizens United are decisions that are anathema on par with the Lochner case, just as the Right views the Obamacare and gay marriage cases to be on par with Roe v. Wade in terms of legitimacy (more accurately, the lack thereof).

  7. When the Supreme Court (or any federal court) weigh the merits of a case by the Constitution (as they have sworn to do) I laud them, despite the outcome. All to many of these judges couldn’t care less. It IS a political agenda which drives them and the Constitution be damned. They do this for arrogance and for personal gain. And every one who does is an oathbreaker and a criminal besides.

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