How can one spot a partisan ideologue?

Context

One of the complicated aspects of the human mind is its ability to unconsciously distort inconvenient or unpleasant reality and truths into a false perception of something much less inconvenient or unpleasant. The human capacity to create false but reassuring perceptions is prodigious. It happens fast, almost in real time, effortlessly[1] and unconsciously. We even delude ourselves into a false belief that what happened was done consciously and under our rational control. One observer called that time and reality distorting aspect of mind The User Illusion.  

One of the things that happens is that reality and truth is unconsciously processed through various innate human and personal factors such as biases, mental heuristics (rules of thumb), life experiences, social situations, culture (including race), sex, psychological factors, education, knowledge or ignorance of a particular subject, level of tolerance of ambiguity, cognitive strengths and weaknesses, self-image, self-esteem, moral values, political, economic and religious ideology, time orientation[2], etc. Those things can act as filters or lenses that can increase or decrease distortion of reality, truths and facts, and resulting beliefs and behaviors. The final output in a given situation, beliefs and behaviors, depend on personal and social traits and circumstances and the reality, truths and facts the mind is working on. Multiple filters are probably simultaneously at play most or all of the time for most issues in politics.

In at least one political context, judges deciding legal disputes, it is critically important to be able to recognize personal bias and thinking flaws associated with various factors, including personal political, religious and economic ideology. Blindness to personal ideology, tends to lead to flawed decisions based on partisan motivated reasoning. The question is how can one spot an ideologue and if so, how can one convince and ideologue that they are unreasonably biased when that is in fact the case?

Is Supreme Court justice Clarence Thomas a biased, closed-minded ideologue?

The topic I wrote about and posted yesterday focused on a speech that Thomas gave in defense of the current Supreme Court. he like things the way they are because, in my opinion, he is a rigid radical ideologue and the court is packed with like minded Republican radical ideologues. Of course he does not want to see the court changed in any way that would dilute his ability to ram through his heavily biased, radical Christian nationalist, laissez-faire capitalism vision of reality, morality, society and government. In my opinion, Thomas is a raging ideologue and that is a significant part of what has made him, among other undesirable things in a judge, closed minded and intolerant.

This post focuses on just one point, evidence or lack thereof of ideological presence and influence on how Supreme Court judges say they see themselves and on what basis they decide cases. From the same Washington Post article I referenced yesterday:

In recent weeks, Justice Stephen G. Breyer, during a book tour, has emphasized that he and his colleagues are not “junior league” politicians. Last week, the court’s newest member, Justice Amy Coney Barrett, told a crowd in Kentucky that justices are not a “bunch of partisan hacks” and that their divisions are based on competing judicial philosophies, not partisanship.

Thomas was also asked whether the legal questions he confronts on the bench ever conflict with his Catholic faith. Without giving examples, Thomas said, “There are some things that conflict very strongly with my personal opinion, my policy preferences, and those were very, very hard, particularly early on.”

“I don’t do a lot of hand wringing in my opinions and tell people, ‘oh, I’m really sad.’ That’s not the role of a judge. You do your job and you go cry alone.”

Clearly, some Supreme Court justices do not see themselves as politicians in black robes. Most all federal judges would probably say the same thing. But is that true? I doubt it at least for Republican judges. They have to pass ideological litmus tests to be nominated, e.g., anti-abortion, anti-government, etc. That is part of a radical ideological package called Christian nationalism.

More importantly in terms of evidence of ideological bias is in statements Thomas made in his speech. First, he explicitly said he has policy preferences and some of his decisions that contradicted his preferences, i.e., his ideology, “were very, very hard.” Second, he said about the bad decisions, “you go cry alone.”

If that is not evidence of ideological bias and emotional reaction, what is it? Instead of going home and crying alone, he should be proud to do the job of deciding on the basis of the law, not his wounded ideology and feelings.

People will differ in what they believe his comments mean. Some will say, of course judges have their ideology and sometimes dislike decisions the law forces them to make. A rebuttal to that is that if they have a strong ideology going in, and must pass rigid mandatory ideological litmus tests to even be nominated, that makes them biased politicians because they are human. Just because these people are unaware of what they are and deny their humanity does not make it true. Most everybody claims to be unbiased, fact-based and rational, especially judges. Science evidence on this point is overwhelming and not disputed among experts: Most everybody is self-deluded.

Another sleight of hand that justices like to use to cover the unpleasant reality is resort to the argument that they are not political, but instead merely express different “judicial philosophies.” What is the difference between a judicial philosophy and a political, religious and/or economic ideology? Judicial philosophy reflects ideology, so it is a distinction without much of a difference at least for Thomas. And, Thomas appears to sometimes apply a philosophy, if that’s what it is, called originalism. Presumably that is his judicial philosophy, but the onus is on him to tell us what basis he decides on.  

He is arguably inconsistent about his originalism. Some observers analyze his collective decisions as more conservative outcome oriented than reliably originalist. That smells a lot like more like politics than principled legal reasoning.

One last point that is important here, the Supreme Court intentionally operates in what is convincingly argued to be more opacity than is needed. Why excess secrecy? To hide bad things like the influence of politics, bias and flawed reasoning on decisions. Two critics of court and government secrecy wrote in 1973 (my blog post on this is here):

Our thesis may be simply stated: basic democratic theory requires that there be knowledge not only of who governs but of how policy decisions are made. .... We maintain that the secrecy which pervades Congress, the executive branch and courts is itself the enemy. .... For all we know, the justices engage in some sort of latter-day intellectual haruspication[3], followed by the assignment of someone to write an opinion to explain, justify or rationalize the decision so reached. .... That the opinion(s) cannot be fully persuasive, or at times even partially so, is a matter of common knowledge among those who make their living following Court proclamations. (emphasis added)

Thus, the onus is on the two-party system, including federal judges, to show that judges are not a “bunch of partisan hacks” as the radical right judge Barrett nicely put it. Why the litmus tests? Why resort to crackpot legal theories such as originalism (assuming originalism means anything coherent at all, other than a means of getting desired ideological results)? Why the unjustifiable secrecy?

I leave the questions of whether it is even possible to pick less biased and political judges, and how to do that for another time.

Questions: It is fair and reasonable to accuse Thomas of being a rabid, radical Christian nationalist and laissez-faire capitalist extremist who judges cases on that conglomeration of ideology whenever he can get away with it, or is there no good way to assess the role of either ideological bias or judicial philosophy in a judge?

Footnotes:

1. Of course there is biological effort in unconscious thinking , which is in essence input data processing. Calories are burned. But the effort is unconscious and we are unaware of it. That is unlike conscious thinking which is easily tired, distracted and bamboozled. We are generally at least somewhat aware of that aspect of our minds. We are mostly or completely unaware of the working of our unconscious minds. For the most part,** we only know this about ourselves by learning from science, not by directly experiencing it.

** Maybe some people trained in deep meditation and self-awareness have been able to teach themselves to somehow sense or become aware of some of the contours of how the unconscious mind works. That's something I am unfamiliar with and thus cannot express an informed opinion about.

2. Regarding time orientation: From a 2017 research paper: 

Time orientation is an unconscious yet fundamental cognitive process that provides a framework for organizing personal experiences [and perceptions of reality] in temporal categories of past, present and future, reflecting the relative emphasis given to these categories. Culture lies central to individuals’ time orientation, leading to cultural variations in time orientation. For example, people from future-oriented cultures tend to emphasize the future and store information relevant for the future more than those from present- or past-oriented cultures.

From another 2017 research paper:

This article investigates the relationship between an individual’s political ideology and risk perception of climate change, and particularly whether this relationship is affected by one’s time orientation and knowledge. We confirm that individuals with a higher ideological agreement with liberalism perceive a higher risk of climate change. This positive effect, however, is further augmented by individuals’ future time orientation, and lessened by their knowledge of climate change. Our findings suggest that it requires a more tailored strategy in climate communication in order to improve policy making and implementation.  

Among the behavioral biases, how individuals deal with the present and future is an important one. According to the construal level theory of Trope and Liberman (2010), as the temporal distance increases, risks in the future are mentally construed at a more abstract level compared to those in the present. This bias, however, may be mitigated when individuals possess a strong future time orientation. In other words, differences in individuals’ time orientation may influence the magnitude on which political ideology affects climate risk perception. 

3. Haruspication: the act or practice of divination from the entrails (guts) of animals slain in sacrifice, mainly sheep and poultry livers; haruspicy had its heyday as a religion in ancient Rome. I call this governance by chicken guts.