Random thoughts: Classifying cognitive biases; Dragging fairness into radical right legal reasoning

Cognitive bias update

There are about 190 unconscious human biases identified so far. In politics and religion, perceptions of reality, human thinking (data processing) and belief formation/emotional/intuitive reaction are often or usually driven significantly or mostly by one or more unconscious biases. We are not aware of this until after the unconscious mind does its initial processing and then alerts the conscious mind of what it sees and has decided. The conscious mind then usually accepts the unconscious mind's perceptions and opinions, and then we consciously act accordingly. Some people are better attuned to stopping and consciously reconsidering the prior decision before acting on it in terms of observable behavior. Sometimes, maybe more often than not in some situations, we act before we are consciously aware or are in conscious control.

Cognitive bias research has reached a point where it is time to consider how to classify biases into groups and subgroups. The point being to try to discover underlying or bedrock cognitive or psychological sources of bias, belief and behavior. A recent paper, Toward Parsimony in Bias Research: A Proposed Common Framework of Belief-Consistent Information Processing for a Set of Biases, discusses this. The paper hypothesizes that groups of bases are linked by, or flow from, fundamental beliefs such as me or my group is reasonable or that I am good.

The paper notes that people’s information processing is influenced by empirically observed biases. Biases were found by various lines of research, but that tends to obscure shared neurological or psychological causes for the biases. Thus, some unrelated biases such as bias blind spot, hostile media bias, egocentric/ethnocentric bias and outcome bias, appear to come from some combination of fundamental prior belief and the human trait toward belief-consistent information processing. Humans really dislike the cognitive dissonance that arises from disconnects between reality and personal beliefs, group or tribe membership, personal morals and the like. But as we all know by now, what is consistent with personal moral or belief can be, and often is, partly, mostly or completely inconsistent with real facts, true truths and/or sound reasoning.

In other words, specific beliefs tend to guide information processing in the unconscious mind. The paper proposes that influence of different biases can arise from a common underlying belief. The output of bias in terms of behavior reflects the unconscious mind doing its thing, i.e., information processing. By trying to classify groups of apparently linked biases, researchers hope that will point to hypotheses about underlying biological/social/psychological sources for groups of apparently linked biases. In turn, those hypotheses can be tested for their validity. If valid, that will lead to more confirmatory research. If invalid, that will lead to different hypotheses that need to be tested for validity.

Obviously, bias research is still struggling to understand the nature of biases, unconsciousness, consciousness, the mind generally and how they work. But this is why issues and beliefs in politics and even facts are often or usually so messed up, irrational and/or bitterly contested.

______________________________________________________________________

______________________________________________________________________

Fairness in the law

To me and some other observers, the concept of fairness is generally antithetical to radical right legal reasoning, politics and policy. It just never comes up and isn't a concern. But in view of its unprincipled reasoning the radical right Supreme Court, finds the concept useful to get a radical right decision when the other bases to decide a case look flimsy or are non-existent. 

This is about the lawsuit that some radial right state Attorney Generals have filed to block Biden's attempt at student loan forgiveness. For a refreshing change, the law is crystal clear. The law allows Biden or his administration to engage in student loan forgiveness for those affected by a national emergency. In this case a COVID national emergency was declared by both Trump and Biden.  

So the law is clear, Biden's student loan forgiveness program is legal. Instead of calling it illegal as apparently most experts expected[1], the six brass knuckles capitalist Republicans on the Supreme Court also complain that loan forgiveness is unfair. Unfair? What is fair, just like what is unfair, is an essentially contested concept.[2] There is rarely, if ever, any rational way to resolve a dispute about what is fair and what isn't. B&S writes about this bizarre situation:

Caring About “Fairness” Is a Political Choice

The Supreme Court’s conservatives have spent their careers disclaiming the relevance of “fairness” in legal analysis. Now, though, a Democratic president is trying to do something they don’t like.

Last year, President Joe Biden announced a plan to forgive up to $20,000 in student debt for some 43 million borrowers whose lives and livelihoods were upended by the COVID-19 pandemic.

.... the conservative legal movement has coalesced around what I would describe as a jurisprudence of fuck-your-feelings. In this conception of the constitutional order, judges are not to behave as “activists” who concern themselves with fuzzy concepts like “equity” (whatever that means) or doing “justice” (same). Instead, they are to set aside their policy preferences and apply the law as written, no matter where the analysis takes them.  

“Textualism means you are governed by the text. That’s the only thing that is relevant to your decision,” the late Justice Antonin Scalia told Fox News’s Chris Wallace in 2012. “Not whether the outcome is desirable, not whether legislative history says this or that. But the text of the statute.”

For this reason, it was more than a little startling to hear conservative justices spend their time on Tuesday fixated on a point that will be familiar to anyone with children who are old enough to talk. The legal authority for Biden’s plan is a 20-year-old federal statute that allows the Secretary of Education to “waive or modify” student debt obligations for borrowers affected by a national emergency. The statute’s text is neither complicated nor ambiguous. To anyone without a terminal case of Federalist Society brain, its relevance to an economic crisis stemming from a global health disaster that has dragged on for three years and counting does not require detailed explanation.

And yet, the conservative justices argued, there remains a fundamental problem with Biden’s plan: It just isn’t fair to those who would not benefit from it.

“I think it’s appropriate to consider some of the fairness arguments,” announced Chief Justice John Roberts, who posed an elaborate hypothetical about two high school graduates: one who borrows money to go to college, and the other who borrows money to start a lawn care business. The Biden plan, he argued, provides nothing to the businessman and yet forces him to subsidize the student. “Why isn’t that a factor that should enter into our consideration?” asked Roberts, apparently unable to fathom a more sympathetic debt-saddled person in America in 2023 than a guy who owns a business.

Set aside whether Biden's loan forgiveness plan is good, bad or ambiguous policy. Ignore it. Instead, just consider how utterly unprincipled the radical right Republicans on the Supreme Court are. They want radical right decisions, no matter how they get them. 

What are radical right decisions? Ones that radical Christian nationalist theocrats and/or brass knuckles capitalists would want, regardless of what the law is. For this particular case, the elite Supreme Court  Republican radicals appear to be mostly wearing their brass knuckles capitalist hats. But who knows, maybe most Christian nationalist theocrats would also approve. A lot of the students are minorities. Most elite Christian nationalists appear to be race and ethnic bigots at best, virulent bigots or racists at worst.

Footnotes: 

1. Salon writes about the radical right legal tactic that will probably mostly decide the case against Biden's loan forgiveness program:

But most of the conservative justices have devised a tool to wriggle out from under the text of a law: the “major questions doctrine,” a dubious and ill-defined rule that courts can use to strike down any policy that presents a “major question” if Congress has not authorized it explicitly enough. (How major? Nobody knows.) Chief Justice John Roberts involved the major questions doctrine in an early colloquy with Solicitor General Elizabeth Prelogar, who was there representing the Biden administration to defend the program. He asked Prelogar if she “would recognize at least that this is a case that presents extraordinarily serious, important issues,” requiring the court to look at it “a little more strictly than we might have otherwise to make sure that this was something that Congress would have contemplated.” Kavanaugh connected the doctrine with the notion that courts should look skeptically at policies justified by emergencies, implicitly invoking decisions that upheld Japanese internment and other wartime civil liberties violations as a (questionable) comparison.

Because it is ill-defined and mostly subjective, the major questions doctrine tactic will be used to knock down a lot of laws the radical right dislikes, maybe hundreds or thousands. This is a major tool that radical right authoritarians and theocrats will use to completely remake the law and constitution in their program to kill, among other things, democracy, civil liberties, the rule of law, secularism and inconvenient facts and history.

2. Wikipedia writes: 

Essentially contested concepts involve widespread agreement on a concept (e.g., "fairness"), but not on the best realization thereof. They are "concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users", and these disputes "cannot be settled by appeal to empirical evidence, linguistic usage, or the canons of logic alone".