Unfair (62 page)

A related source of distortion involves the tendency to avoid blowing the whistle in critical situations. Moskowitz and Wertheim,
Scorecasting
, 24–30. Refs don't want to risk being seen as introducing bias and so, across a range of sports—hockey, football, and basketball, included—they show a significant tendency to omit calling fouls where it is not absolutely clear in the final moments of a game. Moskowitz and Wertheim,
Scorecasting
, 24–30. Instead, they go ahead and let the players “play” and “determine their own destinies.” But, of course, that is neither fair nor an accurate description of what is happening: erroneously not calling an offensive foul that wins the game for one team is distorting the righteous outcome just as much as erroneously calling an offensive foul that loses the game for the same team.

Finally, like judges, referees are not:
Anderson and Pierce, “Officiating Bias,” 692–93; Moskowitz and Wertheim,
Scorecasting
, 138. We are a profoundly social species and none of us can just turn off the influence that other humans have on our decision-making. As with those who preside over our courts, sports officials will swear that they are not influenced by public perceptions, but the evidence suggests otherwise. Moskowitz and Wertheim,
Scorecasting
156–65. In soccer, referees award fewer cards and more penalties to home teams and increase the amount of extra time at the end of a match when the home team is trailing and reduce it when they are ahead. Peter Dawson, et al., “Are Football Referees Really Biased and Inconsistent?: Evidence of the Incidence of Disciplinary Sanction in the English Premier League,”
Journal of
the Royal Statistical Society: Series A
170 (2007): 249; Matthias Sutter and Martin G. Kocher, “Favoritism of Agents—The Case of Referees' Home Bias,”
Journal of Economic Psychology
25 (2004): 467–68; Luis Garicano, Ignacio Palacios-Huerta, and Canice Prendergast, “Favoritism Under Social Pressure,”
The Review of Economics and Statistics
87 (2005): 209. Moreover, the bigger the crowd and the closer they are to the field, the larger the home-team bias. Moskowitz and Wertheim,
Scorecasting
, 160. The same trends are evident in basketball, football, and baseball: at away games, basketball players have an increased probability of being called for fouls and traveling, football players face a heightened likelihood of being penalized, and baseball players are at a disadvantage in calls related to stealing bases and turning double plays. Moskowitz and Wertheim,
Scorecasting
, 160.

Most would vigorously deny that:
Justice Scalia is a case in point of how judges almost never see themselves as acting in a biased fashion. He counts his statement refusing to recuse himself from a case involving Vice President Cheney, with whom he'd gone duck hunting, as “maybe the
only
heroic opinion [he] ever issued.” As he explained, “I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that's the only heroic thing I've done.” Jennifer Senior, “In Conversation: Antonin Scalia,”
New York
, October 6, 2013,
http://nymag.com/​news/features/​antonin-scalia-2013-10/
.

Indeed, most would feel quite confident:
Guthrie, Rachlinski, and Wistrich, “Blinking on the Bench,” 43.

Legal training, experience, and the rules:
Vidmar, “The Psychology of Trial Judging,” 58.

Certainly, precedent and statutory laws can act:
Vidmar, “The Psychology of Trial Judging,” 58.

Justice Antonin Scalia's textual originalism:
Richard A. Posner, “The Incoherence of Antonin Scalia,”
New Republic
, August 24, 2012,
http://www.tnr.com/​article/magazine​/and-arts/106441​/scalia-garner-reading-​the-law-textual-​originalism?page=0,0
.

A judge's decision, then, turns on:
Antonin Scalia and Bryan A. Garner, interview by Stephen Adler,
Thompson Reuters Newsmaker
, September 17, 2012.

With seemingly no room for personal:
Textual originalism, according to Justice Scalia and his coauthor, Bryan Garner, is the only “objective standard of interpretation even competing for acceptance.” Posner, “The Incoherence of Antonin Scalia.”

The Fourth Amendment begins:
U.S. Const. amend. IV.

Is using a thermal-imaging device:
Kyllo v. United States, 533 U.S. 27 (2001).

Is placing a GPS tracking device:
United States v. Jones, 132 S. Ct. 945 (2012).

In situations like this, a judge is free:
Posner, “The Incoherence of Antonin Scalia.”

This is particularly evident in:
Allison Orr Larsen, “Confronting Supreme Court Fact Finding,”
Virginia Law Review
98 (2012): 1255–1312; Josh Rothman, “Supreme Court Justices: Addicted to Google,”
Boston Globe
, June 7, 2012,
http://www.boston.com/​bostonglobe/​ideas/brainiac/2012​/06/supreme_court_j.html
.

The common portrayal is that:
Adam Liptak, “Seeking Facts, Justices Settle for What Briefs Tell Them,”
New York Times
, September 1, 2014,
http://www.nytimes.com/​2014/09/02/us/politics​/the-dubious-sources-of-some-supreme-court-facts.html
.

But members of the Court actually:
Larsen, “Confronting Supreme Court Fact Finding”; Rothman, “Supreme Court Justices.”

Rather than simply relying on:
Larsen, “Confronting Supreme Court Fact Finding”; Rothman, “Supreme Court Justices.”

Indeed, in surveying the 120 most:
Larsen, “Confronting Supreme Court Fact Finding,” 1262.

If a case comes down to:
United States v. Sykes, 131 S. Ct. 2267, 2270 (2011).

In
United States v. Sykes
,
both:
Larsen, “Confronting Supreme Court Fact Finding,” 1266. As Justice Kennedy wrote in the majority opinion, “Although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony.”
Sykes
, 131 S. Ct. at 2274. So where did these important statistics come from? They did not appear in the briefs or in the record from the court below—rather, they were found by the justices and their clerks. Larson, “Confronting Supreme Court Fact Finding,” 1266–67.

Isn't this precisely what we want:
The Supreme Court is faced with a caseload that gets more diverse and specialized each year. If a justice does not feel he or she possesses enough knowledge to make an important decision, shouldn't he or she seek out additional information? The Federal Rules of Evidence take just such a solicitous view of this type of “in house” fact finding, placing no restrictions on the practice. Larsen, “Confronting Supreme Court Fact Finding,” 1267–68.

In many cases, the “facts”:
Larsen, “Confronting Supreme Court Fact Finding,” 1277–86. This is particularly noteworthy because citations and sources are uniquely important to the law. In the United States, the law's authority relies, in part, on the perceived legitimacy of the individuals and institutions charged to uphold and enforce it, but also, to a great extent, on the reasoning that those individuals and institutions employ. The facts carry a great amount of power. They may be used to persuade readers or to make a shaky proposition seem more solid.
They may be employed to win over sympathetic colleagues or undermine the positions or reasoning of adversaries. Sometimes the particular fact that a judge “uncovers” is essential to the outcome of the case—indeed, it may resolve the key question at issue. Larsen, “Confronting Supreme Court Fact Finding,” 1277–86.

Judges, just like the rest of us, tend:
Ezra Klein, “Unpoular Mandate,”
The New Yorker
, June 25, 2012,
http://www.newyorker.com/​reporting/2012/​06/25/120625fa_fact_klein​#ixzz1yF1uS1MZ
. In conducting a “common sense” parsing of a statute or case, a judge may be steered quickly and surely to what he believes and expects to be true, as he ignores, rejects, and overlooks contradictory evidence. Posner, “The Incoherence of Antonin Scalia.”

When judges do research:
Larsen, “Confronting Supreme Court Fact Finding,” 1300.

The underlying drive is to bolster:
Christopher H. Achen and Larry M. Bartels, “It Feels Like We're Thinking: The Rationalizing Voter and Electoral Democracy” (prepared for presentation at the Annual Meeting of the American Political Science Association, Philadelphia, August 30–September 3, 2006),
http://www.princeton.edu/​~bartels/​thinking.pdf
; Klein, “Unpopular Mandate.”

But, in fact, having more information:
Achen and Bartels, “Rationalizing Voter and Electoral Democracy”; Klein, “Unpopular Mandate.”

When a pair of political scientists:
Achen and Bartels, “Rationalizing Voter and Electoral Democracy,” 12; Klein, “Unpopular Mandate.”

A similar effect was found:
Klein, “Unpopular Mandate.”

With more information on hand:
Klein, “Unpopular Mandate.”

Our analytical skills can be distorted:
Dan M. Kahan et al., “Motivated Numeracy and Enlightened Self-Government,” The Cultural Cognition Project Working Paper No. 116 (2013); Keith O'Brien, “Do the Math? Only if I agree with It!”
Boston Globe
, October 20, 2013,
http://www.bostonglobe.com/​ideas/2013​/10/20/math-only​-agree-with/​dNXiuubRILEUqtQ8IzUqEP/story.html
.

In one set of experiments, researchers looked:
Kahan et al., “Motivated Numeracy,” 25–26.

On the skin-rash evaluation:
Kahan et al., “Motivated Numeracy,” 21; O'Brien, “Do the Math?”

But when participants were asked to:
Kahan et al., “Motivated Numeracy,” 21–24; O'Brien, “Do the Math?”

When the data pointed to a conclusion:
Kahan et al., “Motivated Numeracy,” 25–26.

Given numbers suggesting that crime decreased:
Kahan et al., “Motivated Numeracy,” 21–24; O'Brien, “Do the Math?”

The reverse was true for liberals:
Kahan et al., “Motivated Numeracy,” 21–24; O'Brien, “Do the Math?”

Despite knowing how to use:
Kahan et al., “Motivated Numeracy,” 24–28; O'Brien, “Do the Math?”

Indeed, when Justice Elena Kagan:
Larsen, “Confronting Supreme Court Fact Finding,” 1275;
Sykes
, 131 S. Ct. at 2290 n. 3 (Kagan, J., dissenting).

Look at recent opinions and you'll see:
Larsen, “Confronting Supreme Court Fact Finding,” 1300. Sure, there is the
New England Journal of Medicine
, the
New York Times
, and the website of the FDA, but so also
Musicweek
, the
Arkansas Gazette, Sporting News
, and the
Rape, Abuse, and Incest National Network. Larsen, “Confronting Supreme Court Fact Finding,” 1286–89.

They have spouses, children, and friends:
Roxanne Roberts and Amy Argetsinger, “A Truly Exclusive Washington Party: Antonin Scalia Hosts Justices to Toast New Henry Friendly Bio,”
Washington Post
, May 1, 2012,
http://www.washingtonpost.com/​blogs/reliable-source/​post/a-truly-exclusive​-washington-party-antonin-​scalia-hosts-justices-to-toast​-new-henry-friendly-bio/2012​/04/30/gIQAR2vYsT_blog.html
.

Justice Scalia reads two newspapers:
Senior, “In Conversation.”

As he told a journalist:
Senior, “In Conversation.”

He was tipped over the edge:
Senior, “In Conversation.”

He “usually” listens to talk radio:
He particularly likes Bill Bennet. Senior, “In Conversation.”

In the past, he went to dinner parties:
Senior, “In Conversation.”

And you may surround yourself:
While judges like to trot out examples of clerks they hired who had different worldviews (likely to bolster their self-affirming views as neutral and unbiased), such actions are exceptional. As Justice Scalia has explained, “I've said often in the past that other things being equal, which they usually are not, I like to have one of the four clerks whose predispositions are quite the opposite of mine—who are social liberals rather than social conservatives….The trouble is, I have found it hard to get liberals…who pay attention to text and are not playing in a policy sandbox all the time.” “In Conversation With Antonin Scalia,”
New York
,
http://nymag.com/​news/features/​antonin-scalia-2013-10​/index6.html
. In fact, empirical research shows that the hiring of clerks has taken on an increasingly partisan character over time. So, for example, 92.7 percent of Justice Scalia's and 100 percent of Justice Thomas's
clerks served for a lower federal court judge appointed by a Republican president. William E. Nelson, Harvey Rishikof, I. Scott Messinger, and Michael Jo, “The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation,”
Vanderbilt Law Review
62 (2009): 1775–76, 1780.