Mis-Concepcion: Why Cognitive Science Proves the Emperors Have No Robes

Abstract

Scores of scholars, practitioners and reporters assert that the United States Supreme Court, or at least its conservative majority, is business friendly. This claim gained new traction when Justice Posner, a known conservative jurist himself, wrote an article asserting that Justice Scalia is “incoherent” and that his alleged principles of construction are really excuses to “bend the law” to fit his conservative views on abortion, guns, homosexuality and other topics.

But are the claims true? And if it is true that the conservative majority reaches decisions that help businesses, how does this happen? Why does it happen? This article attempts to answer these questions by relying upon cognitive science. It coins the phrase “intuition rationalization,” or “IR” for short – a phenomenon the article defines as decision making that is driven by intuition first, followed by reasoning that is used to justify the decision rather than inform it. The article develops a first of its kind litmus test for IR, identifying “markers” in the cognitive science research that indicate that intuition is driving reason, rather than the other way around. These markers are: confirmation bias, substitution, strained reasoning, creation of “my-side” arguments, persistence and overconfidence.

Using two split decisions issued by the conservative majority as specimens - Stolt-Nielsen and Concepcion - the article engages in detailed legal analysis of the opinions, then scours the majority rationale for the indicia of IR. After several sections of careful analysis, the article concludes that IR is present in the conservative majority decisions. The article considers the real world impact of these decisions, relies upon hard data and scholarly literature to offers a reasonable explanation for how the majority got the answers so wrong, and provides brief suggestions for improvement.