Should Amy Coney Barrett Withdraw in Society's Interest?
The psychology of fairness versus rational hardball.
Posted Oct 18, 2020
I suspect that, if Amy Coney Barrett were one of my colleagues at ASU’s law school, I’d like and respect her personally. I went to Catholic Schools for nine years, and she reminds me of some of the sincerely pleasant and moral students and teachers I knew growing up. There is research indicating that, although people are not especially good at detecting whether someone is telling the truth in a particular instance, people can, to some extent, detect broad personality traits from nonverbal cues. Though I have very little confidence in my judgment here, Barrett’s nonverbal behaviors lead me to perceive a trustworthy person (I do not have the same reaction to some of the other public figures who go out of their way to claim to represent Christian values, who strike me as rather insincere and dishonest).
But, for what it’s worth, Barrett looks like a charitable and thoughtful person, and I think her willingness to adopt two children from a third-world country is evidence of just such a charitable temperament. I am even inclined to trust her statements that her Supreme Court decisions would be guided not by a personal agenda, but by an attempt to understand how each case fits with existing written law. I believe that she would likely follow in the conservative footsteps of Antonin Scalia, as she has indicated, but is also telling the truth that she would not allow herself to be a puppet of the current president.
Despite my positive impression of Barrett’s temperament, I nevertheless think she could truly serve the greater public good by (at least temporarily) withdrawing her name from consideration before allowing the Senate to vote.
I make this suggestion not because I think that Republican Senators would be doing anything illegal by rushing through her nomination. Nor do I make this suggestion because I think she would be likely to follow my advice. It would surely be difficult to turn down the honor of a lifetime appointment to the Supreme Court. But Barrett’s moral sentiments might make her just the person to place the larger society’s interests above her own career aspirations.
Why would withdrawing be in the larger society’s interests?
My suggestion is based upon two things I have reading lately: One is the psychology of fairness, which is associated with some powerful emotions (e.g., Thaler, 2015). The other is the connection between three elements that Francis Fukuyama (2011) argues are the essential foundations of modern liberal democracy: trust in the state, rule of law and government accountability.
The argument is this:
1. Barrett has herself said: “the validity of government depends on the consent of the governed…”
2. Across twelve different surveys, only 39 percent of the American public (“the governed”) thinks the current Supreme Court vacancy should be filled by Donald Trump (vs. 52 percent who believe the winner of the 2020 election should decide).
3. Current polls suggest a majority of the American population disapprove of Trump, and intend to vote him out of office.
4. The historical precedent set by Mitch McConnell’s refusal to hold hearings for Merrick Garland (with 10 months remaining in Obama’s presidency versus perhaps only 10 weeks in Trump’s) offends the public’s sense of fairness in government, and undermines their trust in that government to carry out their will.
The psychology of fairness
Whether a particular decision is seen as fair or unfair is strongly linked to context and framing, as demonstrated in a series of experiments by Nobel-prize-winning economist Richard Thaler and his colleagues. When people are asked whether it is acceptable to raise the price of a snow shovel during a snowstorm, 76 percent of MBA students, who tend to adopt hard-nosed economic rationality in their decisions, think it is perfectly acceptable. However, when a broader sample of the population was asked the same question, only 18 percent find it acceptable, whereas fully 82 percent feel that it is unfair.
Mitch McConnell, like the MBA students, and following in the philosophical footsteps of Newt Gingrich, believes it was perfectly “rational” to use Republican power in the Senate to block Merrick Garland’s appointment but to now rush through Amy Coney Barrett’s, despite widespread public opinion to the contrary. Those who believe that government representatives should enact the will of the people regard this as grossly unfair. The terms of Amy Coney Barrett, like Trump’s other two court appointees, will also be forever tainted by feelings that the public will was totally disregarded by self-serving government representatives.
This isn’t just a matter of some portion of the public being “sore losers.” It is an issue of much broader consequence because trust in the fairness of government is one of the foundations of American democracy.
Of course, a little research reveals that the Supreme Court has not always had nine members, so the exact number of justices is not something that is somehow enshrined in the constitution. Hence, changing the number of justices to make up for perceived past legislative injustices, though it would be decried as “unfair” by those who previously bent the rules to their favor, would be perfectly in keeping with the written law and rational economic game-playing. The ball of perceived unfairness would be kicked down the road.
Now, MAGA supporters are fond of noting that the polls were off in predicting Hillary Clinton would win, so things could turn out differently. This ignores that polling models have been updated to take into account earlier mistakes and that the polls are, in any case, much more favorable toward Biden than they were toward Clinton. But, if we simply wanted to be careful in ensuring that the will of the people is carried out, Barrett could request that the final decision by the Senate be delayed until after the election, and then only withdraw if Biden actually wins. If she did that, she’d go down in history as a hero, rather than a judge forever tainted by association. And if Trump somehow won, the will of the people would be served.
Fukuyama, F. (2011). The origins of political order: From prehuman times to the French revolution. NY: Farrar, Straus, & Giroux
Thaler, R.H. (2015). Misbehaving: The making of behavioral economics. NY: Norton