Democracy's Distrust: Contested Values and the Decline of Expertise

Abstract

This response to Professor Dan Kahan’s recent Harvard Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, argues that while Kahan accurately describes the contemporary “neutrality crisis” and the consequent popular mistrust of the Supreme Court, he has mistaken its cause and thus proposes the wrong solution. Kahan attributes the crisis to “motivated cognition,” and asks judges to adopt techniques that rely on and foster an underlying popular agreement about cultural values. This response essay instead acknowledges the existence and inevitability of contested values in our constitutional democracy. The essay contends that the real causes of the neutrality crisis are the declining credibility of expertise and a growing popular belief – spread by legal academics (and others) who accuse the Court of politically motivated activism – that judges are legislators in robes. The solution thus cannot come from judges, but depends on a fundamental change in how we describe and criticize the Court, its Justices, and its decisions.