Cultural Cognition and Judges: the case of Scott v. Harris

Dan Kahan

Do judges rely on cultural cognition?

Cultural cognition refers to the tendency to conform one’s beliefs about putatively dangerous forms of behavior to one’s cultural evaluations of them. It’s less costly, psychologically speaking, to believe that behavior one views as noble is also socially beneficial, and behavior one views as base is socially harmful, than vice versa. Studies suggest that this phenomenon accounts for public disagreements over a host of issues, from gun control to climate change to vaccination of school-age girls for HPV.

If this dynamic influences judgments of ordinary citizens, why not judges? Indeed, at least one prominent jurist has suggested it does. “[O]ften in law it is very difficult,” Richard Posner writes, “to verify (or falsify) empirical claims by objective data.” In such cases, “judges perforce fall back on their emotions or intuitions. They practice ... ‘cultural cognition.’ ” The Role of the Judge in the Twenty-First Century, 86 B.U.L. Rev. 1049, 1064-65 (2006).

In a new paper, Don Braman, David Hoffman, and I present the results of study that furnishes powerful, if indirect, confirmation of the effect of cultural cognition on judges. The occasion for the study was the Supreme Court’s decision in Scott v. Harris, 127 S. Ct. 1769 (2007).

In Scott, the Court held a police officer did not violate the Fourth Amendment when he deliberately rammed his cruiser into the car of a motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The driver’s car flipped over and crashed, leaving him paralyzed from the neck down. The Court placed decisive weight on a videotape, filmed from inside the pursuing cruisers. “No reasonable juror” who viewed the tape, the eight-justice majority concluded, could fail to see that the risk to the public justified deadly force to stop the fleeing motorist.

But one Justice who viewed the tape, Justice Stevens, did fail to perceive that. Rather than attempt to rebut Justice Stevens’s conflicting interpretation with reasoned analysis, however, the Court took the unprecedented step of uploading the video to its website and inviting readers of its opinion to decide for themselves. “We are happy,” Justice Scalia wrote for the Court, “to allow the videotape to speak for itself.”

We decided to take the Court up on this unusual invitation. We arranged to show the video to a diverse national sample of some 1,350 people and to ask them about their view of the issues the Court identified as dispositive in the case.

Based on cultural cognition theory, we hypothesized that our test subjects would likely divide along cultural lines. Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found. Overall, a majority of our subjects agreed with the Court on the key facts in the case and on the outcome. But across persons of opposing cultural worldviews and related characteristics, there were sharp (and statistically significant) disagreements about these issues.

At oral argument Justice Breyer mocked the driver’s lawyer, who was arguing that his client’s behavior did not pose a lethal risk to the public, by quoting Chico Marx’s question, “Who are you going to believe—me or your own eyes?” Our study suggests that the real question posed by the case is whose eyes the law should believe when culturally diverse people form competing perceptions of risk.

But do these results also suggest that cultural cognition is working in judges? Yes, at least indirectly.

The proof consists in the Scott Court majority’s failure to recognize the cultural partiality of its own perceptions. The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

Such an oversight, we argue in the paper, is unfortunate. Because it didn’t perceive that what one sees reflects one’s cultural outlooks, the Court clearly got it wrong when it said that “no reasonable” juror could form a view of the facts different from its own. In addition, and much worse, by stigmatizing as “unreasonable” anyone who disagreed with their view of the facts, the majority needlessly injected overtones of cultural partisanship into the decision that detracted from its legitimacy.

But can such consequences be avoided? This is a difficult question, but we believe they can. As Judge Posner suggests, cultural cognition might be an influence that judges, like the rest of us, have no power to escape. But as Judge Posner’s own observations reveal, we can all, judges included, recognize that our reasoning is influenced by our cultural values. By exercising only a modest degree of humility about the partiality of their own judgments on controversial facts (a matter about which Cass Sunstein has just published an important article), judges, as well as legislators and ordinary citizens, can go a long way to negating the tendency of cultural cognition to generate needless conflict and distrust.