Are Judges Conformists Too?,
Conclusion: Why Dissent?

excerpted from the book

Why Societies Need Dissent

by Cass R. Sunstein

Harvard University Press, 2003, paper

p184
Many people think that in the United States, there is no fundamental difference between judges appointed by presidents of different political parties. Such people emphasize that once on the bench, judges frequently surprise those who nominated them. This view is misleading and fundamentally wrong. To be sure, some judicial appointees do disappoint the presidents who nominated them. President Dwight Eisenhower was not pleased with the liberal votes of Chief Justice Earl Warren and Justice William Brennan; Justice Harry Blackmun ended up being far more liberal than President Nixon expected and wanted. But we should not be fooled into thinking that these examples are typical. Judges appointed by Republican presidents are quite different from judges appointed by Democratic presidents.

But it is difficult to evaluate the voting patterns I have described without taking a stand on the merits-without knowing what we want judges to do. Suppose that three Republican judges are especially likely to strike down affirmative action programs and that three Democratic judges are especially likely to uphold those programs. At first glance, one or the other is troubling only if we know whether we approve of one or the other set of results. In the punitive damage study discussed in Chapter 6, the movement toward increased awards might be something to celebrate, not to deplore. We would celebrate that movement if we conclude that the median of predeliberation awards is too low and that the increase produced by group discussion ensures more sensible awards. Perhaps a view about what judges should be doing is the only possible basis for evaluation. If so, those who prefer judges of a particular party should seek judges of that party, and group influences are essentially beside the point.

But I think that this conclusion is too strong. In some cases, the law, properly approached, really does argue strongly for one or another view. The existence of diversity on a three-judge panel is likely to bring that fact to light and to move the panel's decision in the direction of what the law actually requires. The existence of politically diverse judges, and of a potential dissenter-whistleblower, increases the chance that the law will be followed. The Chevron study strongly supports this point. Recall that under Chevron, courts are supposed to uphold agency interpretations of the law so long as those interpretations do not violate clear congressional instructions and are reasonable. The presence of a potential dissenter-in the form of a judge appointed by a president from another political party-creates a possible whistleblower who can reduce the likelihood of what is, under Chevron, an incorrect or lawless decision. With an appreciation of the nature of group influences, we can see the wisdom in an old idea: A decision is more likely to be right, and less likely to be political in a pejorative sense, if it is supported by judges with different predilections.

There is an additional point. Suppose that in many areas, it is not clear in advance whether the appointees of Democratic or Republican presidents are correct. Suppose that we are genuinely uncertain. If so, we should want the legal system to have both, simply on the ground that through that route more (reasonable) opinions are likely to be heard. And if we are genuinely uncertain about what judges should do, we have reason to favor a mix of views merely by virtue of its moderating effect. In the face of uncertainty, sensible people choose between the poles.

A final problem, briefly mentioned above, has to do with equal justice under law. We have seen that in many domains, an all-Republican panel is likely to decide differently from an all-Democratic panel. None of the relevant judges is going to ignore the law. But when heavily the law is unclear, an all-Republican panel will lean heavily to the right, and an all-Democratic panel will lean heavily to the left. The difficulty is that the prospects of plaintiffs and defendants will vary accordingly. Similarly situated people will be treated quite differently, simply because of the political affiliation of the judges on the particular panel. As a result, the law is likely to have real inconsistency, in a way that does violence to the ideal of the rule of law. Recall that judges do not merely cast votes; they also write opinions. An opinion written by a judge on an all-Republican panel is likely to be very different from an opinion written, in the same basic case, by a judge on an all-Democratic panel. Unfairness is an inevitable result.

p193
Judges do not always follow the election returns, and in any case public opinion often allows courts room to maneuver. But when constitutional law changes, it is usually because of the influence of new social understandings. In this sense, judges are conformists, too.

p209
John Stuart Mill in On Liberty

"Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflective persons perceived that when society is itself the tyrant-society collectively over the separate individuals who compose it-its means of tyrannising are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates... Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tendency of society to impose, by means other than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them."

p210
When groups go to extremes, the reason often lies in the influences that people place on one another. This is true for feuding families, religious organizations, sports fans, and investment clubs; it is true for revolutionaries and terrorists; it is true for listservs, gangs, and cults; it is true for political parties, legislatures, courts, regulatory agencies, and even nations. When group polarization is involved, people tend to discuss information that everyone already has and tend not to share information held by only one or a few group members. This is a serious loss. If groups go to extremes, they should do so for good reasons, not simply because people's preexisting tendencies are reinforced and amplified as a result of internal discussions.

Of course, conformity often makes a great deal of sense. If we don't have a lot of independent information, we might do best if we do what other people do. The problem with conformity is that it deprives society of information that it needs. I have emphasized the same problem with social cascades, in which people follow others and fail to disclose what they actually know. As a result of cascades, both individuals and groups can blunder badly. When grave injustice exists, it often persists only because most people have a false impression of what other people think. They silence themselves, thinking that others must be right or simply wanting to avoid social disapproval. The tragedy is that blunders and injustice could be avoided if only people would speak out. Dictators and tyrants, large and small, are usually naked emperors.

The general lesson is clear. Organizations and nations are far more likely to prosper if they welcome dissent and promote openness. Well-functioning societies benefit from a wide range of views; their citizens do not live in gated communities or echo chambers. The fantastic economic success of the United States owes everything to a culture of open information. Indeed, economic markets themselves embody norms of openness, ensuring success for those who innovate (and innovation is itself a form of dissent). Free speech and open dissent are the siblings of free markets. To the extent that the United States has done well in peace as well as war, it owes its greatest debt to principles of free expression. But democracies, no less than other systems, frequently create the majority tyranny that Mill deplored, simply because social pressures impose burdens on dissenters.

p211

Many of the Constitution's rights and institutions reduce the risk of harmful consequences from conformity, cascades, and group polarization. Freedom of speech is the simplest example, providing a check on bad cascades and unjustified extremism. At a minimum, a system of free expression forbids government from restricting any point of view ... the importance of ensuring that people are exposed to a range of positions and do not self-select into narrow communities of their own devising. By creating public forums open to all, a system of free speech shows its affirmative side. In a well-functioning democracy, the right to free speech certainly protects dissenters, but it cannot do what it is supposed to do unless listeners are willing to give dissenters a respectful hearing.

p212
An understanding of social influences also shows why colleges and universities should attempt to ensure heterogeneity along many dimensions. Real learning is unlikely to occur in a classroom in which everyone agrees with everyone else. Like a good legislature, a good education depends on some "jarring of parties." In some settings, racial diversity is likely to improve discussion simply by increasing the range of experiences and perspectives. An appreciation of the risks of conformity and polarization helps to explain why institutions of higher education should promote diversity of many different kinds.

There is a larger theme in these particular claims. It is usual to think that those who conform are serving the general interest and that dissenters are antisocial, even selfish. In a way this is true. Sometimes conformists strengthen social bonds, whereas dissenters ( endanger those bonds or at least introduce a degree of tension. But in an important respect, the usual thought has things backwards. Much of the time, it is in the individual's interest to follow the crowd, but in the social interest for the individual to say and do what he thinks best. Well-functioning societies take steps to discourage conformity and to promote dissent. They do this partly to protect the rights of dissenters, but mostly to protect interests of their own.

Why Societies Need Dissent

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