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125 Harv. L. Rev. F. 1 (2011-2012)

handle is hein.journals/forharoc125 and id is 1 raw text is: I COULDN'T SEE IT UNTIL I BELIEVED IT Some Notes on Motivated Reasoning in Constitutional Adjudication Mark Tushnet* I. INTRODUCTION It is commonplace, though controversial, in the philosophy of sci- ence to note that all observation is theory-laden.1 You can't see some- thing until you believe it - that is, until you have some background account - a theory - about how to understand the messages your neurons are sending to and in your brain. If in science with its com- mitment to intersubjective objectivity, surely even more so in the nor- matively freighted field of law in a morally pluralistic society. This Comment suggests that Professor Dan Kahan's provocative Foreword2 might benefit from reflection on the commitment to science it exhibits. Motivated reasoning may be at work in the Foreword as well - not reasoning from cultural premises to legal conclusions, but reasoning from a background theory of science as a good explanans for law in general to conclusions about the structure of legal reasoning as displayed in Supreme Court opinions. A related form of reflection suggests that Kahan's route out of the problems he diagnoses might be unavailable in practice. To put it somewhat more sharply than I will as I develop the argument, his target audience - the Justices of the Supreme Court - might see his proposal for a new style of opinion- writing as itself motivated by cultural predispositions, packaged as sci- ence for merely strategic reasons. One response might be to shift the target audience from today's Justices to tomorrow's, to those who will be selected over the next decades. Then, though, we would need some institutional and political account of how the selection processes, by Presidents and Senates, that have produced the Justices we now have, might be changed to produce the kind of Justice who would find Kahan's prescriptions appealing - and so produce a different kind of Justice. I think there is a rather deep tension between the form and sub- stance of Kahan's argument. In form it presents itself as an argument William Nelson Cromwell Professor of Law, Harvard Law School. 1 The standard citation is NORWOOD RuSSELL HANSON, PATTERNS OF DISCOVERY (1958). 2 Dan M. Kahan, The Supreme Court 20o Term - Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV L. REV I (2011). I

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