Patrick McKendry

This week we head in to the July 4th holiday and out of the U.S. Supreme Court’s most recent session, one which provided - yet again - landmark conservative shifts to the American legal system. One year after the Dobbs decision turned an about-face on precedent to overturn Roe vs Wade, the Court again reversed precedent to strike down affirmative action programs at Harvard. Additional decisions from this week reduced previously upheld protections for civil rights of members of the LQBTQ+ community and halted President Biden’s plan to provide forgiveness on $400 billion of student loans.¹

The end of the session creates a moment for Chief Justice John Roberts to step away and regroup on what has been another eventful term. Following an historically aggressive conservative bench in the prior term, Roberts has been actively working to regain control of his court to re-establish his vision of incremental decision-making. While effectively moving many of his conservative counterparts to a more moderate stance across most decisions, Roberts also chose to pen many of the high profile majority opinions from this session in order to set jurisprudence that matches his voice and vision.² However, realigning the in-session behavior of justices is only part of Roberts’s work. The Supreme Court began the term facing all-time low approval, as Pew Research polling shows more Americans hold an unfavorable opinion of the high court than a favorable one for the first time since measurement began.³ In the time since, reports of undisclosed and lavish trips gifted to staunch conservatives Justice Clarence Thomas and Justice Samuel Alito by billionaire Republican donors has lead to roars from Congress for ethics reforms and transparency for the Court.¹

Here, I will not dive into the consequences of recent decisions, though I would be remiss to not state that recent rulings are disappointing and move us backwards. We must recognize the deserved dignity and human rights owed to everyone regardless of racial, sexual, spiritual, or political orientation, earnestly strive to be better in providing those rights and opportunities equitably, and recognize that - to reference Justice Jackson - deeming bias irrelevant in the law does not make it so in life. Yet, we will critique and review the current organizational systems of the Supreme Court and highlight its two biggest unresolved problems. We will look at the option of recusal and why bias is not always so easy to spot and control. And we will explore the shadow docket and the increased potential for ethical shortcoming from unobserved behavior.

‍

$415 Is Not Particularly Very Much

There are a lot of things you could buy with $415. It is about the price of a GoPro HERO11 camera.⁴ You could get one of RYOBI’s mid-range electric lawnmowers.⁵ Roughly, this is enough for book a round-trip flight from New York to San Francisco, if you plan about a month out.⁶ $415 is, however, less than the $1,000-per-day fishing lodge ticket price where Paul Singer hosted Justice Samuel Alito in 2008 and less than the estimated $100,000 one-way private jet ticket that flew him there.⁷ $415 is also less than the estimated $500,000 to charter a private jet to Indonesia and a 162-foot yacht to island hop around the country, an itinerary describing one of many trips gifted to Justice Clarence Thomas by Republican donor Harlan Crow over many years.⁸

For context, $415 is the federally regulated benchmark for thousands of government officials at which they are required to file financial disclosures for gifts received. Or rather, it was - the limit was increased in 2023 to $480.⁹ The rich history of gifts offered to Alito and Thomas both came to light this spring from investigative reporting by ProPublica and not because of either justice’s decision to disclose the information. It may not appear immediately clear if the non-disclosure is technically a violation as the federal disclosure law has a hospitality exemption not requiring disclosure for hosting on an individual’s property, as was notably the case for many of the trips gifted to Justice Thomas. But, per NPR, the law clearly requires disclosure for gifts of flights on private jets.⁹ Clearly, this a problem. And it gets worse.

Following the 2008 fishing trip gifted to Justice Alito, his host for the trip - Paul Singer - had 10 cases appear in front of the Supreme Court related to his hedge fund. One such case, when ruled in his favor, awarded Singer’s fund $2.4 billion.⁹ Harlan Crow has had no cases in front of the Supreme Court but has given a half a million dollars to a Tea Party group founded by Justice Thomas’s wife that provides her $120,000 salary.⁹ Ethics experts note that given his involvement with Crow, Thomas “seems to have completely disregarded his higher ethical obligations.”⁹

Unlike the U.S. Congress, which prohibits members from accepting gifts of greater than $50 value and requires an ethics committee approval before taking many trips, the Supreme Court is largely left to police itself in regards to ethics.⁸ One of the primary means judges have to do this is recusal, or the decision to withdraw from ruling on a case given a possible conflict of interest or lack of impartiality. Notably, Alito chose to not recuse himself from any cases involving Paul Singer, a decision which experts note has no close parallel in history.⁷ Similarly, Thomas chose to not recuse himself on cases that touched on the involvement of his wife around efforts to overturn the results of the 2020 election.⁸ In both cases, each individual apparently believed that they could maintain the ability to decide in a fair and impartial manner.

That is the problem. Originally defined by Emily Pronin in 2002, the bias blind spot describes how most people are more likely to ascribe the likelihood of acting in a biased way towards others and less likely to see themselves as being subject to bias.¹⁰ Said differently, most of us believe that we are capable of acting without bias. Pronin’s research went even further to show that respondents would even insist on the accuracy of their self-assessments even after reading descriptions around how bias could cause their self-assessments to be inaccurate.¹⁰ That is a powerful clarification. Not only do we think we can act without bias, but we also fail to see it in our behaviors when it is highlighted for us. Later studies have replicated the effects of the bias blind spot. Further, these subsequent studies have shown that people with strong free will beliefs are even more likely to see themselves as free from bias.¹¹ In other words, those who most believe they can act in an impartial and unbiased way actually risk a higher probability of acting in a biased way.

The dangers here as it relates to judicial recusal in the Supreme Court are clear. Each justice is the sole decider to determine whether or not they have the ability to decide impartially for any given case. However, each judge is, for themselves, the worst objective evaluator of their ability to think beyond bias. Demonstrating this point requires us to look no further than the clear improper self-evaluation shown by Justices Alito and Thomas. Our improved understanding of human cognition is fairly recent and is rapidly building in recent decades. Judicial processes should keep pace, particularly given recent misbehavior. The solutions do not need to be complex. I’m no expert, but a simple adjustment would be to vote on the potential recusal of every justice before hearing a case with a supermajority favoring recusal leading to the individual being removed from the case ruling decision.

For ourselves, the bias also warrants notice. As team managers, there are many decisions which we have the chance to make either individually or with group support. When we are close to the problem or have a vested interest, it is important to get additional perspectives to give ourselves the chance to see more clearly. For example, when going through reviews or having promotion conversations, 360 feedback should be a requirement to give managers a broader sense and help uncover potential biases both favoring their direct reports. Similarly, when leaders are deciding a go-forward strategy for our team, it is good to review the proposal with peer leaders outside of the immediate team and other managers inside the immediate team. Asking questions like “What am I not thinking about?” or “What about this seems too optimistic?” can highlight where we might be showing favoritism towards our own ideas or working styles rather than the realities of the situation. Bias is everywhere and being aware of it is not a sufficient tactic to prevent it. Use others to keep yourself in check.

‍

Stealing Candy, Bikes, and Freedoms

Last year’s overturn of Roe vs Wade, shocked everyone. Except for Court analysts. According to the Brennan Center, many experts saw the change to precedent coming for months after the Supreme Court had earlier refused to block a Texas law preventing abortion after six weeks. The Court’s opinion on Whole Women’s Health vs Jackson was issued unsigned, with only a paragraph of explanation, and after no oral arguments as part of the “shadow docket”.¹²

Theoretically, the shadow docket should not be interesting. These cases consist of those outside of the 60-70 cases on the “merits docket” - where case briefs and open oral arguments are heard - and historically are focused on procedural issues like scheduling and injunction.¹² The most critical example of such a procedural case would be the Supreme Court’s decision of whether to temporarily suspend the decision from a lower court until the case is able to be heard by the Supreme Court. Whole Women’s Health vs Jackson is just such an example. The high court was asked if the Texas abortion ban should be stopped until the Supreme Court held oral arguments on a similar case. While technically a procedural question of scheduling whether the law should be temporarily suspended or immediately enacted, the context of the decision essentially set jurisprudence by letting the law take effect in a way that ran counter to the Roe decision. Structurally, significant judicial opinion being provided through the shadow docket is difficult because the decisions offer little explanation for the lower courts on how to interpret future cases. Further, it is unclear how to interpret conflicts between decisions ruled on from the shadow docket versus decisions made through the merits docket.

However, there is another sinister side to the shadow docket. To demonstrate, let’s talk about Halloween candy. In a 1976 study, a team of psychologists put themselves up in 18-different houses in a single neighborhood. As 1,300 children trick-or-treated around the block, the researcher at each house would open the door, talk with the kids, ask them to take 1 piece of candy each, and then close the door and leave.¹³ There was a twist, as half of the houses placed a mirror out with the bowl so the kids could see themselves while picking out candy. The result, when children saw themselves in the mirror they lost their sense of anonymity and were significantly less likely to take additional pieces of candy then when there was no mirror to show their reflection.¹⁴ We could reasonably assume that the mental tricks played on children over candy would not hold sway over adults. But then, we have not yet discussed a UK-based study where university psychologists placed signs at 3-campus bike racks that displayed a set of eyes and read “Cycle Thieves - We Are Watching You”. After the intervention, bike theft dropped at the locations by 62%. The strength of the effect was further accentuated by the rise of bike theft in other locations, increasing 65% and suggesting that the presence of the signs had a hyper-local effect on behavior.¹⁵

Returning to the shadow docket, one of the notable characteristics of these rulings is that they are not signed by the justice who pens the decision. Rather, each is given to the public anonymously. This is poor process design because, as the research shows, anonymity increases the likelihood of misbehavior. A good argument would suggest that the shadow docket is not truly anonymous because we all know who is on the Supreme Court and, as such, we should consistently see each justice act as though every decision were being watched. The U.K. bike study pushes back on this argument, showing that environment-based reminders - like a posted sign or a signed decision - have local effects that do not drive behavior across situations. Granted, it is unreasonable to suspect that a signed decision on the Women’s Whole Health vs Jackson shadow docket case would have led to the upholding of the precedent of Roe vs Wade. But, the potential benefits of such a small change may surprise us.

Thinking again about what this means for us, we should all be encouraged to live our work lives publicly. By this I mean, managers should loop their teams into decision-making, teams should openly discuss problem statements and growth hypotheses, disagreements between teams should be discussed openly in a collaborative and psychologically safe way, and concerns and risks should be shared for all to hear. I generally prefer this operating principle because it creates a near constant opportunity for learning and development for those on our team and helps ensure that everyone consistently has the most up to date context. Here, we find yet another benefit. While your team is likely not stealing, there are frequent temptations at work to cut corners - end that test that is not quite significant but is falling on our way, remove that data point that contradicts the story we want to highlight, shortcut an approval process because we started late but still want to launch a campaign on time…sound familiar? Often, when we listen to the devil on our shoulder it is because we do not have someone watching over our other one

‍

Conclusion

For worse and for better, bias is an intrinsic part of the human condition. In its most recent rulings the Supreme Court stated its opinion that the key to fighting bias is in removing it from conversation and consideration. Ironically, that same tact of turning a blind eye is precisely what has driven the Roberts-led court into its current legitimacy crisis. The research suggests that the opposite approach is actually best. Not only is considering bias an important step, but awareness alone is not enough to limit its impact on our decision-making. We need structure. Whether that comes from gathering feedback that highlights our bias blind spots or recognizing that interpersonal dynamics can help encourage us to not fall short of our ethical standards, intentional design that minimizes the negative influences of bias can offer great outcomes.

‍

‍References

‍

The U.S. Supreme Court - How Structures Can Reduce Bias