Justice Scalia, writing for an eight-Justice majority, stated, “[t]here is . . . an added wrinkle in this case: existence in the record of a videotape capturing the events in question.” “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment,” Justice Scalia reasoned. “Respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.”
No reasonable jury could disagree with him, wrote Justice Scalia; but unfortunately, Justice Stevens did. Justice Stevens watched the video and found “the tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue.”
It was not unusual for Scalia and Stevens to disagree. However, what made this disagreement unusual was the method Scalia used to support his position. Rather than using words to support his position of “no reasonable juror,” Scalia created a multimedia cyber-opinion, by giving a URL for a digital rendering of the tape that had been uploaded to the Court’s website. “We are happy,” Scalia wrote, “to allow the videotape to speak for itself.”
This same video was shown to a sample of 1350 Americans. Overall, a majority agreed with the Court’s resolution of the key issues, but within the sample there were sharp differences of opinion along cultural, ideological, and other lines.
A fairly substantial majority did interpret the facts the way the Court did. But members of various subcommunities did not. African Americans, low-income workers, and residents of the Northeast, for example, tended to form more pro-plaintiff views of the facts than did the Court. So did individuals who characterized themselves as liberals and Democrats. Individuals with these characteristics tend to share a cultural orientation that prizes egalitarianism and social solidarity. Various highly salient, “symbolic” political issues — from gun control to affirmative action, from the death penalty to environmental protection — feature conflict between persons who share this recognizable cultural profile and those who hold an opposing one that features hierarchical and individualistic values. Persons who subscribed to the former style tended to perceive less danger in driver’s flight, to attribute more responsibility to the police for creating the risk for the public, and to find less justification in the use of deadly force to end the chase. Indeed, these individuals were much more likely to see the police, rather than driver, as the source of the danger posed by the flight and to find the deliberate ramming of the driver’s vehicle unnecessary to avert risk to the public.
The question, therefore, posed by the data is not, as Justice Breyer asked, whether to believe one’s eyes, but rather whose eyes the law should believe when identifiable groups of citizens form competing factual perceptions. So what see becomes a question of what you believe is the correct way of doing something.
So Justice Scalia’s insistence that there was only one “reasonable” view of the facts itself reflected a form of bias — cognitive illiberalism — that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.
See, http://www.linkedin.com/pulse/legitimacy-us-supreme-court-after-scott-v-harris-2007-paul-ksicinski?trk=prof-post and https://www.facebook.com/paulksicinskilaw
SOURCE: Dan M. Kahan, David A. Hoffman, & Donald Braman, “WHOSE EYES ARE YOU GOING TO BELIEVE? SCOTT V. HARRIS AND THE PERILS OF COGNITIVE ILLIBERALISM” 122 Harv. L. Rev. 1 (2009