Resisting motivated reasoning

My instinct is to cheer Monday's Israeli High Court ruling, but this changes if I evaluate the decision-making process and not the result

As the Gaza War enters its fourth month, it’s easy to forget the turmoil Israel was in for most of 2023 over the judicial reform/overhaul. Israelis were given a reminder Monday, when the Supreme Court struck down a key piece of judicial legislation. My liberal instinct was to cheer the ruling, but then I realized that the decision provides me an opportunity to explore my own biases and to attempt to evaluate it based on the evaluation process rather than on the result.

I, like anyone else, am a motivated reasoner. According to the research, we consciously or subconsciously let biases affect how we perceive new information, accepting arguments that confirm beliefs and rejecting disconfirmatory arguments. This instinct can lead us to look at a result and then find reasons why it’s right or wrong, depending on whether or not we’re happy or displeased with it.

Another obstacle is that we tend to suffer from the “illusion of explanatory depth” – we think we understand how processes work, but we don’t. So, we tend to judge processes by the result and not the process; if we like the result, we consider the process fair, if not, then we don’t. This type of thinking leads us to conclude that the refs at the basketball game are against us or that we were unfairly given a speeding ticket when others were going faster. In this case, do I really know how the Supreme Court works, how each justice arrived at their answer? No, I have no clue. So, the best I can do is to evaluate the information I can access while acknowledging I am missing information that could lead to a different conclusion.

Once you’re aware of how motivated reasoning works, you notice how ubiquitous it is, especially in politics. When we see it in action, we often refer to it as hypocrisy, making opposite arguments about fairness or justness depending on who is affected. A kinder way of looking at it is recognizing the unconscious biases leading all humans to hold what looks like a double standard to others.

So, let’s see where this experiment takes us…

Quick primer: Israel doesn’t have a constitution, so the Knesset began creating in 1958 “Basic Laws” – ones that it viewed as forming the basis of a constitution. However, unlike with a constitution, no special majority is needed to pass Basic Laws. It’s just a name that has been given a lot of meaning. They include, among others, Basic Laws on the Knesset, the economy, the military, Jerusalem and the judiciary. Significantly, the judiciary started becoming more activist after the passage of the Basic Law on the Judiciary in 1984, and even more so after the passage of the Basic Law on Human Dignity and Liberty in 1992.

The Supreme Court, in its capacity as the High Court, has struck down over 20 laws since 1997, including the so-called Reasonableness Law on Tuesday (more on that in a minute). While judicial review is not explicitly mentioned, the majority have interpreted the existing body of laws to have given them that power in extraordinary circumstances. This interpretation has become a bone of contention, with conservatives criticizing what it sees as an activist court in need of reform. Not surprisingly, most of the laws struck down have been passed by conservative governments.

In the latest case, the Knesset had passed the Reasonableness Law, which is actually an amendment to the Basic Law on the Judiciary. It bars the court from using the judicial standard of reasonableness to overturn government or ministerial decisions.  The High Court ruled 8-7 to nullify it. Esther Hayut, the outgoing court president, wrote that the reasonableness clause doesn't square with democratic principles laid out in the Declaration of Independence. She wrote that the amendment “does the most severe harm possible to the principle of the separation of powers and the principle of the rule of law,” and thereby constitutes “a severe blow to two of the most explicit characteristics of Israel as a democratic state.”

Sounds good to me, but what does the law say? First, I looked at the court’s mandate. According to the law,

“15. (c) The Supreme Court shall also sit as a High Court of Justice. When so sitting it shall deliberate matters, in which it deems it necessary to provide relief for the sake of justice, and are not under the jurisdiction of another court or tribunal.

(d)  Without prejudice to the generalness of the provisions in clause (c), the Supreme Court sitting as High Court of Justice, is authorized –

(2)  To grant orders to state authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law, to act or refrain from acting while lawfully exercising their duties, and if they were unlawfully elected or appointed – to refrain from acting.”

As noted, this law empowers the court to strike down the way government representatives exercise their duties, but not to annul laws. I also don’t find any law requiring the Knesset to uphold principles such as the separation of powers or the rule of law, the principles Hayut wants to uphold. And as far as I know, the Declaration of Independence was an aspirational document meant to bring the State of Israel into existence without having any further legal standing.

In sum, I wish I could agree with Hayut, but I find these arguments weak. Therefore, I can’t support them, as much as I oppose the Reasonableness Law. Rather, my reading of the law indicates that Israel lacks proper guardrails against the passage of anti-liberal legislation. Now, it is possible that someone else would interpret the above clause stating that the High Court can order public office holders “to refrain from acting while lawfully exercising their duties” as empowering the court to strike down the Reasonableness Law. That is the problem of ambiguity. If something isn’t clear, we disambiguate based on our prior experiences, using that same motivated reasoning. But at least for me, I don’t see it. Maybe someone here will change my mind.

Another takeaway for me of the 8-7 ruling is that it reflects the diversity of the court. I thereby conclude that all the criticism of the course being monolithic, one of the arguments for judicial reform/overhaul, has been refuted. But then I remember that I’m a motivated reasoner. The result looks diverse, so I reason that the justices must be heterogenous. But it could be that such is not the case. Maybe someone will change my mind here, too.

As disappointed as I was with what I’ve learned about the ruling, the backlash bothers me more. Justice Minister Yariv Levin accused the justices of “taking into their hands all the authorities that are supposed to be divided between the three branches of government” and “depriving millions of citizens of their voice” – even though only a third of Israelis have expressed support for the law in polls. He also criticized the timing, calling it "contrary to the unity needed in these days for the success of our fighters on the front lines." These arguments exemplify motivated reasoning, but in doing so he also characterizes the ruling in nefarious terms. I have a sneaking suspicion that had the court ruled 8-7 the other way, he would have told the press why it was so important that the court make such a controversial ruling, which reflects the will of the majority, during the war.

Now there is concern of a constitutional crisis if the government ignores the Supreme Court. The majority of Israelis who were polled in August said the government should heed the High Court’s ruling, but a plurality of coalition supporters disagree. This is the danger if those in power allow their motivated reasoning to get the best of them. We can only hope the justice minister’s bluster is just empty threats.

Cover photo: Zeev Zamir