Of Fallacies, Biases, and Justices: The Terms of Our Time

It’s political season again in the U.S., and to make an understatement, it’s been a doozy. Speaking of statements (political or otherwise), I think now is a good time to reconsider the logical fallacies we all learned to avoid during our entry-level English composition classes.

No, I will not lecture you like your high-school English teacher would. (And yes, I was one once.) But I would like to lecture Justice Alito. Not only about fallacies but also about biases. More on that later.

Mistakes and Shortcuts

In case you don’t remember, logical fallacies are arguments that make a mistake in logic or fail to “satisfy the criteria of a cogent argument” (Standford Encyclopedia of Philosophy). Mistakes in deductive logic, the “form” of logic praised by Aristotle, are formal fallacies. Failures to make or prove a reasonable argument, whether through deductive or inductive reasoning, are informal fallacies. That might be a distinction without a difference, but historians care. (Please remember I was an English major for a reason.)

The Standford Encyclopedia of Philosophy article that I quote above also discusses biases. Like the definition of logical fallacy, the definition of bias is a bit squirmy. Biases are “inclinations to see things one way rather than another.” They are “inferences” or “systemic errors that invariably distort the subject’s reasoning and judgment.”

I also like the definition of bias from David Dylan Thomas’ important work Design for Cognitive Bias: cognitive biases are the “errors” we make when our minds take “shortcuts” they shouldn’t. Some of our cognitive biases are harmless, even funny, he says; others are not.

In writing and speech-making, biases can influence someone to use logical fallacies—either unconsciously or with conscious motivation—to make a point. Please put that on a sticky note on your forehead, Justice Alito.

Refresher on the Mistakes

Modern textbooks, starting in the 1960s, have typically described 10 to 18 logical fallacies. The complete list of 18 comes from Irving Copi’s 1961 Introduction to Logic.

Many fallacies, like the straw man argument, have a familiar name but are more difficult to describe. Basically, you build a “straw man” out of a set of oversimplified or distorted interpretations of your opponent’s views and then attack the straw man rather than your opponent’s positions. An example is “He says that all the city’s employees are taking too much time off. He thinks they don’t work hard enough!” But in fact, the person in question said that as mayor, he wants to re-examine the rules for paid leave.

The list below defines the 10 typical logical fallacies I’ve seen in online content. Included are example arguments and refutations. Most of these would fall into the informal fallacies category. In other words, they represent places where folks fail to make a reasonable argument. (Note that the examples are made up; they are not real.)

The catalog of logical fallacies includes several more: parts to whole (and its reverse), either/or (which limits options to two when more exist), non sequitur, slippery slope, and so on. (Hopefully, I’ve refreshed your memory of your Writing 101 class.)

Justice Alito’s WSJ Mistake

Everyone is guilty from time to time of acting on those mental shortcuts and subsequently shortchanging their audience of a well-reasoned argument. We all make mistakes. However, when someone who is formally trained in legal argument and sits in judgment of others puts a set of mental shortcuts on public display, my English teacher hackles spike. I’m looking at you, Justice Alito.

Leaving aside the questionable judgment of a Supreme Court Justice writing an opinion piece in the first place, Justice Alito’s op-ed in the June 20, 2023, edition of the Wall Street Journal not only squirms it fails to make a “cogent argument.”

To refresh your memory, Alito wrote his WSJ piece in response to a ProPublica article that claimed he should have recused himself from cases that involved an acquaintance, Paul Singer, and further that he failed to disclose (in a financial disclosure report) personal benefits he received in 2008 from a trip to Alaska, which included Mr. Singer (as Alito refers to him).

Regarding the failure to recuse, Alito argues that his relationship with Singer didn’t meet the standard of the “appearance of impropriety,” under which a “reasonable and unbiased person” would “doubt that the Justice could fairly discharge his or her duties.” Then in the article’s first section, he seems to place himself in the position of that “reasonable and unbiased” person and judges himself innocent based on four facts:

1. He talked with Singer only a handful of times (apparently, he can’t recall how many).
2. However, he can assert that none of those conversations were about Singer’s businesses.
3. Singer twice introduced him to a conference audience, but so did lots of other people.
4. The seat on the private plane to Alaska that Singer gifted him was otherwise unoccupied.

The weaving in and out of specificity that crosses the first three claims in this argument made me laugh. His argument starts with the convenient omission of some details (how many times he talked to Singer) while asserting a hasty conclusion (but we definitely didn’t talk about his businesses), leaving us without a clear connection between the two or proof of the conclusion. The very next argument provides details (two introductions only!) that were missing from the first argument, but it then asserts that “everyone does it” and “it happens all the time.” Through that ad populum argument, we apparently are supposed to conclude that the details (the two introductions) don’t matter.

But the killer is the last argument. Not only is the argument dismissive of a detail (a seat on a private plane), but it also makes that dismissal out of bias. The first hidden assumption in the description of the unoccupied seat—on a private plane traveling over 1000 miles—is that the seat was worthless. The second is that the seat could have been occupied by anyone. Neither is true in reality.

The conclusion that he couldn’t be influenced by the gift of that seat is based on its presumed worthlessness. But, of course, any reasonable person would know that such a seat was worth hundreds if not thousands of dollars—and it should have been disclosed. The bias in the argument—the shortcut in thinking—favors the moneyed acquaintance. Singer, being a person of means (with a private plane!), might have thought the unoccupied seat was worthless. (Then again, he might not have if he could have categorized the empty seat as a monetary loss.) But most of us reasonable people would not have seen it as worthless—or easily occupied by just anyone.

But Wait, There’s More…

Alito’s article goes on to two more arguments, through which it asserts, first, that Singer’s relationship to SCOTUS cases was not obvious and, second, that the plane ride was not only okay but even beneficial to the American people.

The first set of follow-on arguments attempts to convince us that Justice Alito had “no good reason to be aware that Mr. Singer had an interest” in cases before the high court. The logic goes like this:

1. I’m a busy guy.
2. Because I’m busy, I don’t spend much time looking at certain types of petitions (appeals of lower-court decisions). Most of them don’t merit a review by a guy like me anyway.
3. Because I’m busy, I rely on my staff to tell me about potential conflicts of interest.
4. Even if we weren’t busy, we wouldn’t have found the connection because of corporate privacy rules.

Well, okay, so someone or something was at fault here for something, according to this argument, but it sure wasn’t Justice Alito. That straw-man-like something or someone prevented the Justice from doing a thorough job and, therefore, he can’t be held accountable. So the busy, busy guy who helps decide what rules are fair in this country is shielded from even the appearance of impropriety because of bureaucracy. (Well, OK, I see the bits of straw in my own hair, but really?)

The second set of follow-on arguments returns to the matter of the plane ride to Alaska and related lodging there:

1. “Hospitality” from a friend that includes transportation (the plane ride) didn’t have to be disclosed back then. (Transportation is considered a “facility,” according to cited sources and is, therefore, covered under the “hospitality” rule.)
2. The plane ride was a purely social event.
3. I did it only once.
4. The same logic applies to the owner of the lodge in Alaska.
5. And that guy, to my knowledge, didn’t have business before SCOTUS.
6. Besides, the version of the lodge in the ProPublica photo is beautiful because the lodge has been recently renovated.
7. If there was wine served (and I don’t recall), I’m certain it didn’t cost $1000.
8. The plane seat was a last-minute invitation after I had already been invited on the lodge-related trip.
9. Oh, and that seat on the private plane? It saved the taxpayers from having to foot the bill for security to accompany me on a commercial flight.

Guess that trip really bothered him because this logic throws a couple of red herrings into a mixture of hidden assumptions. Ironically, the same Singer guy with whom the Justice talked non-business stuff a couple of times is now, in this paragraph, engaging the Justice in “social events.” Nothing to worry about there. More importantly, and just to be clear, in a court of law, even if you commit a crime only once, you are still guilty. “I did it only once” has never been a legal defense of anything. Neither has ignorance of the law nor has, in many situations, ignorance of a co-conspirator’s actions. But heck, that photo was a real whopper, so why don’t you focus on that (red herring) instead of the Justice’s actions? (Note that I am refraining from commenting on that ninth—and silliest—piece of logic.)

The Meta in the WSJ Mistake

Does Alito’s overall argument convince us that his relationship with Singer (and any gifts derived from that relationship) did not have the taint of impropriety and, therefore, did not rise to the level of requiring recusal? It’s up to you to decide.

However, the meta messages here trouble me. First, the cascade of arguments suggests that we should pick and choose which ones we want to apply to the situation. The meta logic seems to be: “If you don’t like that argument, here’s another.” But taken as a whole, fully built argument, I don’t find the article convincing. Nor do the individual arguments form a particularly flattering picture of this SCOTUS justice or of SCOTUS as a whole. Begging the question here, but does this peek at a Justice’s work habits instill you with heaps of confidence in SCOTUS decisions?

Second, the Justice’s article obscures some of its more spurious arguments by citing many legal precedents and legislative documents. Those myriad annotations send additional meta messages:

• I am a legal scholar (and thus I know more than most about legal stuff)
• I have researched the topic lots (so you should appreciate that I’ve done my homework)

I give him—or perhaps his law clerks—credit for doing the homework. But the weird mix of legalese and simplistic arguments in this public-facing article makes me queasy. The article reads (to me) partially like a 10th-grade composition assignment and partially like a legal journal article. The pieces don’t particularly fit together well and are less convincing together than perhaps they would have been separately.

Moreover, several of the arguments lack supporting data (other than the legalese). How, for instance, are we to be convinced that wine at this once-less-fancy lodge didn’t cost $1000 if we have nothing but a hasty assertion and a begged question to go on? Most of us were taught that good argumentation includes solid evidence. A glance at an online curriculum from Inquire/Thoughtful Learning suggests that element was included in instruction about “Building Strong Arguments” as recently as 10 years ago. So why doesn’t this article from a SCOTUS Justice contain much evidence?

The final meta message I see in this article lies in the attitude that seeps through the choice of arguments and lack of solid evidence. That attitude seems to say, “You unwashed masses out there, you can’t possibly refute (or even decode) the arguments I’ve put together here; you’re simply not as smart as I am.” OK, recognizing that I still have some straw in my hair here, I would ask the author(s) of this article to please remember that rhetorical experts (who are, indeed, smarter than I am) read, too. And some of them might actually read the Wall Street Journal.

(Title image from Mohamed Hassan for Pixabay.)