Deliberation, Dismissal, and Democracy By David Harrison Schraub A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Sarah Song, Co-Chair Professor Mark Bevir, Co-Chair Professor Joshua Cohen Professor Christopher Kutz Fall 2020 Copyright 2020, David Schraub Abstract Deliberation, Dismissal, and Democracy by David Harrison Schraub Doctor of Philosophy in Political Science University of California, Berkeley Professor Sarah Song, Co-Chair Professor Mark Bevir, Co-Chair One of the earliest steps in civil litigation is the “motion to dismiss.” Dismissal offers the opportunity to preemptively dispose of a given claim that does not present a legally judiciable case or controversy prior to expending time or energy on matters like discovery or a trial. Everyday talk, of course, is not bound by such procedural rules. Yet in normal conversations we often engage in a form of discursive dismissal. When faced with discomforting claims our instinct is not to engage in reasoned deliberation over them. Instead, we frequently brush them aside without considering their merits. By delegitimizing the claim as entirely unworthy of substantive public deliberation, we need not reason over it. Yet despite being a ubiquitous part of everyday conversation, this broader understanding of dismissal has not been independently identified or assessed. How does dismissal fit within a broader ecosystem of deliberation? Focusing on the deliberative form of dismissal yields important insights into how we analyze (or fail to analyze) difficult claims—something that occurs across all deliberative forums. In this way, dismissal is not the sole or even primary province of the courts. But courts do possess one characteristic that makes them worth assessing independently: they are a site where—some of the time—deliberators have to listen. This places them on very different terrain than politicians, pundits, or everyday citizens, all of whom are relatively free to brush aside discomforting claims at their discretion. Courts may play an important role in protecting unpopular groups not because judges are wiser, less prejudiced, or more insulated from democratic pressures, but simply because courts offer a space where—some of the time—arguments must be heard and reasons must be given. 1 Deliberation, Dismissal, and Democracy Table of Contents Acknowledgments................................................................................................... iii Introduction ............................................................................................................. 1 Chapter One: Taking Up Hard Thoughts ................................................................ 7 Hard Thoughts and Political Openness ........................................................................... 9 What Does It Mean To “Take Up” a Claim? ................................................................ 12 Taking Up Discrimination Claims ................................................................................ 14 Motive and Structure in Taking Up the Hard Thoughts ............................................... 19 Chapter Two: Ignorance, Dismissal, and Motivated Cognition ............................. 24 Ignorance....................................................................................................................... 29 Dismissal ....................................................................................................................... 32 (The Limits of) Evaluative Motivated Reasoning ........................................................ 37 The Harms of Dismissal................................................................................................ 39 Chapter Three: Playing with Cards: Discrimination Claims and the Charge of Bad Faith 45 The Card in Play ........................................................................................................... 46 Bad Faith and the Aversive Racist: Commonality versus Condemnation .................... 48 The Bad Faith Charge as a Testimonial Injustice ......................................................... 52 Objections ..................................................................................................................... 55 Chapter Four: Listening, To Mill ............................................................................ 61 Mill’s Duty to Listen ..................................................................................................... 62 The Deliberative and Regulative Dimensions of Free Speech ..................................... 70 Free Speech and Millian Listening on Campus ............................................................ 76 Listening and Power ..................................................................................................... 84 Chapter Five: Not Listening, To Nietzsche (and Others) ....................................... 90 What’s the Problem with Listening?............................................................................. 90 Nietzschean Nationalism .............................................................................................. 93 Cultivating (and Preserving) the Virtues of Deliberation ............................................. 99 Chapter Six: Uncle Toms and As-a-Jews: The Distinctive Political Status of Dissident Minorities ......................................................................................................................... 108 Dissident Minorities Defined ...................................................................................... 110 Distinctive Vulnerability ............................................................................................. 115 Distinctive Power ........................................................................................................ 118 Dissident Minorities and the Anti-Tokenization Principle ......................................... 123 i Chapter Seven: Bypassing Dismissal: Law as a Cognitive Expressway ................ 134 Civil Procedure as (Literal) Rules for Dismissal ........................................................ 135 Judicial Review, Moral Negligence, and the Social Distribution of Knowledge ....... 138 From the Court of Law to the Court of Public Opinion .............................................. 146 Conclusion .............................................................................................................. 152 ii Acknowledgments There are a great many people who deserve thanks for making this dissertation as successful as it was, and all of them deserve more thanks than can be adequately communicated in an acknowledgement section. First and foremost is my wife, Jill, who is the best person in my life. There have been many ups and downs over the past several years, and she has been a rock (albeit a comfortable, soft rock who gives great hugs) throughout all of them. I can scarcely think of any accomplishment in my adult life I can imagine having done without her, and this dissertation assuredly is no exception. My parents and family have always been there for me. My dad is an intellectual role model whose wit, humor, and storytelling are not just entertaining but also taught me much about how to speak and write in a manner that is both engaging and rigorous. My mom is an endless fount of support and encouragement, and has been for as long as I can remember. My brother is grounded in the real world in a way that I can’t be myself, but I certainly admire greatly. And I’m blessed with many wonderful cousins, aunts, uncles, and other relatives across the country who I don’t see nearly enough but have made a tremendous impact on me nonetheless. I was incredibly fortunate to have a tremendous dissertation committee—Sarah Song, Mark Bevir, Josh Cohen, and Chris Kutz—all of whom have played integral roles in supporting me throughout the doctoral process. I hope no offense is taken if I give special thanks to Sarah, who has truly gone far above and beyond as the chair of my committee to become a true mentor, colleague, and friend. To say I am honored to call myself her student surges past understatement. I also want to thank several professors at Berkeley who were not on my committee but were helpful in various ways. I asked Avani Sood to be on my committee, which she agreed to do and then more importantly did not hold it against me when the project turned in a different direction and I ended up replacing her. While she is not formally involved in this project, her influence still can be felt in several of the chapters that are more psychological in focus. Kinch Hoekstra, Dan Lee, and Wendy Brown were likewise generous with their time and feedback on various side projects despite the fact that I was never officially one of “their” students, and I’m grateful for it (Kinch also gets an additional shout-out for chairing my prospectus committee). I also count myself lucky that my colleagues among the Berkeley Political Science graduate students were fun people to hang out with and become friends with. I’ve heard tales of graduate programs where students are rivals with one another or in competition with one another, which sounds like an awful experience I’m glad I did not have to go through. Outside of Berkeley, there were many other influences in my academic life who helped set me on the path I am on