Scott Hershovitz: Adventures in Philosophy with My Kids

Ken Harbaugh:

Hi everyone, it’s Ken. Before we start, I want to share some exciting news: We’ve paired with Meidas Touch, so you can now watch these interviews on YouTube. Just search for the Meidas Touch YouTube channel, or click the link in the show description. Thanks, and enjoy the episode.

Scott Hershovitz:

One night I was cooking dinner and he said, "Is God real?" And I said, "Well, what do you think, buddy?" He said, "I think that for real God is pretend and for pretend, God is real." I was just stunned by that. It was such a complicated thought. I said, "What do you mean?" He said, "I think that God isn't real, but when we pretend, he is."

Ken Harbaugh:

I'm Ken Harbaugh, and this is Burn the Boats, a podcast about big decisions.

My guest today is Scott Hershovitz, a professor of law and philosophy at the University of Michigan and former law clerk to Ruth Bader Ginsburg. Scott's new book, Nasty, Brutish, and Short is a, I'm quoting here, "romp through contemporary philosophy led by his two young sons as they discuss ancient arguments and ask their own questions." Scott, welcome to the show.

Scott Hershovitz:

Thanks so much for having me. Thrilled to be here.

Ken Harbaugh:

I took philosophy in college, and it never stuck for me because I couldn't really apply it to my daily life. You make an enormous effort, not just in this book, but in your other work, to make philosophy real and practical. As an academic, that's not required. So where does that impulse come from?

Scott Hershovitz:

I think it partly comes from the fact that I teach philosophy to lawyers. I'm on the faculty in the law school and the philosophy department here. But my primary teaching home is in the law school. So, the philosophical questions that interest me are the ones that arise in courtrooms. ‘What does it mean to be responsible for an injury that you inflicted on somebody else?’ ‘How should we respond to the wrongs that we commit?’ Those are the questions that I ask in my own writing. Then I love talking to my law students, most of whom are not philosophers, maybe never encountered a philosophy, maybe encountered it and had the reaction you did, and using these stories of real people's lives to help these philosophical questions come alive.

Ken Harbaugh:

Well, I will say that as unattractive as the study of philosophy was to me in college, it clicked at Yale Law School. I was there right after you were, and we didn't overlap, but it was learning philosophy and its relation to the law that changed something for me. I'm going to ask you about the trolley car experiment, and if you are just sick to death of sharing that with a lay audience, let me know and I'll just put a link to it in the show notes. But if that's something you don't mind relating again because it was my introduction to philosophy applied in the real world and how it can change how we think about decisions. Boil that down to its essence for us.

Scott Hershovitz:

Yeah. Well, I actually love to talk about the trolley problem. Increasingly, people have heard of it because it's broken through into pop culture. It featured in an episode of The Good Place. But I think a lot of people actually, they don't get quite what the trolley problem is or what the problem part of it is. So, it takes two stories to get the trolley problem going. The first story lots of people know now. There's an out of control trolley. It's heading down the track. It's going to run over five workers. But you just happen to be standing near a switch, and if you pull that switch, then you can divert the trolley onto a different track. That's good news. The bad news is there's one worker on that piece of track. And then you ask people, "What would you do if you found yourself the situation?" Let the trolley keep going and kill the five or pull the switch and kill the one? Let's pause there. What would you say, Ken?

Ken Harbaugh:

I would pull the switch.

Scott Hershovitz:

Yeah. And most people say they would pull the switch. Not everyone. But most people say they'd pull the switch in that circumstance. So now you want to compare that case to a different one. The standard comparison case runs like this: same start. There's an out of control trolley. It's heading down a track. It's going to hit five workers. But this time you're not standing near a switch. You're standing on top of a bridge. You're looking over the scene and right next to you, there's a very heavy man who's leaning up against the rail on this bridge. You realize if I push this man over the bridge, he'll land on the track and his heft will stop the trolley and that will save the other five workers, but it will kill him. And then the question again is what would you do in this circumstance?

Ken Harbaugh:

Yeah. Probably not in this circumstance.

Scott Hershovitz:

Probably not. Yeah. Again, pretty overwhelmingly, people say they wouldn't push the heavy man over the bridge. It's the juxtaposition to the answers that we're inclined to give in those cases that is the trolley problem. So the math seems the same. The question is, would you kill one person to save the lives of five people? It seems like even though the math is the same across these cases, we give different answers. Actually, I'll give you one more case just to make it feel maybe even more real.

The original comparison case was something philosophers called transplant. Say you work in an emergency room and it's a rough night here. You've got five patients. They're all on the verge of death. They need organ transplants. They all need different organs. And then someone relatively healthy comes into the emergency room. Maybe they've broken their pinky finger and you think to yourself, "Wow. If I kill this person, then I could harvest their organs very quickly and save the other five people that are here," and nearly no one, never met anyone who says that they would kill the person with the broken finger. So the trolley problem is an effort to figure out what accounts for our different decisions in these cases. Why would we sometimes be willing to kill one person to save others? And other times not?

Ken Harbaugh:

You focus a lot of your thinking on the dignity of human beings. Where the trolley problem got really interesting for me in law school was when the question was posed: Well, what if the five workers were convicted death row inmates? Or what if the individual on the other track was an infant? Or something like that. That comparison of relative human dignity really forces some soul searching. Do you get into that in your classes as well?

Scott Hershovitz:

I've taught a class on the trolley problem. I've taught a version at the law school and actually taught a version that met in the evenings at my house, so my kids could participate. They took their train sets and they set up the trolley problem, the original version. Then as people would suggest different iterations, they would adjust the train set. Actually, part of what was amusing is the action figures they were using. Some of them were stormtroopers, which I feel like raises, stormtroopers from Star Wars, raises your version of one of these questions. Maybe the people on this track aren't so great. The people on that track are innocent, like that infant.

The trolley problem can become super arcane very quickly because you can spin out so many different versions of the story and you can have different iterations of the people that are on the track. A lot of people think that this is kind of pointless, and they find it frustrating for that reason. I don't think it's pointless at all, actually. There's some hint that future versions of autonomous cars may have to make decisions like this. I don't think we're anywhere near that technology yet, but they may have to decide are they turning onto the sidewalk where there's a baby in a stroller or are they hitting the three grownups that are in the crosswalk? So some people are interested in the trolley problem for that reason. They think there's a kind of practical set of questions coming. Autonomous vehicles are going to have to make these choices.

I'm actually interested in it for a different reason. The question, when is it okay to kill some people to save others is actually a question that's pervasive in our moral lives. It's, in some kinds of instances, a question that arises in the context of abortion. Actually, the very first appearance of the trolley problem in philosophy was in an article by a British philosopher named Phillipa Foot who was thinking about abortion. Some abortions involve the decision to kill a fetus to save the life of the mother. But also trolley problem-like cases commonly arise in war. So a famous example runs this:

There was a period of time during World War II where the Germans were attempting to bomb Central London, but their targeting was off. They were bombing South London and this was protecting some of the buildings that were central to the war effort, like the buildings where the leadership of the military were doing its work. They made a deliberate decision to keep their radio chatter down to pretend that they were taking fire in Central London, even though the actual bombs were exploding in South London. So they were making a decision to allow some people to die as a means towards saving others.

So, the point of the trolley problem is really not to figure out what would you do if a trolley problem was out of control, it's that we frequently confront these questions of is it okay to allow some people to die or even to kill some people as a means of saving others? That's really what the trolley problem is trying to help us understand.

Ken Harbaugh:

I think that's right. I think the reason it spoke to me so loudly in law school is because I had just come off nine years as a Navy pilot and never been challenged to think philosophically in that way. What do you make of the loss of philosophical thinking and philosophical training in not just liberal arts educations, but in high schools and in the things that feed the professions?

Scott Hershovitz:

I think that philosophy should be a regular part of education. Part of the reason I wrote Nasty, British and Short is I actually think it should start even long before high school. The book is a plea to see that little kids wrestle with philosophical questions all the time. They notice philosophical puzzles. They challenge things that adults take for granted, and they're up for and capable of really deep and interesting conversations in elementary school, in high school, in college and beyond.

I think philosophy has got a bad rap in our society. I turned on my phone this morning and there's like all the controversy today about the loan cancellation, and Jim Jordan, the Congressman from Ohio tweeted, "Why should a machinist in Ohio pay for the jobless philosophy majors in Los Angeles? Why should they pay for his loans?" Actually, I want to say two things about that. One is very few philosophy majors are jobless. In fact, it's a major discipline that teaches you to think carefully, and that's extraordinarily useful in a wide range of activities. If you actually look at the salaries and the job outcomes of philosophers, they do extraordinarily well and not just when they go to law school. So there aren't many jobless philosophy majors.

But the second thing I want to say is I think that you can actually make an instrumental case for doing philosophy along those lines. But I also just think it's an important human activity, that the world is a puzzling place, and we are puzzling creatures and just being able to stop and to think and to notice that and to reason through problems carefully is a skill that I think everyone needs. It's the skill that philosophy hones in a way that very few activities do. So I think it's great that you encountered philosophy at Yale Law School. I think it'd be terrific, actually, if Navy pilots were encouraged to think about these conversations before their service, not just afterwards.

Ken Harbaugh:

Yeah. I agree. I want to talk about the book because I loved it. I've dog-eared the heck out of it. But I'm wondering before we launch into it, have you had any second thoughts about the title Nasty, Brutish, and Short, which is obviously a reference to both your kids and Hobbes, who you're not exactly a devotee of.

Scott Hershovitz:

Yeah. There's this famous phrase from Thomas Hobbes who's wondering what the world would be like if there were no government at all, and he thinks it would be terrible. He thinks it would resolve a war of every man against every man. He says that life and what he called the state of nature would be "solitary, poor, nasty brutish, and short." As I say in the book, I'm not sure about Hobbes's claim that's what life without government would've been like. But I am confident that nasty, brutish, and short is an apt description of most little kids. I hasten to say in the book, my kids, they're not just nasty brutish and short, they're also really cute and kind, and we're uncommonly lucky on that score. They're astoundingly cute and kind sometimes. But they endorse and embrace the description, at least in part.

I asked Hank once, I said, "Are you nasty and brutish?" And he said, "I can be nasty. But I'm not British." So the title of the book is, I think, mostly just representative of the kind of irreverent attitude that I've got toward some questions in philosophy and a little bit towards parenting and my kids. I wanted to signal to people right out of the gate, this is going to be fun and funny and not dry and boring.

Ken Harbaugh:

It's the observations your kids and other kids make that really set this book apart. There were some that literally made my jaw drop. I had a few hours in the car, so I was listening to part of it. You relate this one story that I shared with my wife, actually called her up and it blew her away, too, I believe from Gareth Matthews. Is he one of the philosophers you're referencing in the book? So he talks about a sleepover or something like that where... Well, you probably know which one I'm getting at. Do you want to relay the story about...

Scott Hershovitz:

Yeah. It's a little boy named Ian.

Ken Harbaugh:

That's it.

Scott Hershovitz:

Yeah. This is actually one of my favorite stories of a kid asking a question. So Ian's family has another family over. I think they had them over for dinner, and afterwards the kids watch TV, and there were three kids in the other family and just Ian in his. So they watched the show that the other kids want to watch, and it means that Ian misses his favorite TV show. Afterwards, after the other family's gone home, Ian says to his mother, "Why is it better for three people to be selfish than for one person to be selfish?" I just love that question. It's such a great illustration, it's one of the reasons I love it, of what I'm trying to get people to see, that kids challenge things that grownups take for granted.

So in a lot of situations, we just think, "Oh, we're having a conflict about what to do. What's the majority of people around here want to do?" That seems like a common method that we use to decide questions. It seems like an obvious thing to do. And Ian is saying, "Wait a minute, it's not obvious." If each of us are just voting our own selfish interest, why does the fact that there are more of you count for more? In that way, it's an interesting challenge to democracy. If we just walk into the voting booth and we're selfish, is that a good way of making decisions? Ian's suggesting that it's not, and I think I kind of agree with him, actually. I don't think we should be selfish when we cast our votes.

He's also challenging a method of thinking that you and I learned a lot about in law school, this economic way of thinking that suggests we should try and maximize the satisfaction of people's preferences. Ian's saying, "Wait a minute. If people's preferences are just selfish, why is the fact that there are three of you count more than the fact that there's just one of me?" And his mother was totally flummoxed by this question. She didn't know how to answer, and she just kind of brushed it off. I think most adults would have. But I think it's actually super cool to sit down with Ian and ask him, "What do you think would be a fair way to make a decision in these circumstances?" And try and reason with him together about what's the right way to resolve these kinds of conflicts.

Ken Harbaugh:

Are there areas of your philosophy in which your kids' ideas and observations have fundamentally changed your own?

Scott Hershovitz:

Absolutely. The best example in the book, I think, comes in the last chapter, which is about God. My son, when he was four years old, he went to the Jewish Community Center preschool, so he would learn about God and he'd learn about various aspects of Jewish religion. He had a lot of questions, and he would frequently ask if God was real. One night I was cooking dinner and he said, "Is God real?" And I said, "Well, what do you think, buddy?" He said, "I think that for real God is pretend and for pretend, God is real." I was just stunned by that. It was such a complicated thought. I said, "What do you mean?" He said, "I think that God isn't real, but when we pretend, he is."

I've been thinking about that ever since he said it. I think it's been like eight years now. It really helped me understand myself in a deeper way because I don't think of myself as a religious believer. I wouldn't say that I think that God is real and that the stories in the Bible happen just the way they're told. Nevertheless, I participate in lots of religious rituals. I observe Jewish holidays. I fast on Yom Kippur. I keep Passover. I go to synagogue and participate in lots of the life events.

Rex, my older son who said this, his bar mitzvah's coming up soon, and he's studying hard for it. I've often wondered why is it that I do these things? And why are they important to me if I don't believe in God? Rex helped me understand that. He helped me see that God may not be real, but when we pretend, he can be. I realized that in the same way that pretend play enriches kids' lives, pretending can enrich adult's lives, that by pretending in these rituals, it connects me to a community and gives me ways of marking important events in our lives. I appreciate the peacefulness and the opportunity for reflection that comes with many of these rituals. So I came to see through Rex what I'm doing as a kind of pretend and to understand the way that pretend enriches my life.

Ken Harbaugh:

But you have interrogated those rituals and traditions and rationalized your participation in them because of the value that bounces back. I'm wondering if there are values you hold, if there are things that you just choose to believe in as articles of faith? There's no rationale from them, but...

Scott Hershovitz:

Yeah. Part of this God chapter is about thinking about what faith is. Actually my favorite explanation of what faith comes from a philosopher who teaches at Berkeley. Her name is Lara Buchak and she says that first, faith is more about action than belief, that when you have faith, you're choosing to act as if something is true even if your evidence doesn't adequately ground the belief that it is. She offers this example, which I think is really nice: If you and I have, say, a friend in common, and you think she's not telling the truth about something, and you come to me and you say, "Look, I think she's lying." I might say, "I have faith in her." Buchak says, "I'm not saying that I think that your evidence is bad or I think that I have counter evidence. I'm saying I'm going to act as if she's telling the truth. I'm going to take a chance on her."

I think that's a really helpful way of understanding what faith in God is like because a lot of religious believers don't take themselves to have adequate evidence to show that God exists. They recognize that the evidence isn't so great. It's consistent with lots of different hypotheses. But they nevertheless have decided to act as if God exists and to orient their life around that. And I admire that immensely. I think that religious believers, people that have faith, do an awful lot of good in the world, and they do an awful lot of good in the world because of the way they choose to orient themselves.

I then say that though I admire it, it's not something that I find that I can do, in part, because I feel like I've adopted the different orientation in the world. I've adopted the orientation of the philosopher, the person who has doubts and doubts their doubts, and has questions and is constantly searching for truth. I feel like these are maybe not incompatible, but ways of being in the world that are somewhat intentioned. So I don't begrudge anyone their faith. In fact, often, especially when it's faith that leads to good acts in the world. I admire it immensely. But it's not something that I take on myself.

Ken Harbaugh:

But there are articles of faith that don't necessarily attach to conceptions of divinity. I mean, the idea of love existing or cruelty being wrong. I'm wondering, have you ever, for example, doubted your love of your children or are there things that you just accept because that's how you want to live your life?

Scott Hershovitz:

Yeah. I do think that I have faith in many things, which is to say... Just thinking of love, I think, is a really great instance. A lot of people have doubts, say, on the precipice of marriage and it's totally rational to have doubts because if you look around the world, you see that a substantial chunk, maybe even most marriages, fail. So if you were assessing your evidence, you ought to say, "Oh, look, there's like a good chance this relationship is not going to work out."

But nevertheless, having faith in the relationship, having faith in the other person, I think it opens up possibilities that aren't available to you if you are going to access everything rationally and just consider your evidence. I think sometimes Kierkegaard talked about, in the religious context, taking a leap of faith. I definitely think I've taken that leap in respect to lots of relationships in my life. I'm not going to assess the evidence. I'm not going to worry about what it is. I'm going to have faith in this person and our connection. I think that makes possible a kind of long-term commitment that just wouldn't be available to you if you weren't willing to take that leap.

Ken Harbaugh:

You have this quote in a recent interview. I'm going to read it back to you and then want to apply it to something else you wrote. You said, "A lot of philosophers are watching the world burn around them and they're asking what do the tools they have offer the world?" That gets back to the practical application of philosophy, which you really made real with your op-ed about Taylor Swift's refusal to forgive Kanye West. Can you talk about the philosophy of forgiveness because I heard a lot about that op-ed when it came out and it forced me to have some conversations as well?

Scott Hershovitz:

Yeah. So Taylor Swift gave this interview a couple years ago, and I can't remember who was interviewing her, but they asked her about forgiveness, and she said, ‘A lot of people say that you have to forgive in order to move on with your life.’ She said, "I don't think that's right." She said, ‘I think forgiveness is something that you do when people have earned forgiveness, but not everybody earns forgiveness. They don't always acknowledge they're wrongdoing.’ She said, "You don't have to forgive to move on. Sometimes you just become indifferent, and then you move on." I thought this was super insightful. It actually connected with a tradition and philosophy that's hundreds of years old. So let's just think about what forgiveness is for a moment. A sort of leading thinker about forgiveness was this a Christian theologian named Bishop Butler who actually described forgiveness as the release of resentment. So you resent somebody who's wronged you, and when you forgive them, you release your resentment. But almost immediately, people started to realize, "Well, wait a minute. Sometimes I release my resentment because you apologized, and that gives me reasons to no longer be angry with you or as angry with you as I once was." But sometimes, as Taylor Swift is suggesting, you release your resentment for different reasons. It's not that you've done anything which shows that you merit forgiveness. It's that resentment can kind of eat at me, and I don't want to be consumed by this anymore. So Swift is saying, ‘Hey, look, sometimes I just have to say, this is not good for me. So I'm going to let this go. I'm going to become indifferent, and I'm going to move on with my life even though I still think you wronged me and maybe I still think you deserve resentment. I'm just not going to hold it anymore because it's not good for me.’ I think that's super insightful. I think it's an invitation to think about both the circumstances in which resentment is warranted and then also the circumstances in which we should be willing to let it go.

Actually, this is an illustration of something we were talking about earlier. I think that philosophy, like philosophical questions, they're present pervasively in our lives. We've all been wronged. Sometimes we've been apologized to; sometimes we've not been apologized to. We have to decide how we're going to move on with our lives, whether we're going to demand forgiveness, whether we're going to wait for it, or whether we're just going to get going with things and try and forget about the experience that we had. I think we all wrestle with it. The title of that article, when it ran in the New York Times, was Taylor Swift, Philosopher of Forgiveness. I think having that set of thoughts, she absolutely earned that title, and I think there was a lot of wisdom in what she said.

Ken Harbaugh:

Did you ever hear from her?

Scott Hershovitz:

I didn't. I think there's a level of fame that you can reach where people write articles about you in the New York Times, and I always wondered, did it even cross her horizon? I kind of hope that somebody clipped it for her and said, "Hey, this is cool." But I don't even know if that happened. So if you're listening and you know Taylor Swift, please make sure that she sees this essay. I think what she had to say was super smart.I invited her to my class. I mean, if she does hear about this and she wants to talk more about forgiveness, she is always welcome in my class at Michigan.

Ken Harbaugh:

Have you ever tried to apply that philosophy of forgiveness to our current political context? Because I think a lot about the need for reconciliation, which oftentimes there are things that have to precede that. But how do we accommodate tens of millions of Americans who have voted for a vision of this country, totally unrepentantly, that excludes millions of their neighbors? Going into this upcoming '22 election and the existential election in '24, is forgiveness even possible without atonement?

Scott Hershovitz:

Yeah. Let's back up a little bit. One of my favorite contemporary philosophers is a woman named Pamela Hieronymi who teaches at UCLA. She was a consultant for The Good Place, even has a cameo appearance in the last episode, wrote this really interesting article called Articulating an Uncompromising Forgiveness. What she said is that we should understand resentment, in her view, as a kind of protest. She said, "When you're wronged by someone, that wrongdoing sends a message." The message varies by the wrongdoing. Sometimes it says, "Hey, I'm here up high and you're there down low." Sometimes it says, "I can use you for my purposes or I matter and you don't." We're all familiar with feeling like that when somebody treats us badly. So she says, "Resentment is actually a kind of self-protective emotion. It's a way of protesting that treatment." That's why it's actually good sometimes to feel resentment. If somebody's taking abuse and they just take it, they come to think that they deserve it. This is a bad situation to be in. So she says, "In the first instance, feeling resentful when somebody wrongs you, that's actually a good thing. That's self-protective." Then the question is, how can you get past the resentment? Well, Swift is saying you could just become indifferent and move on. I think sometimes that's what we have to do. But Hieronymi says, "Look, there's a variety of things that could happen, which could abate the threat that those bad messages about you posed." Like, the most desirable thing would be for the person who wronged you to apologize, for them to say, "Hey, I see that I mistreated you. I don't think of you that way." And then you could forgive them because they're no longer threatening once they acknowledge the wrongdoing and say they won't do it again. So that's one thing that could happen. But she says there's other things that could happen that could help you respond to that threat and feel comfortable living in the world. One of them is that there could be some communal response. So, that person could be, say, punished for what they've done, or they could be ordered to pay you compensation for what they've done. That's a way of your community coming together, often through the legal system, and saying, "Hey, we don't think it was okay for you to be treated that way, and we're going to make this person take some corrective action."

So when I think about our political system writ large and, say, what's going on right now with the various investigations of Donald Trump, his interference with the election or his now the mishandling of classified material, I do think it's important sometimes that we find ways of marking wrongdoing and say, "Hey, actually, we're not going to turn the other cheek here. Not yet." It's important to say it's not okay for you to treat our political system this way. It's not okay for you to treat our secrets this way. It's not okay for you to treat us more generally, democratic electorate, as if our votes don't matter.

I think it's actually really important right now that we find ways to communicate that message and to make it meaningful, and for there to be accountability for especially the people who tried to disrupt and overturn the results of the election, the people involved in the January 6th attack on the Capitol.

But your initial question, I think, also invites us to think about our future, and a world in which we only have accountability is probably a world in which we're not going to manage to live together, or not live together well. So actually, I'll recommend another book. An old friend of mine, who is the founder of a group called Interfaith America and named Eboo Patel just published a book called We Need to Build. The idea in the book is if you look around our society and you don't like the way things are going, that you need to think not just about criticizing the way things are going, but about building solutions on small scales, on big scales. Ask, how can I help build the institutions that we want to have? I think that's a super constructive set of thoughts because I think when we're on social media, it's really easy just to be the person who's criticizing and not the person who's thinking, how can I build relationships with my neighbors who may have voted for Donald Trump or who still find things attractive about them? I think that's the challenge we all have even if we think that the people who committed crimes here need to be held accountable. I do think that we also need to turn our attention to the future and building the kind of communities that we want to have.

Ken Harbaugh:

How much of the responsibility for those actions... You just went through a very partial litany of Donald Trump's, and obviously the rioters on January 6th, how much of the responsibility for that transfers to their passive supporters? Before you answer, I want to reference the philosopher Robert Paul Wolff, who you include in the book, the philosophical anarchist from Harvard. He says that kids have responsibility in proportion to their capacity to reason. That jumped out at me because I think we are witnessing an epistemic crisis in this country where a good chunk of the population, given the information input that they are limited to, have lost the capacity to reason. Are they responsible when they believe in The Big Lie, for example, if that's all they can?

Scott Hershovitz:

Yeah. It's interesting you put it that way. Lost the capacity to reason. I think that I would describe the base of the problem differently. You used the word epistemic. Philosophers talk a lot about echo chambers and epistemic bubbles, and a lot of people conflate those terms, but they're different technical ideas. Let's just think about what they are.

An epistemic bubble is you're in an epistemic bubble where you don't encounter contrary views. So, if all you ever look at is one source of information that's presenting a consistent set of ideas, then you're in an epistemic bubble. Actually, I use families as an instance of epistemic bubbles. In relation to the tooth fairy, when my kids were little, they lived in an epistemic bubble. They encountered only one source of information, their parents, who were presenting the tooth fairy as if she was real. But then it turns out epistemic bubbles are super easy to pop. My youngest son, Hank, talked to a friend of his who told him the tooth fairy was not real even before he'd lost any teeth. So now, he was able to consider the alternative possibility that the tooth fairy wasn't real.

Echo chambers are, I think, much more dangerous than epistemic bubbles because I think most of us in the world still encounter people that disagree with us. I think even if you watch a lot of Fox News, you're aware of alternative ideas. So you're not purely in a bubble. But the echo chamber idea is that if you are in an epistemic environment where contrary sources of information are constantly undermined, you're taught not to think of them as trustworthy, then you're apt to become very dismissive of them. So this is the idea that people try to capture by talking about echo chambers.

I think of Rush Limbaugh as having been maybe the most effective creator of an echo chamber in our recent history, that he painted this picture of the world in which people that disagreed with him about anything were corrupt and out to get him. They weren't just people that maybe assessed the evidence differently or had encountered different evidence. There was something wrong with them.

I think a lot of Americans do live in echo chambers where they're not open to considering ideas that don't come from their preferred sources of information because they've come to think that, say, the mainstream media or public health officials or whatever it is are corrupt and out to get them. I think that's a real problem. I suppose, actually, as I've talked about it, I'm coming around to your way of thinking that this is not just an epistemic problem. It's a kind of debasing of your ability to reason because it's leading you to immediately discount evidence that has value.

So I think it's really important in parenting, for instance, to think about not shielding your kids from information, and not teaching them automatically to distrust it, but teaching them how to evaluate it. So I teach my kids when you're thinking about a news source, ask, are these people trying to outrage me or are they trying to inform me and let me draw my own judgments? I think that's a key question. Another question to ask is if they learned that they were wrong, do I think they'd tell me? For newspapers, that might be like, do they publish corrections? It's not that I think that mainstream news organizations, that the people involved with them never have their own political biases, but I think they adhere to very strong norms that if they discover one of their stories is incorrect, they retract it. That helps me trust the information that I'm getting from them. Then there's other organizations, Newsmax, that I know don't operate like that. So I want my kids to learn not just New York Times good, Newsmax bad, but the reasons underlying those assessments and be able to apply them themselves.

Ken Harbaugh:

Well, I have a million more philosophical questions, but we're running out of time, and I have to ask. You clerked for Ruth Bader Ginsburg and her loss has radically transformed the Court. Did you see this coming? What did you feel when you got word, I imagine you heard before most of us, that she wasn't going to make it?

Scott Hershovitz:

Yeah. It was devastating. It was devastating for me personally because she played a big role in my life and I admired her immensely, but absolutely it's been devastating for our country in a different sort of way because Justice Barrett replaced her on the court. Donald Trump got to pick her successor, and I think we're all experiencing a bit of whiplash at just how dramatically the direction of the Court has shifted. It's certainly the Dobbs decision that overturned Roe and took away people's rights to make decisions about whether to have children, but a litany of other decisions about prayer in school and concealed carry of guns and even decisions that didn't attract as much attention represented dramatic shifts in the law, say, the relations of tribal governments to state governments. I think people are only just starting to glimpse how differently this majority of the Supreme Court, what a different vision they have for our country. I think it's going to unfold over the next few years. I think a lot of people aren't going to like the direction that it's headed.

I hope that the Dobbs decision is enough, that people, they see what's headed our way, what's already gotten here is bad, and there's more to come and that they take that as an impetus to get out and vote because I think that people on the right have long been keyed into the fundamental role the Supreme Court plays in shaping the law in the United States and deciding what our constitutional rights are, and people on the left are only just becoming aware of its significance and the need to prioritize that when deciding when it's time to vote, not just people on the right and left, but people in the middle who had thought, "Oh, my daughter will be able to make her own decisions about whether she wants to be pregnant," and are realizing that's not the vision that the Supreme Court has for our lives.

Ken Harbaugh:

Well, you probably saw that intention on the right at Yale Law School. I certainly did, the decades long project to reshape the bench starting by grooming... It's a loaded word, but it applies here... right-wing judges to take those seats when the opportunities came.

Scott Hershovitz:

Yeah. Look, I don't think it's a great thing about American democracy that the nine justices wield this control over our lives. I think we should take some steps to reduce the power that they have over our lives and to reduce the significance that any one justice happens to play. So there's a lot of talk lately about court packing, which is already a dismissive term for the idea that we might expand the number of justices. Some people say, "Oh, look, here's how we could restore the vision of law that in some ways prevailed up until this most recent shift: We could add two justices to the Court," and people are especially keen maybe to do that because they see Justice Gorsuch as having gotten on the Court illicitly when Justice Garland was denied a vote by the Senate Republicans, and I think that some good could come out of that. People worry that you'd end up in a kind of tit for tat situation that when Republicans had power, they would expand the Court in response. I do think that's a legitimate worry, that we would just end up in this escalating cycle. I actually have a Court plan that would be much more radical. I don't think we should have 9 justices or 11 or 13. I think we should have 45 of them. They should hear cases in panels so that we never know which 9 justices are going to be deciding cases. So they have to coordinate across the different randomly selected panels that might be selected so that they start to treat this as more of a legal exercise, and I think less of a political exercise, is one upshot. It would make them more like the courts of appeals that never know which three judges, say, on the ninth circuit are going to hear a case.

So, like the 30 some-odd of them have got to work more together to create law that's going to be applied consistently. Then also, if there were 45 of them, we wouldn't know their names, at least only people in law school would know their names. We wouldn't be obsessed with their views. Importantly, it wouldn't matter so much who died when and who decided to retire because one person couldn't make that big a difference. So, I think people are sometimes thinking too small about the reform that we need. We need to take some steps, and there are others. We could take some decision-making power away from the Court. That might be good. But I think that diminishing the role that individual justices play in our lives is probably something we ought to pursue.

Ken Harbaugh:

I like it. Although 45 is a cursed number at this point. So maybe 47.

Scott Hershovitz:

Yeah. I didn't realize. Yeah.

Ken Harbaugh:

Last question, and it's more of a plug. I just discovered your Twitter feed. It's fantastic. But the banner has a British edition of the book. What did they change? How is the British philosophy-reading audience different?

Scott Hershovitz:

Oh, it's funny. I thought they might change the spelling of words, that color might have a U in it. But I think they decided that that was too expensive and the British audience understands that anyway. So the only thing that's different is the cover and the title. In America, it's called Nasty, Brutish, and Short: Adventures in Philosophy with My Kids, and in the British edition, it's called Nasty, Brutish, and Short: Adventures in Philosophy with Kids. I'm not sure whether that one word, “my”, deserved all the back and forth arguments that we had on both sides of the pond of whether it belonged there or whether it didn't, but you'll get the same book either way. So you can pick the cover that you like or just the country that you're in for ordering.

Ken Harbaugh:

Awesome. Well, Scott, it's been great having you. Thank you so much for joining us.

Scott Hershovitz:

My pleasure. It's super fun to be here.

Ken Harbaugh:

Thanks again to Scott for joining me. Make sure to check out his book, Nasty, Brutish, and Short. The link is in the show description.

You can find Scott on Twitter at @shershovitz.

Thanks for listening to Burn the Boats. If you have any feedback, please email the team at [email protected]. We're always looking to improve the show.

For updates and more follow us on Twitter @team_harbaugh. And if you enjoyed this episode, don't forget to rate and review.

Burn the Boats is a production of Evergreen Podcasts. Our producer is Declan Rohrs, and Sean Rule-Hoffman is our audio engineer. Special thanks to evergreen executive producers, Joan Andrews, Michael DeAloia, and David Moss. I'm Ken Harbaugh, and this is Burn the Boats, a podcast about big decisions.