On Fixing the Supreme Court

The Supreme Court being in the (bad) news, someone posted a link to a forthcoming article in the California Law Review. The article, “Democratizing the Supreme Court”, is 71 pages long. Below are 2 1/2 pages of excerpts. I think they’re interesting. 

Before getting to that, however, I want to point out that the effort to defang the Electoral College is further along than most people realize. This is good news:

The National Popular Vote Interstate Compact will guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. The Compact is a state-based approach that preserves the Electoral College, state control of elections, and the power of the states to control how the President is elected.

The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes.  The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA).

Ok, back to the Supreme Court:

Supreme Court reform is on the progressive agenda, but the debate about how to conceptualize and therefore to pursue it has barely begun. . . . Though only in early stages, our era’s discussion now risks brevity and error. Historical memories have favored “court-packing” or personnel expansion of the institution as practically the only imaginable reform. . . .

The basic purpose of this article is to counteract this risk. It reconsiders the criteria of reform, not with the assumption that the goal is re-legitimating the Supreme Court, but with the necessity of progressive transformation of the country in mind. . . .

This article [compares and contrasts] the widest range of imaginable statutory reforms under our current constitutional regime. These include balancing the Supreme Court between parties, turning to expert or merit selection, using lotteries to compose decision-making panels from larger pools, passing jurisdiction stripping statutes (potentially ones introducing alternative executive branch adjudication), institutionalizing higher voting thresholds for judicial decisions, or opening the possibility of their legislative override . . .

The last discussion of Supreme Court reform, climaxing in the emergency of the 1930s, is a cautionary tale more than an inspiring precedent. Formally, Franklin Roosevelt failed in court reform, even while leaving a memory of his own solution—court packing—as if it were the most viable choice now. . . . The lesson of the last reform era for our own is that we must democratize the Supreme Court . . .

The consequence for the discussion of Supreme Court alternatives is straightforward. It must begin with how to diminish the institution’s power in favor of popular majorities. Asking “how to save the Supreme Court” is asking the wrong question. For saving it is not a desirable goal; getting it out of the way of progressive reform is. The New Deal court reform had the chance to counteract the assumption that judicial power is hardwired out of necessity or in principle into American politics, only to see it canonized instead. The entire point of Supreme Court reform ought to be to avoid repeating that mistake . . .

The Supreme Court is not a separate problem from the crisis and deadlock of the American political system, in view of the fact of a rising [liberal] majority abetted by demographic and generational change and more and more open to national renovation. It is part of crisis and deadlock, to be reevaluated rather than restored in its basic functions if progressive reform is to occur. . . .

Progressive activists and scholars have proposed a host of reforms in recent years, from court packing to jurisdiction stripping to term limits. [These] various proposals can . . . be sorted into one of two types. . . . The first type, which we call “personnel” reforms, propose to alter the Supreme Court’s partisan or ideological composition. . . . [They] try to improve our situation by adjusting the Supreme Court’s membership . . . [Since they only deal with] who sits on the bench, personnel reforms take for granted that the Supreme Court wields tremendous policymaking authority. The goal of such reforms is thus, for progressives, to wrest that authority away from conservatives.

By contrast, the second type of proposal, what we call “disempowering” reforms, take aim at what the Supreme Court is permitted to do. Reforms like jurisdiction stripping or supermajority voting rules for judicial review, for example, limit the Supreme Court’s ability to make policy to varying degrees. In so doing, disempowering reforms effectively reassign power away from the judiciary and to the political branches. Unlike their membership analogues, these ‘small-d’ democratic reforms have no obvious ideological valence . . . Partisan advantage would be tied directly—and evenly—to electoral outcomes. Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections. . . .

Many of the personnel reforms . . . try to restore or preserve the Supreme Court’s perceived role as an apolitical decision maker. . . . Immediately, however, this shift from non-ideological to ideological moderation or centrism should set off alarms. Insofar as the Court is supposed to be a neutral arbiter of the law, reforms that conduce to ideological moderation are fundamentally of the wrong type. The neutral arbiter ideal is essentially what Chief Justice Roberts invoked with his in/famous judges as “umpires” metaphor. That image of judging, of course, assumes a sharp distinction between politics and law. . . . [But] it makes no sense to insulate judging from politics by imposing moderate or centrist politics as opposed to politics that are far left or far right. . . .

Few if any would argue that the Supreme Court’s legal analysis goes uninfluenced by willfulness or motivated reasoning. Especially in politically significant cases, the consensus among scholars and other legal observers is that the Supreme Court’s decisions are, to the contrary, driven substantially by ideological commitment. . . . To impose a moderate or centrist ideology is not to remove ideology from the equation. Just as those on the far left or the far right are susceptible to motivated reasoning or willfulness, those in the political center have substantive preferences that can lead them astray if those preferences do not align with the law. Put more simply, it is hard to see how merely changing the Court’s ideology would make the Court less ideologically motivated. . . . [I think the idea is that moderate or centrists are less ideological, so having more of them on the court would reduce the effect of ideology on the Court’s decisions.]

The push for democratic legitimacy starts from the observation that much of the Supreme Court’s work is inherently political. Especially in constitutional cases, many of the claims the Court is asked to evaluate are legally underdetermined or, at a minimum, epistemically opaque. As a result, Supreme Court justices inevitably rely upon policy inclinations in deciding what the Constitution requires or permits. The question for small-d democratic reformers, then, is how to reconcile the ideological nature of these determinations with a commitment to democratic self-rule. For proponents of disempowering reforms, the way to address the apparent tension is to redirect decision-making authority away from the democratically unaccountable judiciary and toward the political branches. . . .

Among personnel reforms, court packing is probably the most uncontroversially legal. . . . The number of seats on the Supreme Court has been set since its inception by statute and Congress has adjusted the size of the Court – from six to seven, to nine, to ten, back to nine – numerous times.This longstanding congressional practice couples with relative constitutional textual silence. While Article III assumes the existence of a Supreme Court and Article I, section 3, that there will be a Chief Justice, nothing else in the text seems to bear on how large or small the Court must be. . . . After court packing, the legality of personnel reforms gets murkier. . . .

Disempowering reforms are also contestable, legally speaking. Jurisdiction stripping is perhaps the most aggressive reform and famously raises numerous constitutional questions—questions that become more difficult the more comprehensive the strip. In particular, the Supreme Court has remarked repeatedly that “serious” concerns “would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Such worries apply to specific constitutional issues, let alone to broad categories of claims.

Despite this controversy, stripping courts of jurisdiction, even over constitutional challenges, has strong textual footing. As numerous scholars have observed, Article III’s grant of authority to Congress to “make … Exceptions” to the Supreme Court’s appellate jurisdiction while at the same time placing the existing of “inferior” federal courts entirely within congressional control suggests that Congress enjoys sweeping authority concerning which cases federal courts are permitted to hear. And as to state courts, both the Supremacy Clause and the Necessary and Proper Clause appear to provide Congress substantial discretion there as well. Taken together, Christopher Sprigman argues that these features indicate the Constitution “gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters,” relying in some instances on political rather than judicial checks to enforce constitutional constraints. . . .

Court reform is a debate about both means and ends. The conventional prevailing view is that we should use non-neutral means of reform that correct distortions in membership on the bench in order to achieve the neutral end of an apolitical Supreme Court. In opposition to this view, our argument has favored the neutral means of democratization—which shifts power to whoever wins elections to determine the fate of the country—as the most plausible way to achieve non-neutral ends.

Of course, somebody else than progressives could win those elections, and constitute the political majorities to come. But if right-wing nationalists win, the country is already lost. And if a centrist coalition in either party prevails, they establish the outcome many court reformers hope to achieve through personnel reforms.

But the rightist and centrist outcomes are not the only possibilities. If a progressive coalition wins, it could take advantage of the power reassigned from the Court to allow politics to redeem the country—something that no court, let alone our Supreme Court, will ever do.

I Can’t Think of a Title

February 13, 2016: “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement released after Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.”

February 23, 2016: “I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that’s underway right now” McConnell told reporters [although there was no election underway in February] . . . I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president…The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.” 

May 28, 2019: An attendee at a Chamber of Commerce event in Kentucky asks McConnell, “Should a Supreme Court justice die next year, what will your position be on filling that spot?” “Oh, we’d fill it,” McConnell replied, grinning.

September 18, 2020: “President Txxxx’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement on Friday evening [without even waiting until the next day].

We know how unique the president is and that Senator McConnell’s only motivation is power. Are there four Republican senators who will choose to honor Ruth Bader Ginsburg’s memory, if only for their own selfish reasons? I doubt it.

David Frum, however, a conservative anti-Txxxx commentator, doesn’t think this is a done deal. He suggests that:

(1) Some Republican senators behind in the polls may see this as an opportunity to look independent and win re-election. Others may have a reason (personal honor, a previous strongly-stated position) not to go along with McConnell.

(2) It may be difficult to find a nominee, given how much criticism they’ll receive, especially if they aren’t guaranteed approval in the Senate.

(3) Nominating a replacement before the election will mobilize even more anti-Txxxx voters, so it would be in the president’s interest to wait.

(4) The conservative legal establishment may resist in order to minimize the chance that a Democratic Congress will make much-needed, pro-democracy reforms to the Supreme Court.

Michelle Goldberg of the New York Times discusses some of the same considerations and concludes:

If Republicans force a justice on us, it’s because they believe that standards are for suckers, and people who hold power need not be constrained by any pledge or institutional tradition.

According to Ginsburg’s granddaughter, the justice made a dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.”

It doesn’t matter how exhausted we are, or how difficult the odds. In this hell-spawned year, we can either give up, or give everything we can to stop some of America’s worst men from blotting out the legacy of one of our very best women.

Bad News (a Long Read)

Looking out the window in a pleasant neighborhood, you don’t see the problems. But they’re very real.

This is the headline of an article in Time written by a businessman and a former labor leader: “The Top 1% of Americans Have Taken 50 Trillion Dollars from the Bottom 90%”:

Like many of the virus’s hardest hit victims, the United States went into the COVID-19 pandemic wracked by preexisting conditions. A fraying public health infrastructure, inadequate medical supplies, an employer-based health insurance system perversely unsuited to the moment—these and other afflictions are surely contributing to the death toll. But in addressing the causes and consequences of this pandemic—and its cruelly uneven impact—the elephant in the room is extreme income inequality.

How big is this elephant? A staggering $50 trillion. That is how much the upward redistribution of income has cost American workers over the past several decades.

This is not some back-of-the-napkin approximation. According to a groundbreaking new working paper by Carter C. Price and Kathryn Edwards of the RAND Corporation, had the more equitable income distributions of the three decades following World War II (1945 through 1974) merely held steady, the aggregate annual income of Americans earning below the 90th percentile would have been $2.5 trillion higher in the year 2018 alone. That is an amount equal to nearly 12 percent of [Gross Domestic Product] —enough to more than double median income—enough to pay every single working American in the bottom [90%] an additional $1,144 a month. Every month. Every single year.

Price and Edwards calculate that the cumulative tab for our four-decade-long experiment in radical inequality had grown to over $47 trillion from 1975 through 2018. At a recent pace of about $2.5 trillion a year, that number we estimate crossed the $50 trillion mark by early 2020. That’s $50 trillion that would have gone into the paychecks of working Americans had inequality held constant—$50 trillion that would have built a far larger and more prosperous economy—$50 trillion that would have enabled the vast majority of Americans to enter this pandemic far more healthy, resilient, and financially secure. . .

At every income level up to the 90th percentile, wage earners are now being paid a fraction of what they would have had inequality held constant. . . .On average, extreme inequality is costing the median income full-time worker about $42,000 a year. Adjusted for inflation using the [Consumer Price Index], the numbers are even worse: half of all full-time workers (those at or below the median income of $50,000 a year) now earn less than half what they would have [if] incomes . . . continued to keep pace with economic growth. And that’s per worker, not per household.

The next article I read was written for the Times Literary Supplement by a Columbia University researcher. “The Rich and the Rest” is a review of three books. The first book describes how corporate America and the rich have waged a successful war on science for the past seventy years:

A succession of administrations have frayed the social safety net and dismantled regulatory controls. Corporate money has bought unprecedented influence in electoral campaigns and reaped unprecedented political power in return. In The Triumph of Doubt: Dark Money and the Science of Deception, the epidemiologist David Michaels details many of the victories these corporate interests have won. Michaels, the former head of the Occupational Safety and Health Administration under the Barack Obama administration, spent years weighing the survival of workers and citizens against the short-term profits of corporations. In his book, he documents not only a shocking disregard for human welfare on the part of big business, but also a co-ordinated effort to compromise the culture of knowledge itself.

Michaels painstakingly explains the way medical researchers have documented the dangers of certain consumer products and industrial processes, beginning with smoking. . . . One early study “found that heavy smokers were fifty times as likely as non-smokers to contract lung cancer”. This was terrible news for the tobacco industry, which had burgeoned with the wartime practice (in both world wars) of issuing cigarettes to soldiers as standard rations. And so the industry responded by commissioning a public relations expert to set up a “research committee” to contest the findings. Unfortunately, the findings were solid, so the mission became the manufacture of doubt. Did tobacco use cause lung cancer? The evidence suggested that it did. Was tobacco the only cause of lung cancer? Of course not. So carcinogens like asbestos and radon became excuses for quashing public health measures concerning tobacco. Over time, an army of publicists, lawyers and corrupt scientists was assembled to prolong the public agony in the interest of squeezing every last nickel from the trade.

. . . Chapter by chapter, case by case, Michaels marches through the many ways corporate greed has co-opted science, law and government, in each case following the model set by Big Tobacco. . . .

Michaels’s book follows in the distinguished footsteps of the historians of science Naomi Oreskes and Erik M. Conway, whose Merchants of Doubt (2010) described how Big Tobacco’s proxies segued into climate change denial. Once again, even when the science was near unanimous, the purveyors of fossil fuels and industrial contaminants saturated the public sphere with specious arguments and outright falsehoods. In recent years oil companies have busily diversified and invested in alternative energy, but they have simultaneously waged war against environmental regulations to maximize every bit of profit from the existing industry before they abandon it, regardless of the human cost.

The second book tells the story of the fabulously wealthy Koch family. It was Fred Koch, a chemical engineer, who saw a great opportunity during the Texas oil boom in the early 20th century:

Fred cleverly predicted that subsidiary industries such as refineries and pipelines would pave the way to great fortunes. He was more concerned with profits than with politics – he built refineries for both Stalin and Hitler – and, while a highly successful businessman, he remained a fairly ordinary oil magnate: it took his sons to transform the company into a political and economic powerhouse. As Christopher Leonard writes in Kochland: The Secret History of Koch Industries and Corporate Power in America, Charles Koch, who was made company president in 1966, despised New Deal America.

His response was to create “a political influence network that is arguably the most powerful and far-reaching operation ever run out of an American CEO’s office … Charles Koch’s political vision represents one extreme pole in the ongoing debate about the role of government in markets; a view that government should essentially protect private property and do little else”. . . .

[Charles] turned the full beam of his method to politics in 2008, when the Obama administration and the Democratic Congress began to draft policies to respond to the climate crisis, endangering fossil fuel profits.

Koch and his associates have created a political assembly line to fund, organize and publicize an opposition. His donors’ gatherings . . . have collected millions of dollars, which have then funded organizations such as the American Legislative Exchange Council (ALEC), which in turn have leveraged influence-peddling among state legislators, and funded faux “grassroots” (or “astroturf”) organizations, such as Americans for Prosperity. These have orchestrated demonstrations and door-to-door canvassing during elections. Koch-funded groups have subverted language with Orwellian flair: Americans for Prosperity promotes regressive tax policies and wage suppression; the Heartland Institute promotes the despoliation of the American landscape by sowing doubt about climate and environmental hazards.

The review’s third book deals with America’s “compound epidemic of addiction, alcoholism and suicide”, an epidemic that obviously predated Covid-19:

The Princeton economists Anne Case and Angus Deaton survey this tragic landscape in Deaths of Despair and the Future of Capitalism. Case and Deaton call this situation the dark side of meritocracy, in which “the less educated are devalued and disrespected”. In this view, the collapse of social constructs, including marriage, institutional religion and trade unions, leaves people unmoored and their interests undefended. And while the elites of the past often regarded noblesse oblige and charity as the obligations of privilege and faith, modern American meritocracy, rooted in the founding religion of Calvinism, suggests that the happy “elect” are deserving of their good fortune, and that the “losers” are simply reaping what they sow. To help them is throwing good money after bad. Better to spend it on a sports arena.

The upshot is dire. The US has the highest infant mortality rate and the lowest life expectancy among industrialized nations – a situation that the Covid-19 crisis has cast into sharp relief. The US accounts for 4 per cent of the world’s population but more than 25 per cent of global deaths from the pandemic. . . .

Nowhere are the flaws of unfettered capitalism better illustrated than in the opioid crisis (here as in Michaels’s book). It is a tragically familiar tale: a powerful pharmaceutical company creates a new market for addictive painkillers by encouraging and incentivizing doctors to record pain levels as the fifth vital sign (after temperature, pulse, respiration and blood pressure). Once this subjective symptom is recorded, the drug can be prescribed, having been falsely advertised as unlikely to lead to addiction. Billions of dollars in profit are then realized, at a dire cost: to this day millions remain addicted; more than 67,000 Americans died from overdoses in 2018 alone. In this cycle of immiseration, a dysfunctional society breeds pain, then creates a revenue stream from a treatment that infinitely compounds it.

Yet millions of voters, in particular struggling White men with high school educations, support the Republican Party, the party of big business. They have their reasons, despite the fact — revealed by the study described in that Time article — that “by far the single largest driver of rising inequality these past forty years has been the dramatic rise in inequality  between white men”. Again from the Time article:

The $50 trillion transfer of wealth the RAND report documents has occurred entirely within the American economy, not between it and its trading partners. . . . [This] upward redistribution of income, wealth, and power wasn’t inevitable; it was a choice—a direct result of the trickle-down policies we chose to implement since 1975.

We chose to cut taxes on billionaires and to deregulate the financial industry. We chose to allow CEOs to manipulate share prices through stock buybacks, and to lavishly reward themselves with the proceeds. We chose to permit giant corporations, through mergers and acquisitions, to accumulate the vast monopoly power necessary to dictate both prices charged and wages paid. We chose to erode the minimum wage and the overtime threshold and the bargaining power of labor. For four decades, we chose to elect political leaders who put the material interests of the rich and powerful above those of the American people.

I’ll conclude this avalanche of dysfunction with a passage from a densely-written classic, Politics and Markets, by Charles Lindblom (I’m going to finish it this time). It was published, coincidentally or not, in 1976:

One obstruction to polyarchy [rule by the many] is the privileged position of businessmen [by which Lindblom means their tremendous control over the functioning of a nation’s economy]. It is a rival . . . to the polyarchal control of government [since government must induce businessmen to keep the economy going]. Another obstruction is the disproportionate influence of businessmen in interest-group, party and electoral politics. It permits businessmen to win . . . disproportionately in their many polyarchal struggles. . . But now suppose that the business influence strikes even deeper in a particular way. Consider the possibility that businessmen achieve an indoctrination of citizens so that citizens’ volitions serve not their own interests but the interests of businessmen. The privileged position of business comes to be widely accepted. In electoral politics, no great struggle need be fought [202] . . . 

. . . Despite universal suffrage, income distribution in the polyarchies [like the US and UK] has not changed greatly. . . In few of the polyarchies is there serious discussion, even among the politically active, of major alterations of the distribution of wealth and income. And citizens are extraordinarily ignorant on the issue. . . [208].

Two recent studies of British working-class attitudes and opinions agree in finding both a narrow range of opinion and widespread deference of working class to upper class — this in a society many of whose nineteenth-century leaders feared that universal suffrage would bring about demands for a more equal sharing of income and wealth, so obviously advantageous did they see such policies for the mass of voters. It is one of the world’s most extraordinary social phenomena that masses of voters vote very much like their elites. They demand very little for themselves [208-209].

Lindblom was calling attention to economic inequality before America became vastly more unequal. Now the public is more aware of inequality, but that’s because inequality is so much worse. Nevertheless, “masses of voters [continue to] vote very much like their elites”. What would the professor make of our situation in the year 2020? (I bet he’d recommend voting.)