These Thread-Bare Robes

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Brian makes an excellent observation about the dime-store language of the Supremes' First Amendment decision. It is language that I think public choice theory helps explain. In fact, I don't think you can make sense of what the Court is saying at all without some reference to their relative economic position in Washington.

You see, the Supremes are relative paupers in D.C., condemned to live out their lives on a good—$190,100 a year—but by big time Washington standards, hardly eye-popping paycheck. Worse, they have no prospect of toiling for a few years deciding presidential elections and such, before quitting to hang out a shingle and lobby the living hell out of their replacement. (Retainer negotiable, billable hours not.)

This situation has fairly driven Chief Justice William Rehnquist around the bend, who spends much time trying to convince the world that federal judges are overworked and underpaid. Worse, the POTUS just saw his take bumped to $400K a year while Rehnquist is stuck at $198K and change, and no fat memoirs advance awaits either.

So when the Supremes complain about "big money" in politics I take that to mean money is going to the wrong people, i.e., not them. On these grounds, the correct and honorable thing is recusal from any case which involves the flow of political money into D.C. It simply is not possible for a sitting Supreme Court justice to be a disinterested party in the matter.

NEXT: Stunning Anticlimax

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  1. Isn’t lumping the boomers into one sack exactly the sort of collectivist pit that we try to avoid falling into?

    And no, I’m not a boomer… I’m a 1977 vintage, and have no clue what generation that makes me. Nor do I particularly care.

  2. repost
    You miss the point. Of course MF will be an utter failure when measured against the pretext it was argued on. But it will succeed in its true purpose of solidifying the establishments grasp on the reigns of power. Money will still flow copiously through the hands of establish organizations and major parties. They will simply pay protection money to their lawyers and be allowed to subvert the law. However, anyone outside the system, otherwise capable of posing a credible threat to the status quo, will have to choose between silence and prison.
    /repost

  3. “You’re absolutely right. The boomers raised the x and y.”

    I resent that. I’m an Xer and my parents are members of the Silent Generation. Thank god for that!

    “Their problem is that they want money and influence. They can have one but not the other, and that’s what bothers them, if anything.”

    Wordy McWord, Charles Oliver. Excuse me while I weep for nine of the most powerful/influential people in the United States who are forced to live on a mere $200K a year. Think of the shame they feel every day at the country club.

  4. I am shocked at how little the supremes make.
    Several of my economics professor colleagues
    at Maryland (a public university) make a good
    bit more than that – as I am sure Maryland’s
    football coach and tirelessly politically
    correct university president do as well.

    They should get a raise. Well, OK. Only the
    four who dissented on the campaign finance
    decision should get raises.

    Jeff

  5. I think the SCOTUS decision was terrible, but this post is one of the weakest I’ve ever read on Hit & Run. Cynicism is always justifiable in Washington, but this specimen is based on nothing but rank speculation. Cynicism without any evidence is just a pose.

    Jeff, are you truly serious in suggesting that the SC recuse itself from all cases involving government employees who are “richer” than they are, because they might get jealous?

    Give me a break.

  6. Pete,

    Like many of us, I think Jeff is just clutching at whatever straw he can find to try to understand how the SCOTUS can rule than congress making a law that abridges freedom of speech 60 days before an election is not in condtradiction to the part of tghe First Amendment that says “Congress shal make no law…abridging the freedom of speech.”

    This decision so defies any concept of reason or logic the most absurd explanation might not be to far from the truth.

  7. Well, I’ll buy that. I’m also just stunned at the decision – I never, ever expected this SC to go 5-4 against free political speech. I was expecting something more along the lines of 9-0 in the other direction.

  8. Brilliant analysis, but I wonder why you passed up the obvious “because they’re poopy heads” theory.

    Weak dude.

  9. How about this left-of-center theory: SCOTUS is simply strengthening the re-election chances of the stupid sham-president they illegally installed after Al Gore won the election in 2000.

  10. My initial take on your rant was that you were being deliberately absurd with an eye towards having some fun.

    But as long as we’re on the subject…

    Since when is money speech? Why do Mommy & Daddy Warbucks get more of a say just because they have more money? Is this a democratic or mercantilistic republic? More and more the latter it seems to me – and to the SCOTUS folks, apparently.

    This was also something the legislature supports. Usually, the SCOTUS tries to steer clear of impeding legislative will unless it’s clearly unconstitutional; which takes us right back to the money vs speech issue. Politics is still the primary problem solving apparatus of our society (as opposed to bullets and or torture chambers), and it’s a wise judge who avoids interfering unless absolutely necessary.

  11. So you would have preferred to have the Florida supreme court install Al Gore as president, rather than the US supreme court install George Bush as president?

    What makes the former preferable to the latter?

  12. I would say, based on their recent work product, that the Supremes are overpaid, not underpaid. If you turn out shite, you can’t expect to make top dollar, now can you?

  13. I was not endorsing the analysis in the original
    post, only agreeing with the observation that
    the supremes do not make much by DC standards.
    Of course, power here counts more than other
    places in the social scale. Does anyone know
    if they can accept paid speaking engagements.

    I think the money theory in the original post
    is wrong. All the majority was doing was putting
    into practice the standard establishment left
    theory of constitutional interpretation, which
    is that the constitution is a “living document”
    that has to change with the times in response
    to chaning social mores and policy concerns.
    This is why you get all the silly policyspeak
    in the decisions, which is not, to answer Jeff
    Taylor’s implicit question, very unusual. They
    do bad sociology, bad sociology, bad economics
    and all sorts of other bad things in their
    decisions too.

    It all became pretty clear to me when I actually
    read the “Wickard v. Filburn” decision that ruled
    that a farmer growing crops on his own land for
    his own consumption was engaged in interstate
    commerce and so could be regulated by the
    federal government under the interstate commerce
    clause. This is one of the key New Deal (the
    American one, not the British one) decisions
    that brought an end to serious supreme court
    scrutiny of economic legislation. In this case,
    they have the economics right, but the original
    intent wrong.

    As most folks who read here would likely agree,
    it seems to me that if the constitution is not
    a contract, which is the opposite of the “living
    document” view, then there is little point in
    having a supreme court empowered to strike down
    legislation. It just becomes a way for elites,
    in this case the east coast moderate left
    establishment, to impose its views in preference
    to those of the people as expressed through
    the legislature.

    Jeff

  14. I’m not sure I buy the argument that the Supremes can’t parlay their positions into big money. How much would a big law firm pay to have a former justice as a partner? He or she probably wouldn’t even have to do actual legal work. Just put the name on the shingle, have the justice make lots of public appearances, smooze the clients and potential clients. A justice could potentially be a big rainmaker.

    Or how much would a law school pay to have a former justice? The same arguments apply here.

    But they can’t do that because none of them leave the bench while they are still mentally and physically healthy enough to be of any use to anyone else. They cling to that power.

    Their problem is that they want money and influence. They can have one but not the other, and that’s what bothers them, if anything.

  15. Jeff Smith –

    Great analysis. Currently encumbants win reelection bids 98% of the time. This isn’t good enough – so now they have enhanced protection from criticism within 60 days of those elections, bumping that 98% up by who knows how much.

    As always, the elites will hire lawyers who will devise ways for them to technically obey the law while retaining – or expanding – their influence over elections. As always, the less elite won’t have the resources to do this, and their voices will be muted by comparison.

    This SCOTUS decision is not only a calamity for the concept of free speech, it’s an assault on democracy itself.

  16. Jeff Smith –

    Great analysis. Currently encumbants win reelection bids 98% of the time. This isn’t good enough – so now they have enhanced protection from criticism within 60 days of those elections, bumping that 98% up by who knows how much.

    As always, the elites will hire lawyers who will devise ways for them to technically obey the law while retaining – or expanding – their influence over elections. As always, the less elite won’t have the resources to do this, and their voices will be muted by comparison.

    This SCOTUS decision is not only a calamity for the concept of free speech, it’s an assault on democracy itself.

  17. Exerpted from a longer post here.

    One of the fundamental principles upon which this republic was formed was the idea of the rule of law as opposed to the rule of men. This is most often expressed with the notion that no man is above the law. But a more important principle – perhaps the most fundamental idea of the Constitution is that the government itself is not above the law. That idea has been officially pronounced dead by a 5 justice majority on the Supreme Court.

    From the legislative branch that passed the act, to the executive branch where the measure was welcomed and signed into law, to the judicial branch where it was upheld by the ruling of 5 individuals, government has placed itself above the law. Its assumption of the authority to abridge our rights as individuals has voided the concept of rights and left us with a few tenuous freedoms that we will enjoy as long as they do not conflict with a compelling interest of the state. The Constitution has become functionally irrelevant and the rule of law has been deposed by the rule of man

  18. I am dumbfounded. I used to want to run for office, change the world, blah, blah, blah. This just reinforces the fact that they are all full of crap and that it is getting to be eerily like some damn ann rayn novel. What the hell, Kerry is going to pursue “licensing” for the media. Good bye internet news. Halliburton overcharging the army? Sweet, more corruption. Social spending through the roof. Good luck paying that off, kids. 21 gun salute for the chinese who are threatening to make a formerly “independent” taiwan glow? sure, we’re fighting a global war for freedom and democracy. No, we can’t risk standing by our principles.

    BTW, Slippery, democracy licks. Democracy gives us these damn problems and increased corruption. Give me republicanism.

  19. I forgot to add, that the sooner the boomers and “greatest” generation are gone the better off this country will be. They are doing nothing but looting, pillaging, and setting up their own little fiefdoms all in the name of the law. BS>
    Also, this is another example of why the Bill of Rights was a very bad idea. It fenced in everyone’s legal rights and let gov’t have the rest. It should have been the opposite.

  20. “I forgot to add, that the sooner the boomers and “greatest” generation are gone the better off this country will be.”

    With all due respect, what evidence do you have that Generataion X and Y are going to be any better?

  21. Mark-
    You’re absolutely right. The boomers raised the x and y.

    The subtle difference is the numbers. Even if the 20 somethings were all die hard libertarians, they lack the numbers to take away social benefits that favor the older folks. Boomers and the greatest generation simply have far many more votes, plus they are living longer. No offense to the boomers out there, but your generation hasn’t been the most selfless of groups. It is a troubling time to have to live with a “me generation” legislating their wants.

    Sad to say the only way this madness will end is when people turn to Civil Disobedience. Not nescesarily violence either. You simply don’t obey. And that doesn’t guarantee anything either. Thoreau, didn’t you write a fascinating Romantic take on Civil Disobedience?

  22. It fenced in everyone’s legal rights and let gov’t have the rest.

    Not true. The Tenth Amendment was added for the express purpose of blocking this interpretation.

    Of course, the Tenth was read out of the Constition at the first available opportunity, but the Founders saw this risk and addressed it as best they could.

  23. True, but if you look at the initial debates, they were over the notion to even have a bill of rights. The 9th and 10th were a compromise to the anti and pro bill of rights camps.

    And as you point out the 10th was scrapped quickly. Looking back, the anti-bill of rights crowd might have actually been right. But that’s like saying if the US hadn’t gotten into WWI, communism and fascism wouldn’t have swept the world.

  24. I’ll second yelowd and say that the boomer generation is absolutely more self-absorbed and rapacious than X and Y. The same hippie wingnuts taking showers in the woods in the 60s are now driving SUVs with “Free Tibet” stickers on them and ransacking younger generations.

    Yes, by all means – good riddance, boomer bastards.

  25. “Since when is money speech?”

    To say that money isn’t speech is sort of like saying that I have a right to freedom of the press, but I don’t have the right buy ink or paper. As long as the people demand something in exchange for access to the media, then saying that I can’t purchase access is tantamount to censorship.

    “Why do Mommy & Daddy Warbucks get more of a say just because they have more money?”

    Why shouldn’t they? They’re the ones who are paying most of the taxes in this country as opposed to the filthy bums who benefit from the “charity” of the state.

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    DATE: 01/26/2004 01:55:05
    There are no weird people – some just require more understanding.

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    IP: 213.228.213.160
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    DATE: 05/20/2004 06:52:25
    People are exponentially funnier when they’re in rant mode.

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