The Legal Profession and the Case for Fundamental Reform: Ideological Polarity and Packing the Supreme Court

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Americans have historically held the judicial branch of government in highest regard because of its perceived aloofness from politics. Unfortunately, perceptions of the Supreme Court are changing. Dean Erwin Chemerinsky of Berkeley Law School characterized justices on recent courts as politicians in fine robes, who simply reflect the views of the president who appointed them. In the aftermath of the rushed confirmation of Justice Amy Coney Barrett, some Democrats raised the possibility that they might attempt to "pack the court" to redress the philosophical imbalance, and they have recently introduced legislation to expand the Supreme Court by four justices.

Trouble at the Bar assesses whether justices are behaving like politicians by contributing to the debate on whether they make ideologically based rulings. We then consider whether it is appropriate to restructure the Supreme Court.

Judge Richard Posner argues that, because justices do not share a commitment to a logical premise for making a decision (for example, cost-benefit analysis), they must be ideological because they cannot be anything else. Justices' ideological instincts are derived from the fact that they have been trained and gained work experience as lawyers and judges in lower courts. This background reduces the effect of scientific influences, especially mathematics and statistics, to mitigate those instincts.

For example, when presented with basic statistical evidence of anomalies in the 2019 election of Georgia's lieutenant governor, a Georgia Supreme Court justice said: "We are all lawyers. We are all judges. You are making us shudder with math." Another added, "I am one of many people who went to law school because I was told there would be no math. Yet here it is." It is hardly surprising that after advancing to his position as Chief Justice of the U.S. Supreme Court, John Roberts' response to statistical evidence showing Wisconsin's voting districts had been warped by political gerrymandering was to dismiss it as "sociological gobbledygook," when, in fact, it was a conclusion based on basic mathematical methods.

The late Justice Antonin Scalia dismissed criticisms of being an ideologue by characterizing himself as an "originalist"—that is, he adhered to the original meaning of the text of the U.S. Constitution and statutes enacted by Congress, not the meaning as he wished it were. But Professor Cass Sunstein countered that when cases get to the Supreme Court, the original sources often leave gaps and ambiguities. If one examines the highlights of Scalia's voting record, they simply fit with the ideologies of the Republican Party.

Recent research has addressed the issue empirically by estimating the effect of justices' ideologies on their votes before the court. Lee Epstein, Landes, and Posner performed a statistical analysis of business cases and concluded that the conservatives on the Roberts court are extremely probusiness and that the liberals are only moderately liberal. Professor Richard Epstein challenged their finding on the grounds that the authors did not control for potential selectivity bias in the case petitions that the Roberts court accepts.

Trouble at the Bar takes up Richard Epstein's challenge by estimating a joint model of justices' votes on business cases and their selection of petitions and provides strong evidence that Epstein is correct that omitting case petitions does cause selectivity bias that affects the conclusions. However, the effect is to mute ideological preferences through the petition-selection process. When we control for case selection, we find that "liberal" justices have even stronger preferences to vote against businesses and "conservative" justices have even stronger preferences to vote in favor of businesses than Lee Epstein, Landes, and Posner find. Moreover, the Roberts court has become much more polarized along ideological voting lines than the court under former Chief Justice William Rehnquist.

It is difficult to quantify the causal implications of the Supreme Court's growing ideological polarity on the nation's economic and social welfare. However, it is hard to imagine that the effects are positive if over time administrations attempt to overturn important decisions made by previous administrations, with the court abandoning a more socially desirable middle ground that forges decisions not marked by ideological splits.

Clearly, the desirable response is not to pack the Supreme Court with a balancing number of ideological justices, but is there anything constructive that could be done? Consistent with Judge Posner's view that judges should make more pragmatic, policy-based decisions, Trouble at the Bar suggests that justices should be receptive to forming and working with a panel of independent experts from appropriate academic disciplines to improve their understanding of, and the decisions they make about, cases that involve increasingly complex social and technical issues but may evoke ideological preferences.

So-called "virtual briefings" are currently being provided online to influence justices and law clerks outside of traditional briefing rules. The expert panels that we recommend are not intended to challenge the court's authority and the rule of law; instead, they would provide an additional opportunity for justices to benefit from experts in an environment that may facilitate more targeted and balanced discussion. For example, we envision "packing" the court with economists who serve on expert panels to provide advice to all justices about the efficiency and distributional effects of potential rulings. A formal process could be established for long and short-term appointments.

It is useful to clarify and strengthen the proposal by raising and responding to some plausible objections to it.

  • It could be argued that economists are also ideological. I do not disagree, but the issues facing the court that involve economists are likely to be debated over empirical methods and findings and the scientific basis for disagreement will be clearer and perhaps easier to resolve than ideologically based disagreements over legal scriptures.
  • The Supreme Court is supposed to be narrowly constitutional and a check within the structure of governance. Certainly, however justices are free to be as narrow or broad as they want to assess cases brought before them. So, why not draw on expertise, where appropriate, which could lead to a more informed and socially desirable decision?
  • The Supreme Court is supposed to make legal decisions not economic decisions. Agreed, but it would clearly be useful for justices to know whether specific legal arguments and rulings would be at variance with economic efficiency and progressive redistribution goals. The law is generally not so narrow that it prevents those considerations and new precedents that could be more aligned with economic objectives. Justices also could simply reject those considerations, but at least they would be aware of them.
  • The approach is too academic, and it will turn court deliberations into a seminar with no practical insights. I am not suggesting that the expert panels should be restricted to academics. They should include economists from all walks of life that could provide insight on a case.
  • Finally, the legislative branch is supposed to contain experts and look at the big picture. Given that the legislative branch has become fractured and has not been objectively debating policies for decades, it is even more important for the judicial branch to step up and increase its engagement with experts and consider the big picture.

Of course, cases are likely to call for experts in several disciplines besides economics. Over time, justices would develop the habit of integrating basic legal doctrines, where appropriate and permissible, with the wisdom accumulated from a broad range of intellectual perspectives. The thought process that this inculcates could mitigate the influence of ideology on the court and lead to more rulings that truly benefit the nation.

NEXT: Today in Supreme Court History: April 28, 2015

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  1. “statistical evidence showing Wisconsin’s voting districts had been warped by political gerrymandering”

    I’m a professional engineer, quite comfortable with math, and I have an interest in the topic of gerrymandering and voting systems. Let me assure you that there was quite a bit of ideology concealed in that bit of math the Justices were being asked to accept.

    Rather than calculating the divergence between the projected outcome of elections with the proposed maps, and maps that were drawn without regard to political concerns, they had calculated it relative to the outcome you might have seen if the entire population of the state had been randomly redistributed, wiping out all actual facts of political geography.

    This effectively built into the metric a demand that the districts be drawn to negate the Democratic party’s problem of inefficient distribution of voters.

    So, they were right to distrust the math.

    1. “Inefficient distribution” should be irrelevant. If, say, 60% of voters in a given statewide election vote for a particular party, then assuming normal circumstances the legislature should be roughly 60% of that party. It’s not going to be perfect; you might have fairly drawn district lines that result in 55% or 65% for that party. But you should not have a situation in which 60% of the voters vote for one party and the other party then forms a legislative majority. That is completely contrary to the whole concept of democratic governance.

      1. ““Inefficient distribution” should be irrelevant.”

        And THAT is the ideological stance being smuggled into the math.

        1. Any position at all on any issue at all is going to be ideological, but that doesn’t answer the question of whether, on the merits, it’s good policy. In my hypothetical, why should 40% of the voters dictate policy to the other 60% just because of where they live?

          1. But the Court isn’t trying to answer the question of whether, on the merits, it’s a good policy. That’s not their job.

            They’re trying to answer the question of whether it’s a constitutional policy. “Good” policy is an elected branch call.

            The only way to draw maps that negate the inefficient distribution of votes on the ground, is to draw maps based on voting patterns, in order to achieve a specified outcome. But, that’s exactly what Gerrymandering IS!

            In Wisconsin, the Democrats actually hired an expert map maker to draw the map most favorable to them given the constraints of equal population and compactness. (IE, no salamander shaped districts!) It had a 2% pro-Republican efficiency gap!

            The median map, based on a random generation of computer maps, had more like a 5% pro-Republican gap. The criteria they had selected for detecting “gerrymandering” started half-way to declaring any random map a pro-Republican gerrymander, while the Democrats, under it, could draw the map as favorable to themselves as possible, and never risk their map being found to be a gerrymander.

            It was quite smart of the Justices to realize that, just because you’re doing math, doesn’t mean you haven’t built the result you want right into the equations you chose to solve.

            1. I’m not a pure populist – I think one of the enduring geniuses of the Founding (post Civil War’s reFounding) was the balance between populism and elitism. But the GOP is actively anti-populist, and that’s not right.

              Krychek_2 seems to be using good as a proxy for ‘allows for representation,’ which absolutely has a Constitutional issue to it.

              Yes, Dems, having more voters, can oftentimes afford to advocate for distributions that more reflect the popular vote. But after Baker v. Carr the onus not on them but on the other side to show their less popularly-reflective maps are still providing representation.

              random generation of computer maps Was this some kind of monte-carlo average or just a random map, because those are different things.

              It’s notable that the GOP are the ones coming out against nonpartisan/bipartisan redistricting panels. Not surprising, since they’re in the minority. But it does put a bit of a spin on their protestations that the Dems are just as bad. Because they aren’t, because they can afford not to be.

              1. After California’s “nonpartisan redistricting” which was actually twisted and perverted into being partisan for the Democrats…it’s not a surprise.

                1. I haven’t actually tried to do it so I may be mistaken, but I’ll be surprised if California lines can be drawn at this point in such a way as to give the GOP a legislative majority. Not, at least, without having districts that look like lobsters.

                  1. You’d have to get rid of the jungle primary, certainly, for the Republicans to even have a chance. My brother lives there, and he frequently complains about the fact that, come November, there’s nobody on the ballot he would want to vote for, because that jungle primary kept all the Republican candidates off the general election ballot.

                    That might even be considered a vote suppression technique… Your party isn’t going to get a good turnout if no members of your party are on the ballot!

                    1. Amazingly I have to agree with Brett. The “jungle primary” is an abomination designed to keep R’s off the California ballot very early in the game.
                      “That might even be considered a vote suppression technique… Your party isn’t going to get a good turnout if no members of your party are on the ballot!”
                      Not “be considered.” It is a voter suppression technique

                  2. This is what I’m talking about.

                    Gerrymandering by “non-partisan” commission.

                    https://www.propublica.org/article/how-democrats-fooled-californias-redistricting-commission

                  3. In 2020 congressional races, the only districts that had D v. D were…
                    District 12, in San Francisco.
                    District 18, also in the San Francisco area.
                    District 29, covering parts of LA.
                    District 34, entirely in LA.
                    District 38, still LA. A Republican didn’t even run in the primary in this one.
                    District 44, still LA county.
                    District 53, mostly San Diego, some suburbs.

                    As you can see, every single district that didn’t have a Republican in the general was part of a major city. And as should have been obvoius, in every single one of those, the highest-vote-getting Republican didn’t beat the second-highest-vote-getting Democrat.

                    Hell, in all but two of those districts, you can roll-up all the Republican votes, and they still wouldn’t make second place.

                    If your brother seriously thinks it’s the Jungle Primary making Republican non-competitive in those districts, he’s an idiot.

                    1. EE,
                      It is the independent voter who is especially screwed by the jungle primary.
                      It is a far different thing for a candidate to compete against a jungle of animals than against a single opponent.
                      So the jungle forces a likely minority candidate to spend all funds up front so that s/he has no money for the general election and the plausibly D candidate wins by default.
                      It is worst than simple voter suppression

                2. California may have done some shenanigans, such would not surprise me; their effectively one-party system is a prime example of why each party needs the other (though the jungle primary has helped some).

                  If they did, then the thing to do is marshal arguments against that redistricting panel, not against them generally.

                  So, do you have any evidence of this Democratic partisanship in the CA redistricting? Again, I wouldn’t be surprised, but I’d like a bit more than your bare accusation.

                    1. I’m sure it has; I don’t exhaustively study the forums.

                      Yeah, this seems legit and is pretty bad. But the skullduggery that had to be marshalled rather shows that nonpartisan commissions tend to be just that, and they take work to subvert. Which makes me think such things are avoidable in the future, especially using the mathematical criteria being discussed below.

                    2. They don’t take a lot of work to subvert.

                      The advantage of my proposal, (Generate a bunch of random maps that follow the law, let each party eliminate some, then pick one at random.) is that it doesn’t require the process to be scrupulous, just modestly transparent at the end.

                      It’s a lot harder to subvert because of that.

                    3. Did you read the article? They did a lot of work!

                      I’m find with your proposal, and agree with you that it’s good policy but not Constitutionally mandated.

                      But jungle primaries are good in certain situations, of which CA is one.

                  1. “jungle primary has helped some”

                    Yeah, by making US senator a 2 dem race, it depresses GOP turnout for other races including president. Then Clinton can be the “popular vote” winner from the manipulated California results.

                    Jungle primary was a Jim Crow device and is still bad.

                    1. Bob, the GOP is dead for now as a statewide party in CA.

                      The way to bring it back to life is by having elections with 2 viable and ideologically different opponents, and peeling off votes that way.
                      Continually running your head into a brick wall is not going to get you where you want to go.

                      I’d support the same thing in Oklahoma.

                    2. “GOP is dead for now as a statewide party in CA”

                      Yes, rigged redistricting commission, rigged jungle primary and ballot harvesting have done their work.

                    3. LOL, that’s not why it’s dead, Bob.

                    4. “that’s not why it’s dead”

                      Right, I forgot about the children of millions of illegal immigrants.

                      Would it not be easier
                      In that case for the government
                      To dissolve the people
                      And elect another?
                      Bertolt Brecht, ‘The Solution’, 1953

                    5. “with 2 viable and ideologically different opponents, and peeling off votes that way.”
                      S_0, that procedure is is purposefully highly improbable with the jungle primary and rank choice voting.

                    6. If you realize that the current GOP is not viable at all statewide, depressing turnout is a nonfactor.

                      I want a California GOP that can compete statewide. I do not like the crappy one-party state with all the pettiness and corruption that entails.
                      States with a strong ideological lean have two kinds of opposition parties: an insular one that defines itself as an alienated minority and will never change, or an opposition party that may not be perfectly aligned with the national party but is a viable alternative within the state.

                      Jungle primaries offer a change, after some cycles, for the second. Any policy debate between 2 candidates is going to come down along perceived ideological lines – someone is always going to be more left than the other. That cleavage, (and some rebranding away from the national and still Trumpy party) is the way back, IMO.

                      I don’t live in CA anymore, and wasn’t very political when I did. I don’t have a dog in this fight, just a game-theoretical sense that jungle primaries are actually an avenue for more ideological diversity when you have a system where one party has no hope.

              2. Evaluating partisan gains from Congressional gerrymandering: Using computer simulations to estimate the effect of gerrymandering in theU.S. House

                They were randomly seeding a map of precincts, then annealing the resulting equal population maps to minimize perimeter while maintaining equal population. They’d then apply historical voting data from the precincts to calculate a hypothetical election result, and generated a statistical distribution of results.

                Note that they ended up agreeing that Wisconsin was gerrymandered. It clearly was. But, so was the Democratic counter-proposal.

                1. I presume you linked to the methodology; I didn’t see it applied to the Democratic plan in Wisconsin.

                  I think I’m willing to walk with you that efficiency gap isn’t a great metric to judicially instantiate, though it does look like it still has some probative value.
                  But the GOP argument that gerrymandering is totally cool so long as it’s not explicitly racial is also really dumb.

                  1. Yeah, I’m not on board with defending gerrymandering, I think the maps should be drawn without regard to past voting patterns, and let the chips fall where they may.

                    Here’s a more Wisconsin-centric analysis. Yes, that first link was just to provide the methodology. Slightly different numbers emerge from this analysis, it used voting data from a different year, and was targeted at the state legislature map.

                    You can see from figure 2 that the political geography of Wisconsin absolutely favors Republicans, but the map they propose went way past that, it was absolutely a gross gerrymander.

                    I think the Democrats might actually have won the case, if they hadn’t so nakedly advocated a gerrymandering test that systematically favored themselves, would have let them gerrymander to their heart’s content in WI without being called out for it.

                    1. The foundation is well funded for this fight. Its supporters include longtime supporters of the Democratic Party: […] as well as the American Association for Justice (previously known as the Association of Trial Lawyers of America).

                      Holy ****, the sophistry of greed.

                  2. Wait….why not? = …gerrymandering is totally cool so long as it’s not explicitly racial…

                    I am not being facetious. Gerrymandering has been around since the founding of the Republic. People currently in power want to ‘stack the deck’ so they remain in power. Is that ‘wrong’?

                    To me, the racial gerrymandering that happened was unconstitutional. It was wrong to draw boundaries based on race. Can’t do that. So leaving aside race, why can’t there be gerrymandering.

                    That gerrymander cuts both ways, doesn’t it?

                    1. Because those seats belong to the people, not the politicians.

                      It reminds me of 9-year-old Queen Wilhelmina asking her mother, as she watched a cheering crowd outside the palace following her coronation, “Mama, do all those people belong to me?” To which the Queen Mother responded, “No, dear, you belong to all those people.”

                      Which is the basic answer to what’s wrong with gerrymandering.

                    2. K-2
                      “Because those seats belong to the people, not the politicians.”
                      That is a slogan, not a reason

                    3. It is a reason. For whose benefit are those seats being apportioned? The politicians, or the people?

                    4. Krychek_2….To paraphrase the old lady in the Wendy’s commercials. When it comes to your answer, “Where’s the beef?”

                      Gerrymandering cuts both ways. If it is not being done because of race (which is illegal), then why is it wrong? If the people don’t like what their state legislators are doing vis a vis redistricting, they can vote them out.

                      You want to try again?

                    5. Having vote outcomes swing based on who holds the statehouse in decadal years is an arbitrary and unfair metric.

                      There’s a problem of fundamental fairness in technical machinations screwing with people’s power to participate in their own governance.

                    6. “If it is not being done because of race (which is illegal)”

                      LOL! Illegal? It’s mandatory. What do you suppose the Voting Rights Act’s “majority minority” districts are, if not racial gerrymandering? They’re nothing else!

                  3. Why is it dumb?

                    Did the constitution outlaw politics? Everything I don’t like should be unconstitutional isn’t a coherent judicial philosophy.

                    The thing is when the people want to get rid of gerrymandering they have the power to do it and have done so in many states.

                    1. “when the people want to get rid of gerrymandering they have the power to do it and have done so in many states.”

                      The cure is worse than the disease. Potemkin commissions. “Independent” members of which are just stealth party activists

                    2. Baker v. Carr.

                2. Jeez, Brett, that sounds like a pretty non-partisan method. I’m impressed. It ought to be tried everywhere.

                  1. It’s not impossible to objectively identify gerrymandering. The problem is that doing so doesn’t really solve the problem Democrats are trying to solve, which isn’t gerrymandering, but instead the inefficient distribution of their voting base.

                    Those 90% plus districts really kill the efficiency of your voting base in any first past the post system, nearly half your voters are just ‘bouncing the rubble’.

                    As a result Democrats keep trying to re-define “gerrymandering” to make not negating that inefficient distribution’s effects into a crime. Essentially defining gerrymandering so as to mandate it in their favor.

                    1. Additionally, many of these 90% plus districts are because of the minority-majority requirements for many districts, the requirements that Democrats promoted and asked for.

                      But now that they have them, they’re upset by the result.

                    2. “The problem is that doing so doesn’t really solve the problem Democrats are trying to solve, which isn’t gerrymandering, but instead the inefficient distribution of their voting base. ”
                      Looking at maps of major cities and racial or economic distributions, one would be hard pressed to come to any other conclusion

                    3. Brett, calling the distribution “inefficient” begs the question. It’s only inefficient if one first accepts that the district lines should be drawn in a certain way.

              3. We’re not anti–populist. We just are populist using a set of people that doesn’t include everyone, as much of the population are American in name only.

                1. Your ‘we’ is basically just you, at least around here.

                2. Just out of curiosity, if we woke up tomorrow to find that Blacks and Hispanics had suddenly started voting Republican in large numbers, would you still be opposed to them being part of the political process?

                  My grandfather opposed allowing women to vote, because he was a political conservative and he knew women were likely to shift the vote to the left. And he was very up front about it: He wanted his side to win elections, and so keeping people who wouldn’t vote his way from being able to vote at all was one way to accomplish that.

                  Is there a similar dynamic at work with keeping minorities from voting? Because my suspicion is that if they ever do start voting Republican, the GOP wouldn’t be able to get them registered and to the polls fast enough.

                  1. Of course. But if they were voting Republican in large numbers, that would mean they weren’t a largely criminal, dysfunctional population, as that population isn’t attracted to conservative ideals.

                    I oppose allowing women to vote for the same reason. They’re too emotional and left leaning.

                    1. So only people who agree with you should be allowed to vote.

                    2. By the way, as far as being criminal and dysfunctional, I have four siblings and am the only Democrat. My Republican siblings include a former teacher who lost his license for molesting a student, a convicted felon (theft over 10k), and a woman with multiple disabilities on SSI who votes GOP because she hates immigrants. Of the five of us, the only two who have never been a major drain on the system or been in any real trouble are evenly divided as to party affiliation. The dysfunctionals and criminals all vote Republican.

                      Now, I realize the plural of anecdote is not data, and other families may have different experiences. But still, every time you claim that the Democrats are the party of crooks, I think about my family and laugh.

                    3. No, only the people who have the capacity to agree with me. There’s a difference. For example, the Irish Catholic population is split pretty evenly politically.

            2. Brett, you still haven’t answered the question of why 40% of the population should be allowed to dictate policy to the other 60%. Other than that you like the result.

              1. As I’ve said, I’m a proponent of PR. I’m also strongly in favor of the principle of subsidiarity; Every government action should be undertaken at the lowest level feasible. And not by government at all, most of the time.

                I would certainly let a well distributed 40% of the population veto policies favored by a geographically concentrated 60%. On the basis that people living in one place should not be able to lord it over people living in a different place, just because they marginally outnumber them.

                I do understand that Democrats want to rule the entire country from their urban strongholds, without the bother of winning over people living outside urban centers. I’m not sure why everywhere else in the country should cooperate in letting them do it, though.

                1. Or why the rural areas should cooperate in providing the urban centers food, water, or energy.

                  1. Because rural economies would crash if they didn’t, in which case they’d need the urban areas to bail them out. Now there’s a thought; maybe California should stop subsidizing Alabama. Check out which states take back more from the federal government than what they pay to the federal government in taxes; you’ll find that a lot of red states pretty much run on tax dollars from blue states.

                    1. You’ll find that it looks that way because the federal government has large military bases in those states, and you’re counting the spending on those military bases.

                      But, I agree, no state should be required to subsidize any other. That, in fact, is the actual intent of the “general welfare” clause.

                      The quickest way to accomplish that would be to minimize federal spending.

                    2. Anyone who puts forth this old and discredited lie is not worth listening to. States don’t subsidize anyone, as states don’t pay taxes, and receive very little in transfer to the states. What you’re counting is taxes paid by individuals and received by individuals, and looking at what states they live in. Which of course, is completely irrelevant.

                    3. Brett, not to mention that if a person works his whole life in New York or California, all of the taxes he pays in while working are considered “taxes paid by a blue state” and then if he retires to a low tax area like Florida, Texas, or Wyoming, the social security and Medicare expenditures on him are considered to be “transfers to a red state.” It’s dishonest on its face, and anyone who uses this tired tripe is either dishonest or ignorant.

                    4. “rural economies would crash if they didn’t”
                      In which case you’d be starving in the dark and cold. Open your narrow mind.

                    5. Don, yes. These fools like to harp on the percentage of GDP that is supposedly generated in “blue” counties, but how could Facebook coders generate advertising revenue if the power and food was cut off?

                  2. Or why the rural areas should cooperate in providing the urban centers food, water, or energy.

                    I believe the incentive for such cooperation is called a “paycheck”.

                    1. You believe wrong. The water wars in CA are a testament to your error

                2. Brett, on what principled basis are you sure minorities living, “everywhere else in the country,” should enjoy power to thwart majorities who live everywhere else than the minorities do? What principled distinction gives one set of acreage a sovereign advantage over the other?

                  And by the way, why are vast unoccupied acreages in the countryside allocated in your system exclusively to the electoral advantage of folks you prefer seeing empowered. Why not give those other citizens you don’t like equal credit for some of that empty, decision-making acreage upon which you apparently base your system?

                  1. The same principled basis for China not getting to rule over its neighbors: People HERE should not rule over people THERE without their consent.

                    1. The same principled basis for China not getting to rule over its neighbors: People HERE should not rule over people THERE without their consent.

                      What utter and complete idiocy. People in China don’t rule over Americans because we have no agreement to obey a common set of laws. People in Wyoming and North Dakota and New York do have such an agreement, and you apparently think it’s just fine for the WY and ND voters to outvote the New Yorkers, because the states are bigger geographically, or something.

                      People HERE should not rule over people THERE without their consent.

                      Yet you’re fine with it as long as the HERE in question is rural America, and the THERE is the cities – those “strongholds” you like to refer to.

                    2. “People in Wyoming and North Dakota and New York do have such an agreement”

                      And it happens to involve features such as the Senate, the Electoral college, enumerated powers and the 10th amendment…

                      All the things you like to complain about, and are down with undermining.

                      You have the House, so that things can’t pass Congress without an over-all majority support, and you have the Senate, so things can’t pass Congress unless that support is widely distributed, too.

                      It’s a veto, not an affirmative power to enact, that you’re complaining about.

                      Because, as I said, you don’t want to rule yourselves, you want to rule everybody else, too.

                  2. Why not work towards restoring the system where one acreage concentrates on ruling their acreage and lets the other rule theirs? Cities rule cities, towns rule towns, and sparse areas make rules that make sense for themselves – leaving very few decisions up to the central gov. Seems we are moving away from this ideal – the “principle of subsidiarity” as Brett puts it.

                    1. Because what worked in 1789 does not work as well now. Conditions were different then, and there are far more problems that require a national solution. Just from a law enforcement perspective, the fact that anyone with an internet connection can commit crimes hundreds or thousands of miles from where they live, and across multiple state lines, means that local policing ain’t what it used to be.

                    2. I see no evidence to support the assertion we need top down centralized govt and that we are better off with it. Sure its convenient for big business, but at the expense of individual freedom and choice. I would argue the other way, people are way more mobile now and moving to a like minded community is easier than in 1789.

                    3. Let’s start with letting cities rule themselves without interference from state legislatures.

                      Those, like Brett, who advance the arguments you make quickly change their tune when some municipality enacts ordinances they don’t like, or tries to run an election in a way that doesn’t make it hard for people to vote.

                3. I can see some issues being significant enough that 40% should have a veto, but the 60% should not have to get permission from the 40% every time they need to blow their nose, which is what we have now. And as far as people from one place being able to make decisions for people from other places, the place we are talking about is the United States.

                  1. Look, if you don’t want ‘red’ states to be able to stop you from blowing your noses in ‘blue’ states, blow your state nose, instead of the federal nose.

                    1. My state can’t enact national policy. More to the point, as a general proposition, 40% should not be able to thwart the will of the 60% regardless of where you draw the lines.

                    2. What if half of that 60% were made citizens against the will of the 40%? Ask the people whose ancestors were here prior to 1965 if they ever consented to the mass immigration of tens of millions of illiterate non-white third worlders

                    3. You’re assuming that the 40% consists of vile, ignorant racists. No doubt some are, but all of them? You slander your fellow citizens.

                    4. Sorry, but it’s not racist to oppose the immigration of people who will change your form of government and culture permanently.

                4. I would certainly let a well distributed 40% of the population veto policies favored by a geographically concentrated 60%.

                  Why? That makes no sense. There is nothing magical about geography except in your head.

                  Consider taxes. There has to be some rate. If 60% want to set it at some level, why should 40% get to “veto” that? There is no inherent virtue to whatever current rates are. Same with the defense budget, say.

                  I do understand that Democrats want to rule the entire country from their urban strongholds, without the bother of winning over people living outside urban centers. I’m not sure why everywhere else in the country should cooperate in letting them do it, though.

                  What Democrats want is for the votes of people living in “urban strongholds” to count as much as the votes of people who don’t.

                  Your very choice of words betrays your prejudices, Brett. When you refer to “urban strongholds” you make it sound like Democrats are conquering invaders, maintaining power from a strategic series of forts, while the “real Americans,” the hardy yeomen, fight desperately to cling to their independence and principles.

                  That’s ethno-nationalist, anti-democratic, bullshit. Urbanites are as much American as you are. A city dweller should have as much political influence as a farmer.

                  1. What Democrats want is for the votes of people living in “urban strongholds” to count as much as the votes of people who don’t.

                    Brett’s making the point, I think, that there is not an easy way to do this and keep districts spatially-based, due to the concentration of Dems on the land.
                    He therefore argues that some differential favoring R’s based simply on the rural-urban divide is inevitable. To me, he sounds pretty convincing on that point.

                    Though that doesn’t mean the GOP’s recent and extreme partisan gerrymandering isn’t unconstitutional.

                    1. that there is not an easy way to do this and keep districts spatially-based […]

                      Sure there is.

                      Multi-seat proportional-vote districts. Districts of about five seats makes meaningful gerrymanders basically impossible, you can keep districts geographically sensible, and minorities (that make up at least a fifth of the population) in both urban and rural areas get representation.

                      We have the solution, and have for many decades now. We don’t use it because it makes it harder for parties to control the game.

                    2. Multi-seat proportional representation IS what I advocate. My point has been that, under first past the post single member districts, what the Democrats are complaining about isn’t gerrymandering, it’s the inevitable consequence of their having areas that they totally dominate, and the Republicans not having such areas. Under the current system, if you get 98% of the vote in a district, you’re wasting votes.

                      You’d actually have to gerrymander to eliminate that disadvantage! Which is why they keep trying to change the definition of “gerrymander” to “not reproducing proportional representation”, instead of “drawing districts to guarantee an outcome”.

                      But you’re wrong, parties can control the system under PR, too, by rigging ballot access and party lists. The reason Congress outlawed PR for federal elections is that all the incumbents got elected first past the post, and didn’t fancy their personal chances under PR.

                    3. “proportional-vote districts”

                      Recipe for chaos. Countries with multi parties and proportional-vote districts are increasingly unable to form governments at all. See Israel with 5 elections in two years, or Belgium a few years back.

                  2. “There is nothing magical about geography except in your head.”

                    There’s nothing magical about geography. It is very real and tangible and important. But as always, the imperialists and the globalists want you to ignore it because they want their rule to expand over the globe.

          2. “why should 40% of the voters dictate policy to the other 60%”

            Republican Charlie Baker got 66.6% of the vote in the 2018 election — so by your measure, 66.6% of the Massachusetts legislature should be Republicans, and not 7.5%.

            “Why should 33.1% of the voters dictate policy to the other 66.6%”??

            1. You apparently don’t understand the structure of government: Charlie Baker isn’t the legislature. They are different branches. How many votes he got isn’t relevant to how the legislature should be apportioned.

              1. Stop changing the rules. At the top of this thread, you said “If, say, 60% of voters in a given statewide election vote for a particular party, then assuming normal circumstances the legislature should be roughly 60% of that party.” Baker was elected in a statewide election vote. No state legislator was elected in a statewide election vote. That’s not how they get elected. So comparing the distribution of legislators to the percentage votes received by the governor is not only entirely legitimate but just about the only way you could make the very comparison you demanded in your premise.

                1. Sorry, I assumed that it would be understood that an executive of one and a legislature of however many legislators there are in Massachusetts is not an apples to apples comparison. But since you want to conflate the two: Baker only got 66% of the vote (assuming Dr. Ed’s numbers are right; I did not bother to independently look it up) but he is 100% of the governor, so his voters actually did better in the governor’s race than their numbers would suggest. They got 100% of the office with only 66% of the vote.

                  Now do you see why it’s silly to compare an executive of one to a legislature of many?

                  1. So precisely what statewide election in MA do you think should form the basis for evaluating whether the MA legislators are being distributed fairly?

                    1. The Massachusetts legislature.

                      You add up all the votes cast statewide for all state legislative seats. Suppose a given state has 10 million voters, and, statewide, 6 million votes were cast in legislative races for Party X and 4 million votes were cast in legislative races for Party Y. The state legislature, in theory, should be pretty close to 60% Party X and 40% Party Y. It won’t be exact, but it shouldn’t be off by multiple standard deviations either.

                    2. That’s not a statewide vote. That’s an aggregation of dozens to hundreds of local votes.

                      Okay, assuming your re-definition:
                      1. There’s no reason to believe that aggregation will be any more predictive than the single vote for the governor.
                      2. Your objections about branch make no sense. The issue is party representation, not executive vs legislative power.
                      3. You’re still apparently clueless about the underlying statistics. Assuming a normal distribution, variances of 1 standard deviation should occur over 30% of the time. Variances of 2 standard deviations should occur about 5% of the time.
                      But it’s not a normal distribution because party affiliation is not evenly distributed across voting jurisdictions. What you demand isn’t even a valid goal.

                    3. It’s not a redefinition; it was you failing to understand what most other people here got just fine.

                      Yes, aggregation is more predictive than the governor’s race, because some people vote one party for governor and another for legislature. According to Dr. Ed, in Massachusetts Charlie Baker, a Republican, got 2/3 of the statewide vote, but the legislature is 90% Democrat. So apparently, a lot of Bay State voters do split their votes. Therefore, if we are talking about the legislature, the question is how legislative races went statewide, not how the governor’s race went statewide.

                      And I’ve said repeatedly that the distribution won’t be exact because there are other factors too. But when, as in Wisconsin, majority control of the legislature is by the party that only gets 40% or so of the statewide vote for the legislature, it looks suspicious. There may be other reasons for it, but partisan gerrymandering is certainly the first place to look.

                    4. This automatically disadvantages Republicans, though.

                      The Democrats have a lot of districts where they get 80, 90, even 100% of the vote. Utterly and completely noncompetitive districts where Republicans don’t even bother running candidates, especially given the way Democrats are prone to firebomb Republican campaign headquarters.

                      Republicans don’t have districts like that, so it’s worth it for Democrats to run candidates practically everywhere.

                      So the Democrats add up votes in Republican areas, and the Republicans don’t in Democratic areas.

                    5. Brett, but that’s not a structural disadvantage, though. It’s not like two senators per state in which the disadvantage is built into the system itself.

                      The central reason Republicans are disadvantaged in those areas where they are, is that they run on a platform that a majority of the voters don’t like. I would argue that that’s enough of a reason why Republicans should lose elections all by itself; if the people aren’t buying what you’re selling, you need to improve your product. Elections should be a free market in which the platform with the most popular appeal carries the day.

                      But instead, since Republicans can’t win fair elections, since they have an unpopular product, what they do is resort to things like gerrymandering to remain in power anyway. It’s as if a fast food chain with a burger no one likes got Congress to pass laws giving its competitors disadvantages.

                    6. Krychek,

                      That’s an incorrect assumption in your math. It’s not just that Republicans are “disadvantaged” in these districts. It’s that they aren’t on the ballot at all, and their votes can’t be counted because of it.

                      Let’s take an example in Massachusetts, with the state senate elections in 2020. There are 40 districts. However, in many the incumbant is running unopposed. For example, in the 1st Bristol and Plymouth District, the Democratic candidate got 100% of the vote.

                      Looking at the Presidential vote in the area, the GOP would get 30-40% of the vote.

                    7. But Republicans could run in those districts. They just choose not to.

                    8. “They just choose not to.”

                      I’ll grant that, but then there’s those pesky firebombings.

                      Democrats don’t end up with precincts that are 80, 90, and even 100% Democratic, just by being that good. There’s a large degree of intimidation involved. Once Democrats are a large enough majority in an area, being a Republican becomes hazardous.

                    9. “But Republicans could run in those districts. They just choose not to.”

                      But because there’s literally no Republican on the ballot, it’s a poor choice to use it as a proxy for the actual % of Republican vote. That’s the point to take away

                      There are additional reasons they don’t run.
                      1. There’s a quite low chance of winning. Why spend the time, money, and effort to run, for a low chance of winning? Especially for something low profile like state senate.
                      2. Due to the party system, and systemic protection by Democrats, those few that do win are essentially powerless

              2. That was your quote, not mine — YOU are the one who wants to apportion the legislature based on the state-wide vote.

                1. I want to apportion the legislature by the statewide vote for the legislature. I’m fine with vote splitting; some voters may want to vote for a governor of one party and a legislature of a different one.

        2. Oh stop it.

          It’s not “ideological.” It’s common sense that where voters live shouldn’t matter as to their influence.

          That the distribution is “inefficient” is itself ideological nonsense, because the only reason there’s a problem is that you make some assumption about how districts should be defined, or that there should be districts at all.

          You make it sound as Democrats lose because they use poor tactics, and if they just distributed their forces more intelligently they would have no complaint.

          But we’re not playing tabletop war games. People live where they choose to live. The idea that “Ha-ha, you lose because you piled everyone up in NYC or wherever. Your fault,” is ridiculous beyond belief.

          Can you possibly be serious?

          1. “It’s common sense that where voters live shouldn’t matter as to their influence.”

            Really? Voters vote for a representative based on their district. To represent…their district. Where they live. They should have influence on the representative for WHERE THEY LIVE.

          2. You’re a fool. Because leftists tend to concentrate in cities, the blue districts are bluer than red districts are red. That’s why many states have GOP controlled legislatures even though there are more Democrat Party voters. Because the Democrat districts are 90% Democrat or more.

          3. “It’s common sense that where voters live shouldn’t matter as to their influence.”

            It’s common sense that voters who live in a certain place should have influence in that place where they live, while people who live in other places should have influence where they live. It’s called self-government. The alternative is called tyranny and, carried to the extreme, globalist tyranny.

          4. “But we’re not playing tabletop war games.”
            C’mon bernard.
            Of course we are. It is just that the stakes are for real. New York city has issues far different to even a city such as San Francisco. And Chicago is different yet again. There is no reason why three urban centers should rule the US except for political ideology. That concept was just what the Constitution was designed to avoid.
            As software engineers like to say, it’s a feature, not a bug.

            1. Don Nico, that is not what the Constitution was designed to avoid. There was no urban/rural divide during the founding era. That notion played no role in founding era debates. Every state was overwhelmingly rural. The most urbanized state in the nation as reported by the first census was not Massachusetts, not New York, not Pennsylvania, but Rhode Island. But it was all relative. Rhode Island was overwhelmingly rural too.

      2. “Inefficient distribution” should only be irrelevant if the reasons for the actual distribution are unrelated to political considerations. They are not.

        1. Bear in mind one other thing: legislative districts *must* be drawn along precinct lines and preferably along municipal borders — towns & small cities do not like to be split between multiple districts. (Big cities will inherently have more than one rep.)

      3. The problem is that does not work both ways.

        The statisticians even said that 34% of Massachusetts is Republican, but it was impossible to draw a map with 33% of the seats going that way. Impossible.

        So if Republicans cannot be proportionally represented in any map for that state, is it fair to adopt proportional representation at all? How exactly does that work? Some states will be proportionally represented, for others its impossible. That does disenfranchise some people.

        1. If it’s actually impossible then that’s a legitimate reason not to do it. But most of the time, we’re not talking about something that’s impossible; we’re talking about those in power deliberately drawing lines to stay in power. Voters should pick their representatives and not the other way around.

          I myself favor what I call the perfect square rule: The shape of a district should be as compact as possible to look like a square as closely as possible. Will that always be feasible? No. Will it always produce balanced results? No. But neither should we have districts that look like lobsters, so it would at least be an improvement.

          1. I agree that using regular geometry and natural boundaries are best way to draw maps.

            1. The issue is that those are two differing, oftentimes disagreeing metrics.

              In this modern era of GPA and whatnot, I prefer the first to the second, myself.

              1. Goal should be to draw a regular shaped map that people would look at and it makes sense to them AND that groups people into common living conditions (rural vs urban) so they have representation.

                1. Rural vs. urban is not an either-or function. People tend to live like their neighbors, which is why geometrically cognizable seems to address that issue just fine to me.

                  In fact, the main place I’ve seen people not living like their neighbors is within cities – the ‘wrong side of the tracks’ is an urban thing.

                  1. That’s just because, at high population densities, the local differences get spacially compressed. You’ll see the same variations in rural areas, but on the scale of tens of miles, not thousands of feet.

                    1. That makes sense.

          2. Why should they be compact?

            What is the advantage?

            1. In principle, congressional districts are supposed to represent…districts. Areas of people who have like interests, needs, responsibilities, etc.

              The needs of a rural area of Wyoming are quite different from the needs of a tightly packed area of Manhattan. The needs of an area on the Mexican border are different from those on the Canadian border. By electing representatives for these areas, the needs of the people from these areas can be represented fairly.

              By having the areas be reasonably compact, it can be ensured that a district isn’t being forced to represent two distinctly different areas, with different needs.

              1. But only some interests, a decreasing number, are geographically based.

                1. If that hypothesis were true, you would have a strong point. I see little evidence that it is true, however. Most interests that I see are locally based – or at least, have locally-based variations that should inform the national decision.

                  1. Most interests that I see are locally based – or at least, have locally-based variations that should inform the national decision.

                    I don’t think that’s true at all. Differences over fiscal policies, defense policies, entitlements, are not inherently regional. To the extent opinion tends to follow regional lines it’s not because of anything specific to a given region. AL and MS are red states, MA and NY are blue, but that has nothing to do with climate or the agricultural products or the like. It’s just political winds.

                    And to the extent there are real variations, there is a difference between “informing” national decisions and controlling them. Should fossil-fuel producing areas control environmental policy?

                    1. Of course it’s true. They may not be “inherently” regional, but there are regional variations which will play a major role.

                      “Differences over fiscal policies, defense policies, entitlements, are not inherently regional.”

                      If your district is home to a major military base, or a large percentage of veterans for example, you’re going to fight particularly hard to keep that base open, or to keep your VA benefits up. These are your voters, your constitutents. You’re representing them, and if you fail to, they’ll vote you out.

                      ” AL and MS are red states, MA and NY are blue, but that has nothing to do with climate or the agricultural products or the like. ”

                      Actually that’s due to the urban-rural split. Massachusetts is 92% urban. New York is 87% urban (by population for all). Alabama and Mississippi are 59% and 49% urban respectively. That plays a huge role.

                      “And to the extent there are real variations, there is a difference between “informing” national decisions and controlling them. Should fossil-fuel producing areas control environmental policy?”

                      Should “environmental policy” control fossil fuel producing areas? Or should there be representatives from both types of areas?

          3. Personally, I’m an advocate of at large proportional representation. At large eliminates all considerations of map drawing, and people get to aggregate themselves however THEY want, based on the votes they cast.

            I’m not willing to pretend it’s constitutionally mandated, though.

            My proposal for first past the post single districts, though, would be to randomly generate thousands of maps without any regard to past voting behavior, but complying with compactness and equal population. Then let each ballot qualified party eliminate a proportion of them, perhaps 1/(n+1) worth of them, in a procedure similar to voire dire. (3 parties qualify? Each gets to rule out 1/4 of the maps.)

            Then publicly pick one of the remaining maps by a transparently random procedure such as using a bingo cage.

            That way every party gets to rule out all the maps that are particularly damaging to it’s interests, but nobody actually gets to dictate the map used.

            1. I love at-large representation because in places like Mississippi and Alabama, with a very white conservative population and a very sizeable and dysfunctional black minority, it would ensure not a single black Democrat would be elected. It would clear out a lot of the idiots in the CBC from Congress.

            2. I agree about PR.

              And your map idea is not bad.

          4. See above.

            Remember that everyone in the same precinct MUST have the same ballot, and that precincts MUST reflect municipal borders.

            Squares aren’t possible.

            1. re: “precincts must reflect municipal borders”

              Not true in all states. In fact, probably not true in most states that allow unincorporated territory (that is, territory that is outside the purview of any municipality and is governed solely by either the state or county).

          5. The more conventional wisdom is that districts should group one or more communities with common interests. Otherwise, why have districts at all, if each one is a random hodge-podge? Elect all representatives at large.

          6. “then that’s a legitimate reason not to do it”
            ah, then there are ideas that trump ideology.
            But AC is not quite correct. Of course one could devise a fractal map that would accomplish the goal. But I am afraid that you’d cry bloody murder about that.

        2. “The statisticians even said that 34% of Massachusetts is Republican, but it was impossible to draw a map with 33% of the seats going that way. Impossible.”

          And yet the State Senate is now down to just 3 Republicans — 7.5%.

          I find it interesting that the Dems sue over this stuff, but the GOP never does…

          1. That’s because Republicans currently gain more from Gerrymandering then Democrats do.

            So while some Republicans may benefit from a SCOTUS decision against Gerrymandering, Republicans as a whole are likely to lose†.
            ________
            †Or at least, they believe they are likely to lose. They could be wrong.

          2. I find it interesting that the Dems sue over this stuff, but the GOP never does…

            Your usual fact-challenged BS.

            Republicans in MD did sue over gerrymandering.

            Residents of the district had sued the state, arguing that the boundaries were unfairly refashioned after the 2010 Census to move Republican voters out and shift Democratic voters in.

            Their suit was part of the Rucho case that produced Roberts’ embarrassing opinion.

      4. Only if you are going to ignore the “one man, one vote” mandate.

        The problem the Democrats have is that they are all concentrated in urban areas and while they may have 90% dominance in those areas, the districts must be (a) equally sized *by population* statewide and (b) contiguous. (And then the VRA requires you to have “majority minority” districts which further complicates things.)

        So no matter how you carve up those urban areas, they are still going to contain a higher percentage of Democrats than the statewide average and there is no way around this. Not without going outside of the mandates of _Baker v. Carr_ and it has been argued that the Voting Rights Act is unconstitutional for this reason.

        “60% of voters in a given statewide election vote for a particular party”

        The problem with that is that in the 2018 election, Republican Charlie Baker got 66.6% of the vote, with the Democrat only getting 33.1% — 1,781,341 to 885,770. So by your logic, Massachusetts should be a Republican stronghold and hence it is ” contrary to the whole concept of democratic governance” for only 3 (of 40) state senators to be Republicans.

        It’s one thing to go with party registration — but in MA (and I assume elsewhere) the majority of voters are Independents. The problem with going with which party wins a statewide election is that popular candidates (of either party) win the votes of the other party.

        And then — per _Baker v. Carr_– legislative districts are drawn on the basis of POPULATION. Not number of registered voters or even those registered as Dems, but population.

        See — I can explain this without math…

      5. Your starting premise is entirely wrong, Krychek. If 60% of voters in a statewide election vote for a particular party but subordinate legislators are distributed geographically, then it will be extremely unlikely for there to be the same 60% of party legislators. The fact that you even think that might be true tells me that you don’t understand the underlying mathematics at all.

      6. Problem is Krychek that no matter what someone’s vote is going to be diluted. For instance the pattern in most Democratic states is to have more Black and very progressive White legislators from urban districts like Milwaukee and Madison, moderate Republicans and Democrats from the suburbs, and conservative Republicans from rural districts.

        What you seem to be advocating would dilute the conservative vote, but also vastly dilute the progressive and Black vote that the concentration of progressive democrats enables.

        You seem to think democrats are fungible, but if you look at the type of candidates that different types of democratic constituencies elect then will see clearly that’s not the case.

      7. This isn’t actually true, and the plaintiffs in the gerrymandering case weren’t arguing for proportionality.

        If you have a state where 60% of the population is one party and 40% is the other and it’s perfectly distributed across the state, you’ll actually end up with 100% of the legislature in the majority party and 0% in the minority, because the majority will win every election 60/40.

        Having said that, the rest of Brett’s argument is entirely incorrect. The research presented to the Supreme Court showed two things: (1) that the Wisconsin maps were extremely skewed by historical standards (very nearly the worst skew out of any maps used in any state over the past 50 years), and (2) they were skewed even in the face of Wisconsin’s political geography. From https://www.vox.com/the-big-idea/2017/7/11/15949750/research-gerrymandering-wisconsin-supreme-court-partisanship :

        “Next, take the question of what efficiency gap we’d expect given Wisconsin’s spatial patterns — its political geography. To answer it, Michigan professor Jowei Chen used a computer algorithm to create 200 state house maps. All of these maps performed at least as well as the actual plan on every nonpartisan criterion. They complied with the Constitution’s one person, one vote requirement (because each district had about the same population). They complied with the Voting Rights Act (because they ensured black and Latino representation). They split fewer counties and municipalities. And their districts were more compact.

        But as the below graph shows, not a single simulated map had an efficiency gap as large as the actual plan. In fact, most of the simulated maps had efficiency gaps within a few percentage points of zero. The simulations therefore refute any claim that the actual plan’s pro-Republican skew is justified by Wisconsin’s geography. If it were, at least some — not none — of the simulations would have been as biased.”

      8. “If, say, 60% of voters in a given statewide election vote for a particular party, then assuming normal circumstances the legislature should be roughly 60% of that party. ”
        You make a completely unsupportable assertion based only on your political ideology.
        It does not always work that way.

  2. I look forward to more conclusory arguments, p-value hacking, and motivated reasoning in future posts!

    Wait, no, I don’t. At least p-value hacking would involve enough factual assertions to argue with. This skips over all the details and just presents the conclusion.

    For example, what does “pro-business” mean? Just a ruling in favor of a corporation or business when the other party is an individual or government? Until you control for bias in the legislative and executive branches, and for bias in lower courts, the Supreme Court’s rulings on such cases say little about whether the justices are more biased or whether they are correcting new-or-worse biases elsewhere.

    As another example, why is “business” chosen as the single axis to argue bias — perhaps because topics like gay marriage, PPACA (e.g. King v. Burwell), immigration and criminal justice reform make it clear that the Court is not more partisan (which seems to be the real meaning of “ideological” in this piece) than past courts?

    1. I mean, their book if you read it (I got a chapter from university provided library) is extremely math heavy and difficult to read because it is almost all economic modeling and empirical data.

      It makes sense, for a general audience, that they would significantly tone it down in these posts.

      1. It is, I think, not too much to expect a passing comment explaining that the book provides a broader and/or more rigorous treatment of particular topics, so that readers have a sense in which directions the book expands on the subjects raised in short posts.

    2. What I found disturbing in the OP was mentioning statistics in Stacey Abrams’ election but not Donald Trump’s — when there is a much better case to be made.

      Statistically speaking, how could Trump have gained a significant percentage of minority votes everywhere *but* in certain key cities?

      It’s what the left does — cite statistics when it helps them, ignore them when it doesn’t. And I fully agree that things like gay rights indicates how truly partisan the court had already become pre-Trump. Who was it that wrote in his dissent one one of those cases that the court’s decision was “legislation”?

      1. Republicans have been benefiting from Dominion Software for years as well.

        1. How in the world does this conspiracy theory work? If the Dems know Dominion software can secretly swing for them, how do they allow it to swing for the GOP sometimes?

          Plus, of course the panicked reactions to the defamation cases kinda show something ain’t right in what you’ve been told.

          1. In regard to the defamation cases: I’m shocked that people without deep pockets will backtrack when a mega corp with deep pockets goes after them legally. Shocked I tell you that shutting people up with litigation is some sort of tactic. I’ve never seen it before, I tell you.

            As for the conspiracy theory, how do you think it works? You’re so “team blue vs. team red” that you need to take off those glasses first.

            1. You’re saying Domion is the megacorp and FOX is people? Don’t be such an obvious tool.

              And there are plenty of counterexamples of media companies being sued by large corporations and not backing down in a public an humiliating fashion. That’s the norm, in fact.

              Ahhh, you’re a ‘sekret uniparty’ nut where ALL the elections are worked out behind closed doors.
              You’re crazier than I thought.

  3. that is, he adhered to the original meaning of the text of the U.S. Constitution and statutes enacted by Congress, not the meaning as he wished it were.

    Then why no cases to directly deal with the murky phrase “shall not be infringed”?

  4. The original idea was, in recognition of the inherent, unavoidable problems due to the unknowability of so much, the national government would be restricted to those things that are truly national, like armed forces and international relations. See, 10th Amendment.
    It was the lawyers, see the Supreme Court in the 30s who caused this problem.
    Must get genie back in bottle. Not sure how.

    1. Exactly right. Constitution spells out the very limited federal powers. Federalism would make everyone happier and the country would be much more united, but governments always seek to increase and consolidate their power.

      1. Hard to argue spending for the general welfare is a very limited power.

        1. That’s because the framers didn’t write a constitution to severely limit the powers of federal government to specific delegated powers then just throw in ‘general welfare’ as a way to circumvent all that so the feds to spend on everything and anything. So that should strongly suggest you are getting ‘general welfare’ completely wrong.

          1. If you look at the previous history of the Articles of Confederation, I think it looks a lot like what they meant to happen.

            Regardless, that’s tilting at windmills; the modern state isn’t and shouldn’t go to go back to the 1700s vision of what it should be (which assumes a pridefulness in the Founders about their ability to see the future I don’t think is in evidence).

            1. They meant to create a stronger central government which would still be considered a near anarchy by modern standards. Whole areas of life and topics were supposed to just be off the table so far as federal action was concerned.

              1. I don’t think that’s clear in any of the Founders, except for Jefferson.

                Perhaps that’s what the envisioned (perhaps not!) but I don’t think the received wisdom on the right that this is what they intended to instantiate is at all clear.

                Plus, as I noted, the Civil War is an intervening cause.

                1. Well that is how it was sold to the states that ratified the constitution. The states entering into the agreement thought the federal govt had a very few well defined powers and everything else would be left to the states. They also understood themselves to have the right to remove themselves from the union they created.

                  1. Exactly. Sarcastro imagines that if he advertises his abject ignorance repeatedly, people will eventually imagine he knows what he’s talking about.

                    1. Oh whatever.

                      You got a factual issue, take it up with me. Call me names after if you cannot resist, but if you only call me names you’re just an a-hole.

                    2. Oh, I see, you’re angry because I don’t buy into your lost cause historical bullshittery.

                      I may be ignorant, but you’re working very hard to justify some fucked up shit.

                  2. Why did the Articles of Confederation fail?

        2. I mostly agree there are no limits on the spending power, but that doesn’t mean there aren’t limits on police, and regulatory power.

          For instance the Federal government can spend money on universal preschool, they cannot mandate parents use it.

    2. The original idea didn’t work. See: the Civil War.

      1. So the federal government decided they would rather kill southerns then allow them to leave – which was originally understood to be perfectly constitutional.

        1. Another defender of slavery. The KKK should start up a special Volokh chapter. No problem with recruitment.

        2. Seems to me the Southerners started shooting first.

          1. Like the Palestinians!

            Sorry I’ll show myself out.

          2. I am not sure if there would have been a war had they not fired on Fort Sumter — instead starving it out. There was not support for a war before that…

            1. I don’t know, Lincoln was pretty determined that the US be a roach motel; You can check in, but you can never check out. I think he would have found or created SOME pretext upon which to start the war.

              And it would have taken a long while to starve out Ft. Sumter.

          3. Lincoln’s intentions are well documented. He publicly stated numerous times, in no uncertain terms, that he would militarily invade and occupy the South as necessary to collect his taxes, i.e. to prevent separation.

            1. You’re not going to un-lose the Civil War with shit history takes.

        3. which was originally understood to be perfectly constitutional
          False

          allow them to leave
          Leaving was a means to the monstrous end the South wanted

          they would rather kill southerns
          Not how it happened. The South was demonstrably itching for a fight, and fired the first shots.
          =========================
          But all that has nothing to do with the point that the federated system envisioned by the Founders failed. Regardless of which side you blame, the underlying cause of the conflict was not enough union in our Union. And the cure was the 14th Amendment, reFounding the relationship between the States, the Federal Government, and the American People. It made America a more stable, and a more moral place.

          1. Yeah, giving 85 IQ people full legal rights certainly made us more stable! /sarc

            1. I wouldn’t bother with IQ stats with this blog’s comment section. Looking at large masses of data makes you racist or something.

              That said, if the South had foreseen what they would wrought, then yea, you could’ve made headway with them as an abolitionist. But they thought slavery would be perpetual, and even most of the Northern abolitionists, and Lincoln himself, wanted to send all the former slaves back to Africa.

              1. I don’t quite understand how a) the South thought they could hold people they believed to be mentally inferior in captivity FOREVER, and b) how everyone else thought we could have a huge population, sharing the same land, that genetically could never be equal.

                There really was no good solution post Civil War. Deporting all slaves to Africa would have been tantamount to just killing them here. The ideal solution probably would have been giving them their own land on U.S. soil, similar to what the American Indians got, and let them have their own country.

          2. Lincoln told everyone repeatedly that there would be a war to prevent secession and to collect the federal taxes. His and the North’s motivation had zero, zip, nada to do with slavery or the like.

            There is a communist named Eric Foner who calls it the Second Founding as well. Maybe you read his book.

            1. So Lincoln was going to spend money on a war to get the Southern tariff money when he was still raking it in from the North? More lost cause bullshit.

              Never heard of Eric Foner, but a bit of Googling and he appears to be a badass Columbia historian and no Communist.

            2. Brett : “I don’t know, Lincoln…. (babble)”

              For the umpteenth time : The southern rebel troops performed dozens of aggressive military actions – including seizing federal properties by force and attacking a U.S. ship approaching Fort Sumter MONTHS before Lincoln took the oath of office.

              Look, I grew up in the South and therefore am used to Lost Cause bullshit. But at least my southern brethren usually know their basic Civil War facts. They’re not historically ignorant. Lincoln assumed the presidency in the middle of an armed rebellion. He had two choices : fight or surrender.

              1. Wrong – Lincoln had 2 choices – honor the constitutional right of states to leave the union they created or kill them. He choose B.

                1. 1) The Confederates were appropriating federal property. Federal guns, actually. And kept talking about a fight. And then shot first.
                  2) There was and is no constitutional right of states to leave the union.
                  3) You don’t get to sidestep slavery.

          3. Of course you left out all of other actual southern grievences other than slavery. 4 southern states payed 75% of the tariffs that funded the fed. govt. I also dont think you get to claim moral high ground when you would rather kill someone a group of people let them leave peacefully. The confederates sent a peace delegation to work out details with Lincoln, who refused to meet with them.

            1. Right. I wonder if he knows how many of the confederate states only seceded after, and in direct response to Lincoln raising an army to wage war upon the southern states.

              1. M L : “direct response to Lincoln raising an army to wage war upon the southern states”

                I’m curious : Let’s say you were tasked to discover who first began raising an army by presidential decree, Davis or Lincoln? What do you think you’d find?

                Here’s a hint : It was just like the first military aggression, just like the first use of armed force, just like the first attack on the other side’s ships, just like the first shots fired in the war.

                The South.
                Davis, by over a month.
                Why not try and learn some history ?!?

            2. I also dont think you get to claim moral high ground when you would rather kill someone a group of people let them leave peacefully.

              Because the South was so dandy with slaves leaving peacefully and never tried to murder them.

              1. Catch up. Nobody is currently defending slavery and north wasnt fighting to end slavery. 1 million people were killed or maimed in civil war, fought to make sure south stayed in union for norths benefit. Fed gov completely violated the agreement the states made when they created the union. So north killed rather than let south leave as was their right.

            3. KCar : Of course you left out all of other actual southern grievances other than slavery

              If you want to know the “actual southern grievances”, why not take them at their word? After the first wave of secession, states who rebelled sought to convince the southern states remaining to join them. They sent out “secession commissioners” to make that case. These gave speeches before public gatherings and state legislatures exhorting the South’s cause.

              Know how many times they mentioned tariffs? Almost never. How often did they talk about “states rights”? Hardly at all. Remember: Lincoln was elected because the opposition vote split due to southern rage over Stephen Douglas’ call to settle slavery in new territories by ballot. No one was more in favor of a strong federal government with muscular enforcement powers than the South, at least when their property rights in other humans was concerned.

              So what reasons did the secession commissioners give to convince their fellow southerners to join the rebellion? One thing, repeated over and over: The threat to slavery. “Southern Honor” was the closest second by frequency, but the commissioners seemed to consider that a redundant point.

              https://www.upress.virginia.edu/title/1156

      2. But the Civil War was caused by the North’s rejection of the original compact. The South was motivated, in large part by a moral evil. That is not disputed. What is disputed, by me, it that the North was legally justified in making war rather than accepting state ratified succession.
        Regardless, the loss of federalism largely came later, when FDR and an intimidated Supreme Court wrote the 10th Amendment out of the Constitution, starting with Wickard.

        1. Here’s one thing I can never understand about your Lost Cause Apologist argument. If the South thought it had a constitutional right to secede, then why didn’t they attempt a constitutional process? Why didn’t they try to formulate one? Why did they pursue military action & rebellion from the first?

    3. Correct, Ghost of Patrick Henry.

      “You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government.”

  5. Only proper way to judge law is to use good faith to try and determine the original meaning of the law at the time written. If the legislature doesnt like the ruling – then its up to them to change the law, not the judges. Why has the amendment process been completely abandoned? The whole article argues for living constitution and for judges to warp the laws to achieve their preferred outcomes – which is the progressive view of law.

    1. That is where I came out as well = Only proper way to judge law is to use good faith to try and determine the original meaning of the law at the time written. If the legislature doesnt like the ruling – then its up to them to change the law, not the judges.

      Not sure how to objectively define ‘good faith’ but I guess I’ll know it when I see it. 🙂

    2. Well, no, not necessarily.

      Even an original approach can bring up empirical questions.

      And for statutory questions, a textual approach has empirical questions. What exactly is a trust under the sherman antitrust act? Well, the executive picks a certain HHI number. Is that number correct? Two approaches, we either adopt chevron and just say its correct because the executive said so, or we don’t do that, but if we don’t judges do need to understand what HHI is.

      For the 11th amendment, Congress can abrogated it if they demonstrate a clear fact patten under the 14th amendment. This test, written by originalist judges, seems like … an empirical question!

      Does the Merger doctrine apply to API’s? Well whats an API? What analogy is appropriate for originalism, as they didnt exist at the founding?

      We have empirical questions here, which need to be asked even with originalist judges creating the tests.

      I mean we could just use juries for everything, but that isn’t always possible in certain cases.

      1. Original meaning has to be basis for judging – using good faith to come to most reasonable conclusion. Yeah not perfect and conclusive. It solves a host of other problems as well.

        1. Empiricism is not orthogonal to original meaning.

          The original meaning of the 4th amendment is that if you own something, under the positive law model, you need a warrent to search it. Ok. But to what extent do you own something intangible, like a bank statement or post? If you apply the expectation of privacy test, ask yourself if X is covered under the 4th amendment, how is privacy effected?

          That is an empirical question, even after the jury does its fact finding.

          The government takes something. Ok. Original meaning, it must be for public use. What exactly does public use mean? Well, a survey of originalist sources says it must be owned and used by the public … to what extent?

          You can put a number to it. The courts already do this … but with vague words. They say this is appropriate so long as X or Y, because X or Y was the standard back then. Fine. Why can’t X or Y be numbers instead, and the threshold is set based on original meaning?

          1. Judges use their best judgement as to original meaning and make a good faith ruling on what is most reasonablely consistent with that law to fill in the gray parts. Then legislature can change/clarify the law if they don’t like the ruling.

            Seems to me progressive living constitutionism skips the good faith original meaning and legislature parts, and goes right to changing the law to what they think the law should be.

            1. Sure, but again, what exactly is a good faith ruling? What is a faithful interpretation? Sure, the legislature can change the law, but they can do that if the court gets it wrong, too.

              All that is being said here is that there be an empirical basis behind the vague words and standards that are often used. What does reasonable mean? What is an expectation of privacy?

              Take something like Google vs Oracle. Sure, Congress can change the outcome, but that is not the point. The court has to decide one way or the other. How does it make that determination and not know what an API is?

              If a statute contains a technical term, shouldn’t you have an expert to have the knowledge base to know what that means? A court cannot go to congress and say, sorry I dont know what this means. Congress was fairly explicit … it isn’t their fault the Court doesn’t understand technology.

              Its the judges job to figure it out! An expert might know and understand it. So you need to have that expert.

              There are experts that do this already, and it has nothing to do with progressive living constitution. Posner, who proposes an advanced version of this, isnt a progressive! All that is proposed is integrating those experts into the system.

              1. A bad faith ruling is one that I know it when I see it. And when judges hold that “due process” creates a substantive right to sodomize another dude and marry him, that’s bad faith.

              2. Good Faith – what are your motivations for your ruling? This is where the evidence takes me vs. this is my desired outcome. It takes real integrity to judge this way and unfortunately these judges are typically nominated and confirmed by those of us with the least of it.

                Our Constitution was made only for a moral and religious People – Adams

    3. Original meaning you say?

      Which original meaning?

      Original Intent
      Original Meaning
      Original Public Meaning
      Semantic Originalism
      Framework Originalism
      Textualism
      Structuralism

      1. Original public meaning of the law at the time it was passed is the only legitimate way to interpret laws.

    4. I’ll believe that any originalist judge actually believes this when they follow this through to a conclusion they don’t like.

      But as we see, over and over again, the moment originalism leads to a conclusion they don’t like, they set it aside and choose a different legal theory to follow.

      1. Thats not an argument against originalism.

        1. Correct.

          It’s an argument that no one actually cares about originalism for it’s own sake, and only use it to achieve their objectives.

          And if it’s biggest proponents don’t actually care about it for it’s own sake, why the hell should I?

          1. You should care if you care about having laws that reflect the will of the People instead of the will of the judges. You should care that when a law is passed that the public understands to mean X, judges wont make X into Y. Its the only honest and proper way to judge the law.

            1. If self-proclaimed “originalist” judges were any better at making decisions that “reflect the will of the People” and making sure their rulings comported with what the public thinks a law means, you might have a point.

              But they aren’t. So you don’t.

              You’re a cheerleader for a team who’s happy to trade jerseys whenever it’s convenient.

              1. Nonsense. I think originalist judges are the best at making decisions as they are the only ones doing it properly and honestly. Just because some may waffle and are inconsistent, says nothing about orginialism itself or makes it equal to progressive activism.

                Second, you have no way to ‘score’ how consistent others are to their guiding philosophy, because there is no objective standard.

                Third, your ‘reflect the will of the people’ has no rational meaning. What people? Those that share the politics of the judge? How is this preferable?

                Fourth, I’m on my own team. A minority of 1.

          2. “And if it’s biggest proponents don’t actually care about it for it’s own sake, why the hell should I?”

            For an answer to your question, see the last 40 seconds of this video.

            https://reason.com/volokh/2020/02/10/an-introduction-to-constitutional-law-featured-on-life-liberty-levin/

            I’d be interested in your response.

            1. Don’t be. I’m not in a place where I’m going to watch videos, and by the time I am, I’m not going to be wasting time on Reason.

  6. I tend to agree with Posners and others who argue the court ought to be more pragmatic. Like in general I read Breyer and while I often disagree with his conclusions I probably respect his reasoning more than other justices.

    I dont think it should be all empirical? Breyer probably takes pragmatism a little too far? And this may be a controversial point, but pragmatism and stare decisis are simply incompatable. I think few people understand that … if legal decisions revolve around fact patterns on the ground they cannot, at the same time, be set in stone.

    But maybe some sort of fusion of originalism and pragmatism, as … sort of proposed by OP? Its a little unclear how legal rulings are expected to change as a result of this.

    And to be fair, when the pro-business side clashes against outcomes that originalism explicitly disavows, such as the 11th amendment, businesses usually lose. Same with federalism, businesses don’t like a 50 state regime they would prefer a federal regime (and tbh so would everyone else) but it never works out that way.

    What I would say is this, the founders, in writing the constitution, sought to achieve certain things. Whenever the court creates a legal rule, it should ask itself, does this rule actually achieve the outcomes as originally understood?

    Or at the very least, what analogies are appropriate?

    Like an actual understanding of how software works would have been very helpful for Google vs. Oracle, which worked out because … Breyer wrote the opinion! In my view the process could be, use a technical understanding to figure out what analogy is appropriate for an API to original evidence, and apply that original evidence.

    Or if the court says, this is or isn’t covered by the 4th amendment, even if one does a pure original approach it is still helpful to know if the ruling actually improves privacy or protects property rights or whatever! That is an empirical question.

    1. Generally, I agree. Where I think Breyer goes wrong is not in taking pragmatism too far but in usurping the responsibility of the legislature to fix the problems. In the short term, it may be pragmatic to decide X but in the long term, it will often be far better for the court to uphold not-X until and unless the Legislature changes it.

      Said another way, Breyer’s pragmatism is an enabler of legislative dysfunction.

      1. It’s a little circular, though: Legislative dysfunction is table stakes at this point, and the other branches are doing their best to keep the country working despite this fact. Now maybe if things got SO BAD voters would somehow demand that legislators get their act together, but it seems unlikely given the overall trend towards polarization amongst both voters and legislators.

  7. the conservatives on the Roberts court are extremely probusiness and that the liberals are only moderately liberal.

    Extremely liberal, or anti-business, is not even a legitimate thing. Forcing kow towing on anything to do with it is the path of corruption, allowing officials to get in the way, then something happens, and they get back out of the way.

    Of they just stay in the way because their cronies are right there, as is done with taxi interests using their elected partners in crime to hurt Uber and Lyft in this country, or places like Seoul, which outlawed Uber and immediately handed off the business model to the local cronies.

    These are not unfortunate abberations. This is why government exists at all. Any good they might do is coincidental and at best just patter to get elected so they can get down to the business of corruption.

    1. This anarchist take is pretty ahistorical.

      The Lochner era, for instance, was really pro-business, but 1) not free of corruption, and 2) really bad for people generally.

      Plenty of other examples. Dickensian England is another good one. Somalia’s lack of government has not really gotten rid of corruption either.

      Not that government doesn’t suck a lot, but things aren’t as simple as your simplistic philosophy allows.

      1. China began an anti-corruption campaign, executing government officials. Its growth rate dropped by a third. Corruption is not straightforward.

      2. Somolia doesn’t actually lack government, though. Their problem is that they have an excess of governments fighting over who gets to be in control.

        It’s rather like the difference between a gang war, and not having gangs. Actually, precisely like that, since that’s really all governments are in the end, scaled up and sophisticated protection rackets.

        1. Somalia’s weak government is not the cause of it’s corruption problem.

        2. “It’s rather like the difference between a gang war, and not having gangs. Actually, precisely like that, since that’s really all governments are in the end, scaled up and sophisticated protection rackets.”

          So, what happens if there’s nobody in the protection game? What keeps individual bad actors from walking in, and helping themselves to whatever goods they take a fancy to? If your answer is some variation of “my arsenal”, then when do you plan to sleep?

      3. Hey, some of my favorite writers are anarchists!

        This is off topic but I find it funny how anarchists would make horrible policies but they produce excellent writing and artwork about those horrible policies.

        1. One of my favorite writers is David Friedman, Milton’s smarter son.

          Sadly, I eventually concluded that E. O. Wilson’s quip about communism, (Wonderful theory. Wrong species.) was equally applicable to anarchism. We’re just not a species suited to anarchism.

  8. How about more justices with non-judicial experience like Taft, Black, & O’Connor? Or someone from outside the law biz, like Thomas Sowell?

    1. I would exclude anyone who has passed 1L. That experienced devastated the person with the highest IQ in the country. Now, that person is the d-word. He would have been less impaired from a serious head injury.

      1. ” That experienced devastated the person with the highest IQ in the country”

        Seems to have also done a number on you.

  9. The biggest bias of the Supreme Court favors big government. It is true of both sides. It comes from the rent seeking culture of Washington DC. That cannot be overcome by any human. If you move to Iran, you will become Iranian, even if you hate Iran. Humans imitate, and take on local motivations and incentives.

    The Supreme Court has to be moved to a location with a small government and self reliance culture.

    Congress should also begin to protect the American people by impeaching Justices for decisions that have usurped its powers. That is fully justified legally. Congress allows this Justice insurrection against the constitution to avoid facing controversial subjects. It allows its dog, the Supreme Court, to take the hate from injured factions. That is not right.

  10. The original argument in this post is inherently biased and doesn’t represent multiple viewpoints in a fair way.

    Given this, the entire post needs to be treated skeptically.

  11. Academic advisers to the Supreme Court? Sorry, but no. They are 90% Democrat douche bags. All are government dependent, leftist, biased, dunderheads. Also, they know shit compared to their counterparts in the real world.

    1. ” they know shit compared to their counterparts in the real world.”

      If there are any Republicans in the real world they must be exceptionally lonely. They prefer to live in an imaginary world where Trump won the election but had it stolen by Hugo Chavez’s ghost and millions of illegal immigrants who all voted against him.

  12. They are also lazy government workers. Given their devastating track record, we are better off the less they do. They should be replaced by an algorithm containing the constitution, and applying it. Then cert all applications and dispose of each in a second of calculation.

  13. Boy, a lot of SCOTUS navel gazing by the intellectuals since the court skewed Conservative. Where was all this deep, serious, “apolitical” contemplation when Ginsburg and the other progressive judges “ruled the earth”?

    1. LOL. The Supreme Court hasn’t had a liberal majority in decades, certainly not while Ginsburg was on the Court. Just because folks like Kennedy and O’Connor sometimes crossed over in 5-4 votes doesn’t somehow allow the liberal justices to “rule the earth”.

      1. “hasn’t had a liberal majority in decades”

        Wrong, it has not had a Democratic Party majority in decades. It has through Souter et al a functional liberal one. Abortion, gay marriage, affirmative action and other liberal priorities all legalized. Gun rights is the only conservative victory from the “conservative” court and its grudging and half a**ed at best.

        1. Like I said, some of the conservative justices have crossed over on key votes, but e.g, Kennedy voted with Thomas way more consistently than he did with Ginsberg so the overall tilt of the court was still conservative.

          You guys are just so obsessed with a few culture war issues that you lose track of what’s happening substantively in the country and the courts.

  14. I would like to introduce Dr. Winston to the dose-response curve of all remedies. Too little does not work. Too much is toxic. That means, hard work is needed to work out that curve in small jurisdictions. It makes lawmaking harder but more effective and scientifically valid.

    Second, I have yet to see him use the phrase, rent seeking theory. You cannot have a discussion of the legal profession without addressing this huge crime. It is a euphemism for armed robbery.

  15. With perhaps one exception, the notion of subject matter expertise for judges seems misguided. Judging ought to be a matter of choosing among expert appeals brought by parties, or developed by legislatures. Reliance on expertise judges claim for themselves veers too close to policy making from the bench.

    The exception. Judges need to act as experts in their own methods of legal analysis. If a judge aims for textualism or originalism as an analytic method, that judge ought to have benefit of training sufficient to give legitimacy to the method, and to prevent it from seeming to everyone an unbounded license for prejudice from the bench.

    What that training might consist of will, unfortunately, be hard to reconcile across the entire range of cases. A textualist interpretation of last decade’s health care bill is an entirely different challenge than finding textualist insight into antique language, or for vaulting the gap of experience which mediates context variations between centuries-old documents and present-minded readings.

    For that reason, it may not be practical—except perhaps among legal specialist law professors—for lawyers and judges to make themselves the sources of the expertise they rely upon. It looks like either way you cut it, judges deciding actual cases should look to experts other than themselves, even for the expertise they rely on to operate their theories of originalism, textualism, or what have you.

    Doing it that way instead, with witnesses and briefings, will provide for more substantive arguments and better decisions than anyone can get otherwise. It can be a problem when it is just the judge saying, however learnedly, “I know what this means, and what this means decides the case.”

  16. In an interview (sorry, can’t find the link) Scalia was asked about the ideological polarization problem with SOCUS. He argued that if the courts did not hear cases that should be decided politically (i.e. in Congress), then there would be less pressure for the President to nominate a politically correct candidate for the court.

    I think Scalia said that if abortion had been settled politically one way or the other, the dust would have settled by now. But doing it via the courts guarantees that the public will be split forever and there never will be finality.

    I interpret Scalia’s comments as meaning that legislative reform should be the first step of court reform. I see no mention of that view in this post or in other current discussions of court reform.

    1. I think that’s true in general, but there are cases of the opposite. For example, gay marriage, it was effectively forced on people, and most have accepted it by now.

      1. Sorry, Aladdin. No one has accepted gay marriage, not even gays. They are not falling for that stupid lawyer trap to plunder the assets of productive parties. Homosexual income is a standard deviation higher than het income. That is what gay marriage is really about. The Family Law bar wants their money. They destroyed marriage, and are desperate for business. Only a suicidal fool would get married today, of any orientation.

      2. Acceptance and resignation aren’t quite the same thing, though.

        I wonder what would happen at this point if the courts indicated that they would permit the democratic process to resume making policy in this area? Probably would vary from state to state.

        1. OK, the overheated parade of horribles that same-sex marriage was supposed to lead to has had time to not happen. This leads to people who aren’t overinterested in other people’s sex lives to work out that other people’s marriages are best left to the other people. That’s more specific than a claim of acceptance.

      3. “and most have accepted it by now”

        Have they?

        Or have then been forced into silence, with resentment and rage building like unvented steam.

        1. But it DOES vent. It oozes all over the Internet. And when people call in to AM talk radio stations.

    2. I think Scalia said that if abortion had been settled politically one way or the other, the dust would have settled by now. But doing it via the courts guarantees that the public will be split forever and there never will be finality.

      I don’t know if Scalia said it, but I do know that RBG said that, more than once.

    3. Scalia also thought that the courts had no place in correcting injustices as long as said injustices had been happening for a while. Except for perceived injustices suffered by conservatives, which should be immediately redressed no matter how long they’d been going on.

  17. There are so many problems with this bit of opinionating masquerading as analysis. Let’s start with “If one examines the highlights of Scalia’s voting record, they simply fit with the ideologies of the Republican Party.” Sure! If we just cherry pick the examples we want, it proves my narrative! Just ignore all the places where Scalia’s decisions would diverge from Republican Party desires, those surely couldn’t be evidence of ideological consistency separate from partisanship.

    Or the entire idea that every judge is an ignoramus in everything except the law.

    1. For example, Scalia’s dissent in Smith v. United States.

  18. Lefties always pretend like they have some sort of moral authority to have power. It is a great ploy, but just that, a ploy.

    “Pack the Supreme Court…” we HAVE TO DO IT because the right wingers!!!!!

    Could you imagine the press if Republicans tried such a naked power grab?

    The right needs to learn something about Biden’s first 100 days. It was relentless. Everything Trump did administratively that mattered was undone or in the process. And now we are looking at funding the entire liberal agenda with a two trillion dollar boondoggle. What did Republicans do for two year under Trump? Passed a tax cut.

    Time to show up right wing and take it to the libs. It is what they do to you and if you don’t return it ten fold then you are bound to lose.

    1. Yes, and there’s still many foolish “moderates” who are SHOCKED, JUST SHOCKED, that Biden has governed like a far-leftist, and not the “uniter” he promised to be.

    2. Lefties always pretend like they have some sort of moral authority to have power.

      Jimmy, pretending you have some sort of moral authority is basically your whole deal.

      1. I’m on a mission from God Sarcastro….

        1. So are many on the Left.

          1. No they are leftist stooges…

              1. What don’t you understand about being on a mission from God…?

                1. That part where you wouldn’t recognize God if he DID choose to associate with you.

    3. “Could you imagine the press if Republicans tried such a naked power grab?”

      You mean like if they just flat declared a rule that Democrats don’t get to select Supreme Court justices?

  19. “Judge Richard Posner argues that, because justices do not share a commitment to a logical premise for making a decision (for example, cost-benefit analysis), they must be ideological because they cannot be anything else.”

    Akkk. Can we please stop listening to that guy?

    1. Why exactly? I’ve found Posner pisses off exactly the right people on the left and the right. I quite like his reasoning most of the time.

      1. Posner might make a good legislator, I think he’s just in the wrong job.

  20. In the sixties as I recall, the Old Fifth Circuit in Hawkins vs Town of Shaw, Mississippi said “Figures speak, and when they do, Courts listen”. Evidently not always.

  21. Trouble at the Bar suggests that justices should be receptive to forming and working with a panel of independent experts from appropriate academic disciplines to improve their understanding of, and the decisions they make about, cases that involve increasingly complex social and technical issues but may evoke ideological preferences.

    Experts can file amicus briefs. But I think any attempt to seriously do something like this would violate at least the spirit of Article III. The people who decide these cases need to be Senate-confirmed Article III judges. The whole point is to have generalists who can consider the views of experts, because experts have their own biases and require a check and gatekeeping. (Just like trial court experts need to be gatekept under Daubert.)

    1. Courts already allow referring to experts for advice during fact-finding. The problem with relying on amici briefs for advice on policy is that A) they’re written by lawyers, and B) literally anyone who wants to can write one to lobby the court. What you want is something wherein the Court determines whose opinion they’d like on a pending case, and asks them for it with sufficient lead time for meaningful analysis. Economics is one area where this might be useful, but also medicine and science.
      As it is, lawmakers are allowed to do this, and they select “experts” to tell them what they want to hear. Not sure how you could avoid this for the Courts.

  22. As far as I can see, this post is saying that Trump was right to interpret judging in purely political terms, and Roberts’ claim that we don’t have Republican judges and Democratic judges was false. But that truth can only be printed at the Conspiracy when it’s dressed up with fancy analysis and has NOTHING to do with Trump.

    1. Associating anything with Trump poisons it to thinking people. (also vice-versa).

  23. Apart from use/abuse of statistical arguments in particular cases, this post reminds me of distaste whenever lawyers in positions of power joke that they went to law school because they cannot do math. What a poor example. A high school graduate should have basic competence in math, and anyone making or interpreting laws in government by and for the people should resign if they truly think themselves innumerate.

    1. “poor at math” and “innumerate” are not interchangeable.
      If I had a way to embed it, I’d stick in the great Far Side cartoon where Hell is a library where all the books are math story problems.

      The skills necessary to be a lawyer are both similar to and different from the skills necessary to be an engineer. There’s a reason that physics for science majors is not the same class as physics for liberal arts majors. That reason is calculus. The science majors all took calculus, and many if not most of the liberal arts majors stopped taking math classes before differential calculus. Calculus exists because Newton needed it to solve physics problems, but it hadn’t been invented yet. So Newton invented it.

  24. What is the statistically-adjusted, economically optimal outcome in cases of abortion, same-sex marriage, etc?

    “more socially desirable middle ground”

    The Supreme Court’s “conservatives” have *already* proposed a middle ground on abortion – letting the states decide. Apparently, this middle-ground is anti-choice and misogynistic and wicked.

    On same-sex marriage, remember the “middle ground” solution of “domestic partnerships”? Try proposing those today for gay couples – it will get denounced as homphobic and deplorable.

    All without any economics!

    1. And we can forget about the libertarian middle ground of letting bakers decide which wedding ceremonies they want to bake cakes for.

      Even Republicans seem to be running away from the argument that religious freedom protects the “discriminatory” business owner.

      “Republicans have rebutted the act does not grant legal protections for discrimination, saying such attempts to use the Religious Freedom Restoration Act as cover for discrimination against LGBTQ people have failed in more instances that not.”

      https://mtstandard.com/news/state-and-regional/govt-and-politics/gianforte-signs-religious-freedom-bill/article_7a7e21f6-3dc7-5e0a-9a6d-8ef688024a2b.html

      So where is this middle ground that people with talking points to push always mention?

    2. On same-sex marriage, remember the “middle ground” solution of “domestic partnerships”? Try proposing those today for gay couples – it will get denounced as homphobic and deplorable.

      You mean the “middle ground” that was rejected in over twenty states by state constitutional amendment? The one that Texas was so eager to reject, it accidentally outlawed heterosexual marriage? The one that was never seriously proposed in any conservative states, ever? That had no support at the federal level (meaning that for federal purposes, it wouldn’t matter)?

      That “middle ground”?

      Yeah, I can’t imagine why anyone who is currently married today would here someone suggest that their marriage annulled, their rights stripped and set back twenty years, all for a compromise that conservatives already rejected, and think you’re an asshole. Completely weird.

      1. This supports my point that there is no middle ground to be obtained – certainly not from the Supreme Court. The authors are naive.

        1. And you left out the state of California from your calculations. That state had full domestic-partnership status and benefits, but a constitutional amendment denied these the name of marriage. Not only did the courts require the name “marriage” to be attached to domestic partnerships, the state’s own attorney-general (what was her name?) refused to defend the matter in court, because denying even the name “marriage” was an intolerable affront to the Constitution.

          So you can blame Texas if you wish, but in any case the authors’ “socially desirable middle ground” doesn’t seem to exist.

          1. Yes, I can’t imagine why an argument about how conservatives rejected compromise before folks even got to the negotiating table might leave out California.

            Silly of me, I know.

            The fact is, that “middle ground” y’all like to whine about gays rejecting was never going to work. Conservatives made sure of it. By the time 2008 rolled around, we already knew it was an all-or-nothing deal.

            But hey, don’t let a little thing like “actual history” dissuade you from your narrative.

            1. The compromise was rejected because conservatives knew where it would lead. You give an inch, they’ll take a mile. It’s the same reason we don’t “compromise” on gun rights.

            2. ‘that “middle ground” y’all like to whine about gays rejecting’

              Sigh…why not look at my previous comment, compare it to what I’m saying in your head, and observe the contrast.

          2. ” you left out the state of California from your calculations. That state had full domestic-partnership status and benefits, but a constitutional amendment denied these the name of marriage.”

            Or, for people who were paying attention, California had marriage for same-sex partners who wanted one, because whoever wrote the statute for civil marriage forgot to specify that spouses had to be differently-gendered. Obviously, conservative folks couldn’t stand the idea that gay people would have the same rights as anyone else, so they passed an amendment that added a gender-variation requirement for recognition of marriage and annulled all the same-sex marriages that had already been recognized.
            And, of course, anyone could marry anyone in a religious ceremony, if their religion permitted it. Since freedom of religion applies to people who decline to choose from a menu of pre-approved religions, that meant that anyone could get a same-sex marriage at any time, anywhere in the United States, since 1791. This affected other people (married or not) in the same degree: approximately exactly zero.

        2. “This supports my point that there is no middle ground to be obtained”

          It supports your demonstrated intent to define “middle ground” as something that nobody wants, and then to whine that nobody wants the “middle ground” that you carefully designed to appeal to nobody.

          Here’s a “middle ground” proposal:

          Gay people get to get married if they want to (to other gay people) but people who don’t believe that same sex partners are really “married” don’t have to enter into same-sex marriages, nor do single people have to be in any sort of marriage if that’s the way they want it.

          Disclaimer: I was once married, in a hetero marriage because I am and was at the time hetero. Other peoples’ marriages are neither my problem nor my business.

    3. “The Supreme Court’s “conservatives” have *already* proposed a middle ground on abortion – letting the states decide. Apparently, this middle-ground is anti-choice and misogynistic and wicked.”

      Oddly enough, this (let the states decide) is ALSO the liberals’ proposal for gun-control legislation, where it is seen as anti-freedom tyranny by firearms enthusiasts.
      It’s almost like people don’t like other people making important decisions for them.

  25. Yada yada yada. Just follow the constitution as written. Its not complicated

    1. Actually, it IS complicated.

  26. “Clearly, the desirable response is not to pack the Supreme Court with a balancing number of ideological justices . . .”

    Did this guy even attempt to support his assertion, let alone establish it to have been made “clearly?”

    (He wouldn’t have been invited to participate at this blog were he not a committed conservative. And, at the practical level, I do not expect right-wingers to be a consequential part of consequential discussions concerning Supreme Court enlargement.)

    1. They don’t bother to spell out articles of faith. You’re just supposed to buy in, because. not because (list of good reasons), just because.

  27. If this is the best work conservatives can muster as they attempt to avoid Supreme Court enlargement, I may need to revise my forecast.

  28. Also we don’t have R and D judges. We have judges who follow the constitution and those who I don’t think have ever read it nor do they care.

    Maybe we’re at 5 1/2 to 3 1/2 constitution respecting judges but its more likely 5-4 because of Roberts who now identifies as a communist.

    And of those 5, 2 of them are scared of their shadow and will dodge any issue they can.

    1. We have some judges who view the Constitution as I do, which is of course the One True Faith, and the rest are heathens.

  29. “The late Justice Antonin Scalia dismissed criticisms of being an ideologue by characterizing himself as an “originalist”—that is, he adhered to the original meaning of the text of the U.S. Constitution and statutes enacted by Congress, not the meaning as he wished it were. But Professor Cass Sunstein countered that when cases get to the Supreme Court, the original sources often leave gaps and ambiguities.”

    Gaps and ambiguities are no argument against originalism. That some questions may be hard cases is no reason to surrender to an oligarchy to do as they please on all questions, yet that is what we have. An oligarchy.

    “If one examines the highlights of Scalia’s voting record, they simply fit with the ideologies of the Republican Party.”

    If the Republican Party is originalist, then this would be no surprise and would not be any argument against Scalia’s claims. In reality, the Republican Party is not very originalist except as a relative matter compared to the others. So Scalia can be criticized, but it tends to be overblown and he did say he was a “faint-hearted” originalist.

  30. Posner is what you might call a brilliant moron, or a genius idiot. His 180 degree turn on gay marriage was basically elaborate trolling.

    1. His decision in the 7th Circuit to bring concealed carry to IL was also, I believe, a form of trolling of Originalists. He wasn’t the only judge on the 3 judge panel, but when he wrote “the Supreme Court wasn’t concerned about a body county when it decided Heller” was admittedly funny.

      Moreover, to me at least, it was clear he was point out to Scalia that it wasn’t really originalist.

      1. Heller was not an originalist decision. If it was, it wouldn’t have granted deference only to arms that were in “common use,” where that subset was the way it was *because* of regulation that had been done in the past.

        1. If it were truly originalist, then the 2A would perhaps not be applied to modern weapons, but rather to only those firearms “in common use” in 1791. In original terminology, the word “firearms” as used in 1791 did not include semi-automatic handguns, for the simple reason that there was no such thing. This is a fundamental problem that originalists prefer to ignore.

      2. Didn’t Easterbrook write that decision?

  31. Why is it so difficult for people to see what is right in front of them?

    The problems mulled over here are the direct result of having too much power in the hands of a centralized government over a sprawling empire.

    It’s true that there is no objective policy debates occurring in the legislature. And the media actively lies and obfuscates about everything, as does Marxist-filled academia. We would benefit from more objective debates and analysis of “the efficiency and distributional effects of potential rulings.” But sorry, a panel of economists to advise SCOTUS as it completes its takeover of all things is not the solution. The solution is obvious once the problem is identified. The problem is that people in Alabama shouldn’t be governing people in San Francisco and vice versa and so on with respect to every little thing. So the solution is to stop doing that. Stop allowing the centralization of all things in D.C. and return prerogatives to the states.

    1. But we wouldn’t be able to impose our values on the far flung peoples of the empire, if power devolved to the states again?

      Still, I’m more of a skeptic these days of state prerogatives, given how states fucked up the 2020 election by changing standards willy nilly, when they results effects all of us.

      In the long run, though, you’re going to need economic and cultural forces for the devolution of power for it to actually happen. A new “decolonization”, so to speak.

      1. If you think states screw things, just wait until the federal government takes over those last few things.

        You’re right about economic and cultural forces. What can be done now is states nullifying and ignoring illegitimate federal acts.

        1. “….just wait until the federal government takes over those last few things.”

          Really, though, what haven’t they functionally taken over through the lever of federal dollars and standards to receive them? There is a lot of ruin in a nation.

          1. Very little, but states still retain some control over elections.

            Then in 2020, Mark Zuckerberg took a page from the federal government playbook and spent $500 million on “elections” in targeted swing states — with lots of strings attached.

            https://got-freedom.org/wp-content/uploads/2020/12/HAVA-and-Non-Profit-Organization-Report-FINAL-W-Attachments-and-Preface-121420.pdf

            1. As someone who has personally dealt with one of those Center for Tech and Civic Life, I could share a story or two, but I would open myself up to doxxing. It’s screwy.

              You know, I remember in school when the Gilded Age was taught. The teacher made a point to say how the Progressive Era took down those bloated robber barons who held too much sway through the power of their dollars. We busted those trusts, and America would never let those Vanderbilt types do stuff like that again.

              Clearly, they were wrong.

            2. *Center for Tech and Civic Life [grants]

              (the Facebook/Zuck front group)

    2. ” Stop allowing the centralization of all things in D.C. and return prerogatives to the states.”

      As soon as your time machine works, you should definitely use it to return to 1788.

  32. Seems like the discussion of gerrymandering missed addressing my pet peeve about the topic. Why is the topic limited to how states go about gerrymandering congressional districts? Seems to me just as big a problem is how the states’ themselves suffer from gerrymandering. In fact in one case it was viewed as bad enough that WV was split off from VA. While they don’t currently appear to be going any place there have been proposals to split up CA into two, three, four, five or more states. While not that drastic proposals to split up TX, FL, and who knows how many other states have been mentioned.

    Previous posts have mentioned the pubs don’t really exist as a significant force in CA but if it was split into two coastal and two interior states (or make up your own if you don’t like those) it would likely make lots of peeps feel they had better representation and those four (or more) states would still have more peeps than plenty of the smaller states.

    Point is while what has been called spacial distribution (in simple terms dems are packed together in districts where a 90% dem vote is common while pubs frequently will with 51-55%). Splitting up the states could address this issue.

    Problem is that it likely would produce more true believers on both sides.

    1. “Seems to me just as big a problem is how the states’ themselves suffer from gerrymandering. In fact in one case it was viewed as bad enough that WV was split off from VA.”

      WV wasn’t split off from VA because gerrymandering. They were split off because those counties wanted to stay in the United States while the rest of Virginia’s counties did not.

  33. Here is a reform that would likely produce results:
    When redistricting time comes around, let the minority party draw the new districts instead of the majority party.

    1. A mischievous but interesting idea.

  34. Don’t we call these experts, economic or otherwise, amici?

    1. Presumably, the ones who are directly asked for their assistance will have their opinions taken more seriously than the people who just want to lobby, er, assist the courts of their own volition.

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