Slippery Slope/Tit for Tat

 One of the arguments of "Hive" is that research shows that in a prisoner's dilemna game which extends over multiple sessions, the best strategy is "tit for tat" but not always.  Straight "tit for tat" can lock the players into a vicious cycle of retaliation, often familiar from Northern Ireland, Israel/Palestine, etc., while the occasional deviation can transform the game into one of cooperation, which is win-win for both parties.  The book arguments that people with higher IQ's take a longer perspective, so are thus more likely to initiate cooperation, leading to group evolution.

It strikes me that "slippery slope" arguments are related to "tit for tat".  Consider SCOTUS nominations--the Republicans start with Bork, the Democrats with Thomas but either way we've evolved away from the Senate confirmations of the Eisenhower/JFK/LBJ era (though from an old Democrat's viewpoint the real starting point was Gerald Ford's crusade against Abe Fortas.  😉

SCOTUS Standards

 NYTimes reports on a letter sent to Chief Justice Roberts claiming a leak of the decision in 2014 in the Hobby-Lobby case.  Although the writer relates it to the leak of the Dobbs draft decision this year, I don't see it as such.  I'm sure over the years justices have told friends and relatives which way a decision went, before the release of the opinion. Speculation on the Dobbs decision focused on whether it was an attempt to freeze or change the decision: a different thing.

What's concerning is the efforts to lobby the justices by becoming friends, efforts which Roberts and Justice Kennedy rebuffed, but Scalia and Thomas were open to. But I don't know where you draw the line; I can't expect justices never to make friends with interests which will come before the court.  The friendship of RBG and Nina Tottenberg is an example: while she claims  to be an objective reporter, it's clear to anyone where her sympathies lie.  

So what's the standards Kennedy and Roberts used? 

Affirmative Action--Three Posts

SCOTUS considers affirmative action today, the occasion for lots of comments; Three blog posts of note: 

• Kevin Drum argues from the experience of California in prohibiting AA that it doesn't make that much difference.  Kevin would prefer class-based action.
• David Bernstein refers to his book on racial/ethnic classification in today's context. He argues that the groupings the Federal government uses are illogical and never designed for the purposes for which they are used.  
• Steven Hayward publishes a chart showing the distribution of SAT scores by group. I found two things surprising: the degree of Asian-American dominance (25 percent in in the top category) and the fact that the group which was next highest in the top category was--wait for it--mixed race. 

Fixing SCOTUS

 I tend to the position that any "fix" to SCOTUS is likely going to be worse than the current situation.  Vox has 10 possibilities discussed here.

I heard of an intriguing suggestion, can't remember where now: each president gets to appoint two justices to the court.  The court is composed of the 9 most recent living appointees. Any others still living who wish can take senior status (as Justice Souter has).  Except for the possibility of the Senate refusing to confirm an appointee, which I've seen handled in another proposal, it seems a reasonable suggestion.  

What Really Matters to Congress: Policy or Offices?

 David Brooks on Newshour Friday said he'd learned, contrary to the assumptions of political scientists,  that people don't want power.  He was talking about Congress not being willing to write specific authorities in legislation, as SCOTUS in this week's decision, says they ought to, rather than relying on agencies like EPA to decide and act.

It sort of fits with something I learned from "The First Congress", a book by Fergus Bordewich on the wheelings and dealings during 1789-91.  I've learned the Bill of Rights was not the Congressional version of the Ten Commandments, words of wisdom widely debated and finally etched in stone.  Some legislators saw them as rather meaningless, sops thrown to the Anti-Federalists who'd extracted the promise of amendments as part of state ratification of the Constitution.

Much more important to Congress was the location of the national capital.  It took months of maneuvering and deliberations before the final compromise which settled it.   

That also fits with another action this week: Congress blew up efforts to rationalize and modernize the Veterans Administrations healthcare facilities.  That reminded me of a similar attempt back in the early 1980's to rationalize ASCS offices. It ended badly.

So my bottom line: Congress doesn't do well on difficult policy questions; it's much more interested in offices and jobs and will never delegate authority to agencies to change them.

Tradition, Tradition...

 Says Justice Alito (who apparently loves Fiddler on the Roof) 

I write that after reading this New Yorker interview with Neal Katyal, who describes Alito's draft decision as rooting our rights in tradition.

A separate point--lots of speculation about who leaked the opinion and why.  It seems to me everyone is making up a story to fit their preconceptions--like Ginni Thomas being the leaker, because she's the woman we liberals love to hate.

History and SCOTUS

 It's unfair that Republican appointees have dominated the Supreme Court for the last 50 years or so.  Elsewhere I've blamed LBJ for this. 

Currently liberals argue that the court is too conservative.  That's true.  But it's also true that the court has not always been a moderating influence, keeping America on a middle way. Back in the days of the Warren court it was fairly consistently more liberal than the country. IIRC there weren't majorities in the country supporting decisions like Brown, Carr, MIranda.  

It's also worth remembering that people on the right were talking about "Impeach Warren".  So far the liberals today aren't talking about impeachment.

The Problems With Executive Action

 Dylan Mathews has a post at Vox: "10 enormously consequential things Biden can do without the Senate".

He writes: "Pushing the limits of executive authority is sure to provoke legal challenges that the Biden administration could lose, especially with a 6-3 Republican Supreme Court. But even if only half of the options below are implemented and affirmed by the courts, the practical effects would still be hugely significant."

I guess my conservative side is showing.  I know the frustrations of facing a deadlocked Congress, a body which cannot decide what laws to pass. But there are problems in going down this road. 

• successful executive actions can be reversed when a new Republican president comes into office.  We can't assume that Democrats will always control the executive, or that the Republicans will come to accede to Dem actions.   Reversals can mean a frustrated and ineffective bureaucracy: one which will know their work is temporary and built on shifting sands.
• using the executive actions increases the power of SCOTUS, meaning it will become more political and fights over filling vacancies even more heated.

I prefer the longer range option of building support in the country which results in electing majorities in Congress which can pass permanent legislation.  That strategy is the one which Dems used for Obamacare.  In the end, it's better to piecemeal our way to permanent reforms than to become wedded to visions of perfect solutions for which the clock will strike midnight.

Will Justice Barrett Disappoint the Right?

 She's almost guaranteed to.  Only Justices Alito and Thomas have not, in recent memory at least, disappointed the right on some decision or other.  Kavanaugh is too early to be a fair case, but I'd predict he also will. (For one thing, he's the father of daughters, which research has shown sometimes leads to more liberal conclusions.)

What are some things which might lead her to surprise conservatives on some cases?

• She's a mother, unlike everyone else on the Court.
• She's the mother of two black children.
• She's a woman, and her two fellow justices who are women are also liberal.
• She's young as justices go, so she has plenty of time to evolve.

She's also likely to change the group dynamics of the court--a 6-3 split may lead one of the majority to distinguish her/himself from the others.

Fixing the Court

 A lot of discussion among Democrats over what to do about a Supreme Court with a 6-3 conservative majority.

I'd suggest one strategy not much discussed, which assumes Biden/Harris win and the Democrats gain a Senate majority:

• end the filibuster in the Senate (might be problematic, given their moderates who might be reluctant).
• spend time fixing the vulnerabilities in important legislation, like ACA and Clean Air, etc. 

My theory is this: over the last 4 years and more, conservatives have filed enough court cases and the Trump administration has changed enough administrative rules that good lawyers can identify the weak points.  Rather than rely on defending rules in the court, preempt the challenges by fixing them.  If the challenge is that the agency, EPA, etc., has exceeded its authority under the law, change the law to provide the authority.  If the challenge is that Congress has exceeded its authority under the Constitution, change the law to rest on a firmer basis.

What's iffy about this strategy is, of course: Roe v Wade. Although polls suggest a majority support its general outline, trying to legislate it would be like gun control.  The fierce minority would prevail over the majority.  I could suggest a compromise which appears reasonable to me, but it's a matter of principle for the opponents.  What would my hopeless compromise be?  Clinton used to say "legal, safe, and rare".  I'd think a compromise which added "early" to the formula should work, except it won't. If you had taxpayer funded abortions in the first trimester with over-the-counter of the "day-after" pill , then court-approved abortions for the next two with the basis being restricted (health and safety, rape, unusual circumstances), perhaps with a prescribed role for a voice for an advocate for the fetus, and taxpayer funding of pre-natal care for those who lose their case for abortion.

The details don't matter, because for people on both sides it's too basic an issue of rights to agree to a compromise.

The Hullabaloo Over SCOTUS

 Back in the 1960's the right was all "Impeach Earl Warren".  Part of the outrage as I remember it was over decisions on crime, part was one person, one vote, and a good part was forbidding the "Lord's Prayer" in schools. There were divisions on the Court, but they tended to be cross-cutting: Justice Black was strict constructionist on First Amendment rights, William Douglas was the epitome of the "living constitution", neither of which fit neatly into the divisions between Democrats and Republicans.

President Nixon started the process of replacing Warren (following a filibuster of Johnson's nominee for Chief of Abe Fortas) and converting SCOTUS to a Republican dominated branch of government.  Since then, in the 52 years, Republican presidents have named 14 justices, Democrats 4.  If things had worked fairly according to the amount of time each party had the presidency, the Dems would have had 7, and the Reps 11. 

Regardless, while there have been ups and downs and decisions I dislike, the country has survived.  We've made significant advances in social areas, and Roe v Wade has survived. 

I predict however the current episode works out, someone looking back 25 years from now will not see a major turning point in legal history with the filling of the current vacancy.  In the long run, the court follows the election returns and the direction of the country. 

SCOTUS and the Albright Rule

In a NSC discussion over whether and how to intervene in the Balkans during the Clinton administration Madeliene Albright said something like: "what are your great armed forces if you never use them"?  I'll transmute that into a rule, named after her:

"if you have the power, use it".

That rule may be applying in the case of the Supreme Court.  Leader McConnell had the power to freeze Obama's nomination of Judge Garland to the Court.  President Trump has the power to nominate a young conservative woman to the Court.  The Republicans may, or may not, have the power to confirm her.  

After the election the Democrats may or may not have the power to expand the Supreme Court to allow a President Biden to nominate a young liberal black woman and others to the Court and the Senate to confirm them.

It's a game of tit for tat (I initially spelled "tick for tack") with no logical ending except greater polarization.  

Personally I would oppose the steps, but I think analytically down the road some sort of new compromise would evolve.  It's the same sort of dynamic which has created a bipartisan caucus in the House of Representative pushing a compromise pandemic bill. They may fail; the caucus may split; but at some point the center will reassert itself.   

RBG RIP

 My wife and I were fans of Ruth Bader Ginsburg, at least in the sense we saw the documentary and then the biipic made of her life.  She preceded me at Cornell by a few years, so I had that thread connecting me to her.

As liberal Democrats we feel badly; as humans we mourn her exemplary life.

What happens with the Court and the 2020 election now?  Lots of speculation, most of which will be wrong.

"A Switch Before Time" Coming?

The Supreme Court famously defanged FDR's court-packing plan by delivering some pro-New Deal decisions--the "switch in time saved nine". 

There has been some discussion of possibly expanding the Supreme Court if the Democrats won the election.  I think it's a non-starter, but some serious people have talked about it. Today's decision on the LGBTQ issue makes me wonder if SCOTUS will tread carefully between now and the election, just in case the polls are right and Dems win big. 

Not a serious thought, but we'll see.

On the Basis of Sex

Today's news about Justice Ginsburg's pancreatic cancer comes a few days after we watched the biopic: "On the Basis of Sex".

It was better than I anticipated, or at least I was more affected by its portrayal.   Ginsburg was 3 years ahead of my sister at Cornell, and she was likely in the same class as a first cousin.  So at least vicariously I knew something of the situation of women in those years, although as far as Cornell was concerned things were changing, at least for undergrads. (I had one female professor in 4 years there.)

President Carter and the Courts

Slate has an interesting piece on President Carter's approach to filling judicial vacancies: Some points:

• he was able to persuade Sen. Eastland to support a judicial commission to pick appeals court judges.
• the result was diversity:

When Carter took office, just eight women had ever been appointed to one of the 500 federal judgeships in the country. (For the purposes of this article, I’m referring to the district courts, appellate courts, and the Supreme Court.) Carter appointed 40 women, including eight women of color. Similarly, before Carter, just 31 people of color had been confirmed to federal courts, often over Eastland’s strenuous disapproval. The peanut farmer from Plains appointed 57 minorities to the judiciary. (He also had more robes to fill: A 1978 bill expanded the federal judiciary by 33 percent, or 152 seats.)

Justices Breyer and Ginsburg were Carter nominees for appeals courts.

LBJ's Biggest Mistake: Vietnam or Fortas?

Was in a discussion this morning on Supreme Court confirmations, which caused me to remember one of LBJ's biggest mistakes. Briefly, without checking my facts, Earl Warren decided to retire in 1968 as Chief Justice. 

LBJ decided on a cute doubleplay--promote his attorney and longtime friend, Abe Fortas, from Associate Justice to Chief, and put Texan Homer Thornberry in to replace Fortas.  In my memory, LBJ could likely have gotten a different person confirmed as chief but Fortas was a bridge too far.  Not only was he a liberal justice, but he had always been an adviser to LBJ, something he continued as a Justice.  (Still not publicly known, he had a yearly retainer from Louis Wolfson, a wheeler-dealer of dubious reputation who had been convicted in 1967.) 

In 1968 LBJ had lost most of the clout he used to have, and people (senators) were tired of him.  So Fortas was not confirmed, meaning no vacancy for Thornberry to fill.  The next year Fortas was forced to resign over the Wolfson retainer, meaning Nixon could nominate and get confirmed the Minnesota Twins: Burger (as Chief) and Blackmun.

The bottom line: had LBJ paid more attention to ethics, he never would have appointed Fortas and continued using him as an adviser. And with better judgment he would have replaced Warren with a moderately liberal justice. Although Blackmun evolved into a liberal justice likely comparable to anyone LBJ would have nominated, a more liberal Chief Justice would have changed the composition of the Supreme Court for decades. 

As I think about it, our defeat in Vietnam seems to have been less consequential than we thought it would be in the 60's and 70's, while the changes in SCOTUS seem to be more consequential.  Hence my title.

SCOTUS Prediction

By this time in 2020 I don't think the Kavanaugh appointment will be much of an issue.  Roe v Wade will still be good law, although the Court likely has a mixed record in approving new restrictions on abortion. ]

[Update: some additional thoughts--the dog which won't bark, which no one is talking about today, is the overturning of a couple Supreme Court decisions, decisions of much more recent vintage than Roe v Wade--specifically the Windsor and Obergefell  decisions legalizing gay marriage.  That surprises but pleases me.  But then, almost everything about the history of gay marriage surprises me.  If you'd asked me in the mid-90's how things would work out, I'd have said at best gay marriage would be another issue like abortion--everlasting. But it's not become that.  What we now call gay rights is still an issue, and that will continue but marriage itself is not.]

How Far Ahead Are Democrats Thinking?

There's lots of comments about the impact of Kavanaugh on the Supreme Court.  There's also Democratic proposals for what they want to do if and when they are elected in 2020.  I wonder though about  this issue:

Given the decision on Obamacare (this name seems to be fading in favor of ACA--not sure why the change) by SCOTUS, what sort of constitutional basis can the Dems use for future health care legislation?  Can they fix ACA in 2021 by reviving the provisions Trump is killing?  Would such revivals find support in SCOTUS?  There would still be the 5 Justices who supported its legality but on divided opinions.  Would the Dems need to redo ACA to base it more firmly on the authority to tax?  Would they want to?

And how about the next bridge further--legislation to provide Medicare for All?

The Importance of SCOTUS

Someone in the Times today wrote to the effect that the importance of Trump's choice for the Supreme Court is beyond calculation.   That's bunk.

The choice is important, but but not that critical.  There was a review in the Times of a book on the Opium War between Britain and China.  The reviewer, Ian Morris, described the writer as believing historical actors were very important, the influence of accident and personal quirks often determining how events turned out.  And that's the way the author told the story of the war.  The reviewer liked the book, but was more in the camp of historical forces.

I probably tend to be in the latter.  A metaphor: society is a big balloon filled with water.  You can shape the balloon, but only within limits.  The same applies to constitutional law and society.