Category: reason

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.

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4/28/2015: Obergefell v. Hodges argued.

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With troops finally scheduled for withdrawal by September after two decades of conflict, America’s intervention in Afghanistan seems destined to go down in history as an accidental forever war. Only peripherally part of the country’s policy debates, and never really occupying the attention of members of the public other than the few who had relatives involved in the fighting, U.S. intervention almost seems to have stumbled on because people neglected to bring it to an end. Even as polls indicate broad assent, ending years of bloody struggle comes with minimal fanfare.

“A majority of Americans (58%) approve of the decision to withdraw all troops,” according to recent Economist/YouGov polling. With majority support among military families and military personnel for a withdrawal negotiated by the Trump administration and enacted (with a few months’ delay) by the Biden administration, the end of America’s intervention in Afghanistan is one of the few issues that seems capable of pulling Americans together these days. If that’s the case, though, why did it take so long?

The problem is that Americans seem to desire an end to the conflict only when they give the matter any thought—and that’s not very often at all.

“More than half of Americans (57%) do not follow any news and information about the U.S. involvement in Afghanistan,” an AP/NORC poll found in October 2020. The age group least likely to pay any attention to the lingering conflict in the region was made up of Americans between the ages of 18 and 29—precisely those most likely to fill the ranks of troops sent to the region.

That inattention to the issue has consequences. Pollsters found that knowledge of American casualties reduced support for increasing the troop presence and raised support for ending U.S. intervention in Afghanistan—but Americans generally lack that awareness. Unsurprisingly, it’s relatively easy to be indifferent to an ongoing war if you’re oblivious to its costs in dead and wounded among your own military personnel and the people who live in and around the battlefields.

That indifference helps to explain why, despite current acclaim for the end (we hope) of the U.S. role in Afghanistan, public opposition to the war only briefly matched support for it—in 2014, during the troop withdrawal of the Obama years. After that, according to Gallup, belief that “it was a mistake sending troops to fight in Afghanistan” stalled at about 43 percent, ten points behind support for the conflict.

Meanwhile, politicians quietly replaced many of the troops pulled out in 2014 with thousands of private contractors who shouldered much of the war effort out of public view. As of November 2019, Brown University’s Costs of War project estimated deaths at 2,298 for the U.S. military, and 3,814 for contractors (deaths among Afghan’s military and police were estimated at 64,124, and among civilians at 43,074). 

“The new data comes amid concerns that the administration could increasingly turn to private companies to carry out the war,” U.S. News & World Report noted in 2019. “Officials and analysts, meanwhile, are raising alarm that the U.S. government is concealing the situation on the ground.”

Of course, concealing the situation on the ground wasn’t much of a challenge when more than half of Americans didn’t follow any news at all about the situation in Afghanistan. They didn’t seek information about a war about which they showed remarkably little interest—and only situational outrage.

“The United States is knee-deep in at least three international military conflicts at the moment — in Afghanistan, Iraq and Libya,” NPR pointed out in 2011. “Now, despite the U.S. military’s concurrent and costly entanglements, the National Mall is quiet and the streets of Washington are pretty much protester-free … Where have all the protesters gone?”

Where did the protesters go? Many of them, it seems, went home after achieving partisan political goals they disguised as concern for peace.

“[T]he antiwar movement demobilized as Democrats, who had been motivated to participate by anti-Republican sentiments, withdrew from antiwar protests when the Democratic Party achieved electoral success, if not policy success in ending the wars in Iraq and Afghanistan,” wrote Michael Heaney of the University of Michigan and Fabio Rojas of Indiana University in a study published in 2011. “While the election of Barack Obama had been heralded as a victory for the antiwar movement, Obama’s election, in fact, thwarted the ability of the movement to achieve critical mass.”

President Barack Obama, of course, increased the U.S. troop presence in Afghanistan before swapping thousands of military personnel out for security contractors. His administration is one of three—along with those of George W. Bush and Donald Trump—cited by The Washington Post as having concealed the failure of the war for years on end.

“A confidential trove of government documents obtained by The Washington Post reveals that senior U.S. officials failed to tell the truth about the war in Afghanistan throughout the 18-year campaign, making rosy pronouncements they knew to be false and hiding unmistakable evidence the war had become unwinnable,” the newspaper reported in December 2019.

That the war was unwinnable was quite an unpleasant truth to conceal through two decades of conflict. But it was made relatively easy by the fact that even many of the participants in the antiwar movement weren’t terribly concerned about the war in Afghanistan. When you add in the uninformed indifference of much of the rest of the population, there was nothing to deter a rotating cast of politicians and military officers from fiddling around the edges of a war like it was a game, ignoring its accumulating costs as they tried to extract victory from an impossible situation.

Ultimately, then-President Donald Trump lost patience with the situation and negotiated a May 1 end to U.S. intervention in Afghanistan—an agreement that President Biden says he’ll honor, though with a delay until September. Well, that’s what government officials say, and we’ve been down this path before. This time, those of us interested in seeing a conclusion to the accidental forever war in Afghanistan will have to pay attention to make sure it finally comes to an end.

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Body cam video shows two Colorado Springs, Colorado, police officers using their Tasers on Chad Anderson Jr. as he stood in his daughter’s hospital room after he refused to give them his phone. Anderson’s lawyer says the man was not under arrest and the cops did not show him a warrant for his phone. Anderson’s daughter was accidentally struck by a vehicle as his fiancée pulled out of their driveway, and cops were trying to take his phone as part of an investigation of how the girl was injured. Andersen was charged with resisting arrest and obstructing a peace officer. Those charges were later dropped. Neither he nor his fiancée were charged for the daughter’s injury. The police department declined a local TV station’s request for comment, citing Anderson’s lawsuit against the department.

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Do I live in an alternate universe?

The media tell me my side is winning.

Salon claims, “We all live in Kochland, the Koch brothers’ libertarian utopia.”

Tucker Carlson says, “Our leadership class remains resolutely libertarian.”

What? Who? Not President Joe Biden.

Biden already spent $1.9 trillion on COVID-19 “recovery” mostly unrelated to COVID. Now, he wants trillions more for an “infrastructure” bill, even though most of the spending would not go to infrastructure. He’s eager to regulate more, too.

Maybe the pundits were talking about former President Donald Trump. He tried to deregulate—a little.

But Trump vilified trade and raised military spending, increasing our debt by trillions.

We libertarians want to reduce debt and believe trade and immigration are good for America. Above all, we believe the best government governs least.

That’s not what I hear from most Democrats and Republicans.

So, how can pundits from both left and right say libertarian ideas are winning?

“In a way, we are winning,” answers the Cato Institute’s David Boaz, author of The Libertarian Mind, in my latest video.

“Over the past couple of hundred years, we’ve moved from a world where very few people had rights and markets were not free—to a world mostly marked by religious freedom, personal freedom, freedom of speech, property rights markets, the rule of law.”

For most of history, no country had those things. As a result, says Boaz, “There was practically no economic growth, no increase in human rights and justice.”

Kings and tyrants ruled, enslaving people, stealing property, and waging wars that lasted decades.

Then, in 1700 “suddenly, limited government and property rights and markets came into the world,” Boaz points out.

The result was a sudden increase in prosperity. Americans now are told that “the poor get poorer,” but it’s not true. Americans are 30 times richer than we were 200 years ago. When America began, rich people were poorer than poor people are today.

“In Colonial America,” says Boaz, “[if] you were traveling and you wanted a place to sleep, you’d go to an inn where everyone shared a bed.”

Benjamin Franklin and John Adams shared a bed on one of their diplomatic missions. They fought whether or not the window should be open.

John Jay, America’s first chief justice of the U.S. Supreme Court, complained about “sleeping with strangers and picking up bedbugs and lice,” says Boaz. “It’s not like that anymore because of the increase in wealth.”

Today, at motels all over America, middle-class and poor people have their own beds.

When markets are free and private property is protected, innovation happens in ways that allow ordinary people to live better. Over time, that innovation multiplies. It’s why, today, most of us live better than kings once did.

Louis XIV had hundreds of servants who prepared him dinner. Today, my supermarket offers me a buffet Louis XIV couldn’t imagine. Thanks to trade and property rights and markets, each of us lives as if we had more servants than kings.

We also live longer.

“President Calvin Coolidge’s teenage son was playing tennis on the White House tennis court,” says Boaz. “He got a blister on his foot and the blister got infected, and the health care available to the son of the president of the United States was not sufficient to keep him from dying.”

Few of us notice such steady progress.

The media give us bad news. “They tell us about cancer clusters and coups in Myanmar,” says Boaz. As a result: “We forget the big picture. It’s important to remember the big picture so that we don’t lose it.”

The big picture also includes progress in fairness and decency.

“We’ve moved from ‘some people have privileges that others don’t’ to ‘human rights belong to women and Black people and gay people,'” Boaz reminds us.

“The direction of history has been in the direction of markets, personal freedom, human rights, democratic governance, and that’s what libertarians advocate.”

COPYRIGHT 2021 BY JFS PRODUCTIONS INC.

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While it may seem obvious that the constitutional right to “keep and bear arms” extends beyond the home, federal courts have been debating that question for years. This week the Supreme Court agreed to hear a case that could finally settle the issue, which the petitioners call “perhaps the single most important unresolved Second Amendment question.”

The case involves a New York law that requires applicants for handgun carry licenses to show “proper cause,” which according to state courts means more than a “generalized desire” to “protect one’s person and property.” Applicants must “demonstrate a special need for self-protection distinguishable from that of the general community,” which in practice means that ordinary New Yorkers have no right to armed self-defense once they leave their homes.

The vast majority of states are less demanding, typically requiring that people who want to carry concealed handguns meet a short list of objective criteria. But several states have laws like New York’s, enforcing subjective standards such as “good cause” (California), “proper purpose” (Massachusetts), “justifiable need” (New Jersey), “good and substantial reason” (Maryland), or a special “reason to fear injury” (Hawaii).

In the case that the Supreme Court will hear this term, the New York State Pistol & Rifle Association, joined by two New Yorkers who unsuccessfully applied for carry permits in Rensselaer County, argues that such policies transform a “right of the people” into a privilege enjoyed only by the favored few. “A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation,” the petitioners say.

They are referring to the landmark 2008 case District of Columbia v. Heller, which overturned a local ban on handguns. While that decision focused on the right to “use arms in defense of hearth and home,” it more generally recognized “the individual right to possess and carry weapons in case of confrontation.”

The possibility of being confronted by violent criminals, of course, exists in public as well as private. “Like the threats that might precipitate a need to act in self-defense,” the petitioners say, the right to bear arms “necessarily extends beyond the four walls of one’s home.”

Two other aspects of Heller reinforce that argument. The Court said its decision did not “cast doubt” on “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,” a caveat that would have been unnecessary if the right to armed self-defense were limited to the home, and it described bans on the open carrying of pistols that were overturned by state supreme courts in the 19th century as “severe restriction[s].”

Two federal appeals courts, the 7th Circuit and the D.C. Circuit, have agreed that the Second Amendment protects the right to carry firearms in public. But the 2nd Circuit, which rejected this lawsuit, concluded that New York’s regulations are constitutional, and four other appeals courts—the 1st, 3rd, 4th, and 9th circuits—have upheld similar policies in other states.

Last month, the 9th Circuit went so far as to declare that the Second Amendment has no bearing at all on a state’s authority to impose a virtual ban on public carry. In a blistering dissent, Judge Diarmuid O’Scannlain complained that the majority’s position “reduces the right to ‘bear Arms’ to a mere inkblot.”

O’Scannlain and Judge Jay Bybee, who wrote the majority opinion, both delved extensively into the historical background of the right to bear arms, early gun control laws, and 19th century decisions rejecting or upholding them based on state analogs to the Second Amendment. The Supreme Court will now have to revisit that territory.

Because of laws like New York’s, the petitioners say, “tens of millions of citizens are being deprived of individual, fundamental rights guaranteed by the Constitution.” Whether that situation continues will depend on how the Court resolves this circuit split.

© Copyright 2021 by Creators Syndicate Inc.

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