As someone who is 1%er in a developing country (well, probably more like 0.1%) and is moving to a developed country in 84 days I can't help but chime in on David_in_Chicago's question and Matt's response.
The tl;dr is that 99% of people would (and should) choose the median lifestyle in a developed country over being 1% in a developing country. Because money can't fix everything and even for the things it does it often takes being far richer than "just" 1% to begin doing so.
First a pedantic note: developing countries are massively heterogeneous. Remember that in 1995 South Korea was still a "developing country". Taiwan still is. But South Korea circa 1995 and Taiwan today are very different than, say, Vietnam. And Vietnam is different from Rwanda in ways both economic, social, and cultural. And the same for developed countries though to a lesser extent. Is being a 1%er in Taiwan better than being median in Italy? Probably, maybe? Taiwan is really nice! Is being 1%er in North Korea better than being media in Switzerland? Come on, no.
Matt alludes to the things money can't buy but only scratches the surface. I mean, don't forget that you'll have a low-power passport and can't get a visa to go visit Japan even though you're rich. (Not a theoretical example, I know several USD-millionaires here who have had Japanese visas rejected.)
Depending which developing country that could include crime, pollution, bribery, traffic far worse than anything in America.
In general state capacity is low. That means police and fire departments take longer to show up, even for serious crimes. Building codes aren't as developed, so your house won't have smoke detectors or grounded electrical sockets. The legal system is less developed, so land lords, neighbors, and employers are more likely to rip you off. No such thing as noise complaints when your neighbor's dog barks 24/7: the only solution is to kill it.
Luckily you won't get in any real trouble for killing their dog because there are effectively no animal cruelty laws yet.
More likely for you or your children to get killed by a truck driver on meth or a drunk driver because the laws and norms around those things are less developed.
It also means things like repaving streets happens less often. That there is no money for parks in the city. No money for national parks. No money to run anti-littering campaigns. No money to enforce "don't burn trash to avoid having to pay for rubbish collection" rules. It means the equivalent of the FDA is much less capable so the news sometimes has stories about how a coffee factory was found to be putting ground up batteries in the product to cut costs.
I could go on at length and I doubt many from developed countries would even be able to imagine many of the things. Our neighbor didn't have their trash collected for an extended period because the trash collectors demanded an extra bribe and the landlord of the house refused to pay it.
If you live in a developed country 10,000 paper-cuts like this simply don't exist.
There are also a whole lot of things that money can fix but you need to be richer than 1% to fix it. In my country, 1% means you have a networth of $800,000 USD. Sending your kid to a good private school here costs $60,000 a year. Even a 1%er can't afford it.
I know very rich people who only eat fruit, fish, meat, noodles, coffee, etc imported from Japan because of their low trust in local food safety. But doing that costs more than 1%er amounts of money.
And not sending your kid to a private school brings a host of issues. One of which is that it is simply harder to get into the best foreign university because many of them don't accept local schools as an entry requirement. There's a reason why even very rich families here end up often sending their kids to very mediocre schools in America and Australia.
And you will be sending them. Because even if you are a 1er here you know that all the universities suck. And you know that unless your plan is for them to take over a family business, they need to build a career and a life in a developed country. And you also know that after years of schooling in a developed country, they're going to have limited interest in living in a developing country.
At the end of the day this is where the question really ends: with our kids. Even rich people in developing countries rarely want their kids to grow up in them.
Just as one example from thousands: if you have daughters do you want them growing up in a country where norms around domestic violence are very different (worse) than in developed countries?
It is the reason we are moving shortly. If we didn't have kids, the calculation would be different. Yes, having maids is great. But I want more for my kids and having maids isn't the most important thing as a parent. The opportunities elsewhere are simply too great.
Brilliant. Thanks for bringing the tradeoffs to life with such detail. My sense was ... I'd lean towards top 1% just because status competition is brutal and I'm a sucker for it but when you put it like this ... the correct answer is clear.
Yeah, that's probably right. I'll still never forget an early board meeting at our start-up where two of our seed investors were debating / dick-measuring who's plane to take the Sun Valley conference that year and thinking ... ok, this really is just a status comp. all the way down. I guess I was thinking the status comp. pressure at the median creates more stress just because of more financial instability but probably not.
I think Micheal’s right. Like have you even been to a place with a lot of yachts? Like some guy thinks he’s the cock of walk with a 180’ yacht and then someone pulls in on a 220’ one and he’s all pissed. And then there is the guy tendering in because his yacht is too big to fit in the harbor and now 220’ guy is pissed.
Edit - and per your dick measuring comment having a yacht that’s so big it doesn’t even fit…I mean…that’s the goal, right?
Funny enough yes. But that wasn't our experience. So a friend put together a charter to St. Barts during COVID and we got a harbor slip next to the owner of a NBA team. It was very clear ours was a charter but it felt like the whole harbor was pretty cool about it. Said differently, the levels are *so* clear as day -- everyone knows their place and it's pretty pointless to be a prick about it. And yeah, Abramovich's *TWO* yachts were there at the same time so there was only one king of the castle that everyone was looking up to.
I have a couple of friends who have owned yachts, but they're both sailing yachts and they tend to make rude comments about "floating gin palaces".
Fundamentally, the big powered yacht and the sailing yacht are different categories of thing, and the sailing yacht is more about, well, sailing it - about sailing skill. The dick-measuring is more about getting certificates or successfully guiding the boat through various difficult waters, or racing, ie personal skill rather than ability to purchase expensive things.
Not go too deep here but I think the closer and harder you look, the more you see how much your behavior is influenced by others and by everything around us. Most of it is stuff you don't even realize you're doing or it's so deep, you're not even questioning why you're doing it. Best example is ... If were a full on FIRE advocate, I could retire right now. I'm not and I don't even think about it. I really like my job, find it fulfilling, get to help others, and think it sets a good example for my daughter ... but, those could also be convenient lies because it also affords a super fun, amazing lifestyle. These are things I think about and talk about most with therapists and try to work on.
School in a place like Massachusetts costs over $20,000 a year. It's just that taxes pay for it. All of the staff at a private school here are foreign hires. People aren't going to take large salary cuts to come work in a developing country. So staffing costs are going to be ballpark around the same as in a developed country. But with zero government support from taxes.
So just naively as a back of the envelope calculation you'd expect it to start around $20,000 a year just to get "public school" levels of facilities.
(In practice there is a lower tier of private schools that hires Filipinos for staff instead of white foreigners and those are cheaper.)
Then you add in costs for nicer facilities and things go up even before you start factoring in status competition.
Which is a real thing, of course. They only have 1,300 spots.
During Covid when students weren't at schools, a group of parents banded together and demanded the school give discounts on tuition since students weren't even at schools.
The school said fuck you, we're charging full price anyway, and if you keep making issues we will kick your kids our because we've got a waitlist of people wanting to get in.
Really insightful post. This is what’s so infuriating about Republican’s attempt to destroy our institutions, rule of law and ability to collect taxes - they seemingly take for granted the impacts these things have on our day to day lives. I guess people like Peter thiel think they can just buy their way out of if but as your post alluded to money doesn’t solve all problems.
Good post but Taiwan is not a developing country by any definition I'm aware of, it's a wealthy country dominated by its high technology industry with a comprehensive welfare state and a Western Europe-level HDI. According to the IMF, Taiwan has been an advanced economy since 1997, the same year as Israel.
This is a really insightful comment. Thank you, I appreciate your perspective (which I otherwise would not have). This makes me think of how all the Russian oligarchs have their kids in Paris and London instead of Russia.
Matt writes: "Narrowly, no. HUD Secretary does not seem like a fun job to me, and I don’t want the pay cut. If I were to hold some kind of public office, I think a local gig would be more fun because it pairs well with first-party content creation."
I yearn for the day when government service becomes a real job. "Service" implies sacrifice, whereas a "job" implies an important task to accomplish by a capable person. HUD Secretary oversees and directs over $70B of discretionary spending, according to guidelines from Congress. Overseeing $70B of spending is a big job and requires someone who is competent and effective in that job. And that person is going to command more than the $246,400 that the current Secretary makes in any other private endeavor.
For comparison, the COO of Proctor & Gamble -- a company with ~$60B in spending -- made $8M in salary & stock last year. Now, I don't think the jobs are exactly equivalent, nor should the government pay $8M for the HUD secretary. But the job should pay more than 3% of what the COO of a consumer products company makes.
10000% agree. It's the least popular thing, but if we made our government positions higher paid, our country would be better off for it. I wonder if there's any good literature on the effectiveness of other countries that pay their civil servants better?
Switch to Westminster system. HUD would be headed by a member of the House of Representatives, who (as in Britain) would be free to do outside unemployment, subject, of course, to transparency and disclosure. Maybe even run a lucrative newsletter offering interesting takes. Then a measly $250k from the government wouldn't be a problem!
(Dodges tomatoes thrown by outraged clean government types.)
I jest, I jest. I'm aware the government is staffed by more than the dozen odd cabinet chiefs. Still, I am a fan of the UK's approach in this area. Not only do I believe their legislature is no more corrupt than ours, but I strongly suspect their system is superior in terms of talent acquisition.
As someone who lives in the UK, the big failing of the UK system is you only have a couple hundred MPs that can reasonably serve as ministers, and thus you end up with a lot of people doing jobs they have no background in because that's the job that's open to them.
To give an example, Michael Gove in his tenure in government was variously in charge of education, justice, food and the environment, no-deal Brexit preparations, pandemic response, and housing. No matter how smart a person, nobody can actually have depth of knowledge about such a wide range of things. Theoretically the civil service is there to ensure they're well informed about the area, but in practice handing someone responsibility for an area they haven't thought deeply about in their entire life just means they constantly try surface-level things until they move on to a different department.
I think the US system of appointing people who have experience in the area in question works much better in practice.
Fair point! But that issue in Britain could be finessed by allowing a certain number of non-MPs (say, 4 max per administration) to head ministries. Maybe make them temporary Lords for appearances' sake while they're in government? Or, simply allow politically-appointed, salaried experts to be brought in to advise government ministers (in essence a non-MP co-minister or deputy minister). IIRC this is already done to a (growing?) extent in the PM's office.
People can be appointed as Lords and then head ministries. The problem is that the accountability system for ministers relies on them being MPs and ministers in the Lords are held accountable by the Lords instead of the Commons.
Politically appointed experts is the origin of the "special advisor" system (spads, as they are known) and that quickly degenerated into being political advisors rather than subject-matter experts.
Ministers do not have the ability to do outside employment in the manner of a regular MP. They will be allowed to do very minimal things in certain circumstances (e.g. if they're a lawyer or a doctor, they could do the minimum work needed to maintain their license), but no more than that.
Unfortunately, this is always susceptible to cheap political tactics along the lines of "why should more of your hard earned tax dollars go to pay all these out of touch bureaucrats in the DC swamp????".
I've just about given up hope that the U.S. government will ever pay a competitive wage. To take the most obvious example, Congress has a COLA written into law since 1989 so they never face the bad optics of voting for a pay raise for themselves. But instead, for every year since 2010 they have voted to not accept the cost-of-living adjustment. This vote never makes the news. I'm confident there is not one person in the country whose opinion of Congress improves because of this vote. Yet they give themselves an effective pay cut year after year out of terror that, what? That people might get an effective government? That voters will storm the Capitol over a 2% pay raise?
They do this for the same reason that CEO's often take $1 salaries and other theatrical stunts: it is just virtue signaling. The congressional Salary is not their primary source of income. Just like the CEO who makes $10 million in stock compensation to go along with their $1 salary.
Sure but there have to be people who won’t consider running for Congress bc they don’t have their own financial cushion. (There are other reasons too of course- most notably the need for nonstop fundraising)
completely agree. Matt has pointed out many times that if you don't pay market rates, the population will skew towards two extremes: crooks and fanatics.
You could put "people who do not need the salary" in either bucket.
Really, there’s a third extreme: incompetent individuals who wouldn’t be able to make more than the government salary in the private sector. There are definitely a handful of these in Congress.
British MPs were not paid until 1909. Paying MPs had been a demand of a whole series of working-class and other left-wing/liberal movements since well before US independence, which is why salaries for Congress are written into the Constitution.
One reason that this is such a mess is that to most regular Americans, $174,000 a year sounds like an awful lot of money. If you were, like AOC, a bartender before entering Congress, you got a massive pay bump.
And yet, most Representatives, because the skills needed to be a good Representative generally enable you to get a well-paid job outside of government, took a pay cut to enter the House, usually a significant one.
I think that's a bit glib; while a decent portion of congresspersons are wealthy, by the time you reach the bottom of the Top 50 members by wealth you're out of the range where passive income would outearn the congressional salary, and there are a decent number of house members especially who only have congressional income.
I think some of them are likely to be true believers, the type who think the sacrifice is honorable.
Between them and the people who do not need the money, it is easy to see how it would be hard to scrape together the majority required to approve the COLA (because they know someone will describe this as "giving themselves a raise").
The real problem is that at the moment, the people who don't find it a financial problem to take elected office are people coming from a job that pays less than $100,000 and the super-wealthy. If you're rich enough, the salary isn't the point; if you're middle-class, then you're fine on $174,000 even with the big increase in expenses.
But the classic "professional/managerial upper middle class" - people earning, say $200,000-$1,000,000 a year, are the people who are going to find a congressional salary financially challenging. And I think those are the people that many of us think make ideal congresspeople.
Honestly this is a problem with political offices and government work in general at the lower levels - they can't pay enough to really attract people who want to have it be a career so they lose a lot of capacity to be effective. And we celebrate this, because it's supposed to be some 'commitment to service' but then we leave small town mayoral positions entirely to retirees and independently wealthy people.
I posted about this yesterday. The salary for a member of the Congress has taken a 30% haircut over the last 30 years. Assuming this trend is broadly applicable across most government positions. My sense is this is the root cause of the talent issues. You pay for talent or you don't.
My longstanding take has been that Rep should pay $1M, and Senator $2M. That's barely a whole $1B ($635M to be exact) out of a $6.134T budget. Roughly one ten-thousandth of Federal spending.
Even better: Index their COLA to real GDP, but pair it with two other incentives!
1. At the end of every term, current Congresscritters OR alumni who have served within the last two terms will receive a bonus indexed to GDP growth for the two previous terms they have been in office. So, you get rewarded for the term you've just completed, but if you make policy that turns out to have been correct, you'll still get a bonus check two years down the road even if the voters disagreed with you.
2. Likewise, a similar bonus will be applied to their pensions**.
** This one's debatable. If we're paying so damned much up front, we probably could actually get RID of the pension system, and they could fund it themselves. But if we're keeping it, then this is still a good idea.
I think there's one really good argument for a pension system for congress: they are (or should be) ridiculously busy people. They shouldn't be spending chunks of their ability to make complex long-term decisions on their retirement: they should be spending all of that ability on making decisions for the nation.
I’ve recently thought about this in the context of a US war with another big power like China. If that happened, I would like to volunteer to serve (realistically in some bureaucratic or programming capacity, because I’m in my thirties and have a garbage knee), but even if I got a direct commission as a Major or other O4, I’d have to take around a 60-70% pay cut, which would make it difficult to cover my rent and family expenses. I’d still probably do it because the country would be in danger, but the logistics of the switch would be quite tough.
I will disagree. When assigning your heaviest and highest quality human assets, you ideally want them where they can do the greatest good. Your highest quality engineers, for instance, should be working on your most valuable and technologically risky projects and not on making marginal improvements to your day-to-day workflows. The reason is that improving fixed workflows can normally only give you a one-off improvement in your ROI (or worse, just a one-off lump-sum improvement in your bottom line), while disjunctive improvements can lead to continuous growth. Most of governance is closer to the "improve fixed workflows" than it is to "find new products and markets and generate growth", and as such it's _not_ where we as a society should want our best and brightest to be spending their life's work. (It's actually worse than that, since much of government is a pure deadweight cost center. Often necessary, but trust me those are the last places you want to spend your career if you're smart and ambitious, no matter how much they pay.) We are as a society _much_ better off with our best managers and entrepreneurs in the private sector growing the pie, than we would be if they were in government slicing the pie, no matter how well they sliced it.
Private sector workers can also be working on slicing rather than growing pies. Parts of the private sector are engaged in activity which has private value but zero or negative social value. (Zero-sum competition, rent-seeking, selling people literal or metaphorical opiates, etc.)
I don't see much evidence that private sector compensation is a good match for social value.
This presumes most government work only makes changes on the margin. And in practice that is probably true. But government can also be extremely high-leverage in having both positive and negative multiplier effects. Take the Fed for example ... screwing that up can tank the economy as a whole. Likewise if the HUD Secretary could figure out creative ways to make strong NIMBY changes, not just from the own particular registered power, but also by using that position to influence local areas, convince and cajole and provide leadership ... think about the housing theory of everything impact on society. And if they just structured policies to give money their crony friends and enable another 2008 housing collapse ... that also would be terrible. Both are high impact and we'd do well to have strong, competent leaders rather than just careerists tinkering on the margin or clueless political appointees just trying to score points in the media.
I absolutely agree that government can have large negative multiplier effects. Our disagreement is that I believe that they can have at most capped positive multiplier effects. Look at it this way: The distance in effectiveness between the current US government and North Korea is very large. The distance in effectiveness between the current US government and (Switzerland/Singapore/name-your-favorite) is pretty small. If we recruited the best and brightest into government service, we might bridge the gap between the US and the best in the world. We would likely find that to be a loss, given what the best and brightest are capable of in areas where they can really shine. Spending a lot of resources optimizing sectors where the upside is capped is a mugs game.
I generally agree. But the US is probably the wrong baseline. Despite all our complaints and possible risks, we have high-state capacity, rule-of-law, a large welfare state, robust civil service, large investments in public infrastructure from transportation, sanitation, water, regulated financial markets, etc ....
The distance between a few countries that are arguably better in a dimension or two _is_ small. But compared to a baseline of any undeveloped country you want to list, there is a massive gap. Some of that is just compound interest of prior investment, some of that is maybe contingent on culture or natural resources. But a bunch of it is deliberate (sometimes trial and error) build-up of government capacity that enabled more efficient society.
All that said, my take is 90% of benefit comes from rule-of-law and nightwatchman style state basically gets you there.
I’m curious about your position here because this is usually operationalized for most government employees through strong civil service protections and unions which I thought you were against.
I’m with you in general with this comment but I don’t really have a sense of how you would make it work without a single scorecard like profit and loss.
Neither the head of HUD nor the COO of P&G have a union or civil service protections either. Those make it harder to fire people which I think is an impediment to excellence.
Sure I guess I was looking at where you said you wanted government service to be a job and like generalizing it. I agree we should be paying more and expecting more from leaders but generalizing that down to the rank and file isn't as obvious how you do that absent much more clear objectives and non-objectives.
Even as someone involved in doing civil service outside a union there's a lot of icky parts seeing the sausage get made.
Obviously civil service protections are not an impediment to individual excellence. Nobody refuses to take a job because it has civil service protections. On the other hand, it will protect some low performers (from departing) which is an impediment to average performance.
The term "service" in general has been defined down way too much. Very, very often you'll see references to someone who "served on the board of XYZ company" or something similar, and it seems ludicrous to frame it that way, like "oh, that must be so hard, thank you for your service."
Serving on a board is voluntary and generally non-paying work. I served on the board of a non-profit which collected discarded computers and put them in libraries and schools for 17 years (when many libraries and schools had none). Many of the employees (who tested and assembled working computers) were disabled. I served on the board for the employees and the community (as did the other board members). Some of the time, it really is service.
Fair enough - I'm thinking of corporate boards, but I suppose there are plenty of other boards out there. It sounds like you did good work for a good cause and that's a nice thing to do.
It’s not about the $ for the HUD secretary. It’s about the boards you get to sit on, the endowed teaching position and other goodies you get afterwards. Still not P&G exec money, but pretty sweet high pay/low effort post government gigs.
I absolutely wasn’t saying that it is good. I was just pointing out that too many “public servants” think that they need to make up for lost income by cashing in post government.
I think a better comparator would be senior executives in non-profits and other "third-sector" jobs. Those are - like government - jobs where those working there expect to earn less than their counterparts in the private sector.
CEOs of large non-profits are typically being paid something in the half-million to million dollar range, ie two to four times what the HUD secretary makes. Most of those are somewhat smaller than HUD, in money terms, but larger in staff terms - International Rescue Committee has c. 11,000 staff (2018) to HUD's 7,000 and pays its President $800K. It only spends $800m a year (2020). HUD disburses a lot of money rather than directly spending it (e.g. it doesn't employ construction workers, but pays contractors to build housing), so perhaps a grant-disbursing foundation is a better non-profit comparison, but the Wellcome Trust employs similar numbers to IRC or HUD, spends several tens of billions, and pays its CEO about $600K (it's UK-based, so it pays £450K).
Is there any evidence that bureaucratic performance will improve if we utilize private sector individuals rather than members of the career civil service?
I'm career civil service in a municipal bureaucracy. And the civil service compensation structure is bad and has perverse incentives but the primary issues with it are:
1. Lockstep compensation.
2. Compensation based primarily on seniority.
3. Compensation overly tilted towards benefits.
4. Pension plans that encourage burnt out employees to hang around after they lose the enthusiasm for the job.
5. Low entry-level compensation for white collar jobs.
The items I address above do cause issues. I've seen many burnt out employees in their late 40s decide to hang around to get the pension. And they're deciding to hang around a decade plus. That's terrible. The low entry-level compensation is a big problem when times are good.
The only reason I ended up in the public sector was due to the Great Recession. During the brief covid recession, candidate quality improved significantly. And once it ended we began encountering the same problems filling positions. Pay for accountants, lawyers, developers is just too damn low to get top candidates.
By contrast, I'm very skeptical that the public sector bureaucracies really would improve if we had more of a revolving door with the private sector. The private sector and public sector have important difference and the skill-set for one isn't as valuable for the other.
Number 4 is underdiscussed. I do consulting in an industry where about half of the companies still have pensions. Once people get only a few years in, many will stick to a pension job, even if they're miserable and make everyone around them miserable.
I'm going to leave my job for QOL purposes but due to the pension I'm better off hanging around for another 2 decades unless I can hit 180k. And that right there shows the public compensation model is bad.
FWIW, my opinion is we made a big mistake killing pensions in favor of voluntary 401k/457. Instead we should have killed them and replaced them with mandatory 401/457.
On the other hand, it looks like maybe 60-80% of the problem is solved with 1) default contribution rates (out-out rather than opt-in) and 2) default selection of target date funds.
People can still opt-out and contribution rates can be too low ... but it seems like most people don't actually think about this stuff and go with the default (which is why the option with opt-in was such a disaster for contribution rates).
Just spitballing, but I wonder if there could be "profit-sharing" amongst reformed government agencies. You appoint a new head, and give them the same budget as the previous administration. But you let them restructure the org and make whatever cost-saving measures they deem appropriate. Let them do this for a year or two, and then have an independent source evaluate the reformed agencies functioning and outcomes. If there were significant cost savings, then the agency head can distribute the "saved money" as bonuses (retroactively increasing the remaining employees' pay), and, if necessary to retain or attract talent, increased salaries for the employees going forward. If, as I suspect will be the case in many departments, there is a lot of low-hanging fruit in terms of increased productivity and "dead weight" actively dragging things down, then an incentivized reformer would have lots of easy wins to enact and increase both employee and citizen satisfaction.
Another problem ... I bet these agency head positions are pretty feckless jobs just because the nomination and approval process makes them rotating seat-fillers. The more politically independent Fed chair who serves across administrations seems like a way better solution.
I just woke up and I cannot believe what I actually watched take place at the RNC last night.
Hulk Hogan gave a weird semi LARPing speech as The Hulkster.
Kid Rock sang a song (not bawitaba, what!?)
Donald Trump gave the longest, rambling speech I’ve ever heard a person give in a public forum.
It was a circus of reactionary mediocrity.
I also forgot why I hated Trump so much. Last night, while he was going off about immigrants, my wife started getting emotional. She was an undocumented immigrant who was brought here as a kid. She was bright, creative and fun but she and her family really struggled. They all eventually got their citizenship but it was experience that made serious impact on her.
There is something about being a man and seeing another man make the woman you love cry. The rage is real. I had forgotten what that felt like.
That sucks, I'm sorry your wife had that experience.
But we can still laugh at Jim Justice, governor of West Virginia and owner-operator of Shoddy Mineshafts, Inc. saying verbatim, "we become totally unhinged if Donald Trump is not elected", with the camera then pulling back to show a happy dog sitting on a chair next to him: https://x.com/Acyn/status/1813357303820886054
If you’re Kid Rock, you can’t possibly pass up a chance to drop the lyric “start an escort service / for all the right reasons / then set up shop / at the top of Four Seasons” at a Republican Convention. Incredible.
Your honesty is refreshing. More people on the left should acknowledge their hatred. Take down the hate does not live here signs and live a more truthful life.
I have not found people on the left reluctant to say they hate Donald Trump. I mean my strong feelings of hatred were a serious source of mental anguish for me for a little while there.
I agree and I felt that too. But I let it go because it diminished me. The lefts gripping with hatred towards Trump hurts their ability to defeat him. If they took more of a Nate Silver posture they’d be much better off. But they lean far too much towards Joy Reid. I think acknowledging they have a hate problem is a good first step. But then they’ve got to let it go and get to work. They should have done this a year ago.
No, but Trump being out of the daily limelight for a while probably did lead some in the Democratic coalition to temporarily focus their hatred (or perhaps more accurately, intense dislike) towards other members of the coalition they find annoying.
I think Matt's comments on the judiciary, while understandable in light of recent SCOTUS decisions are both too cynical and uninformed. Yea, people have biases, judges aren't immune from them, etc. But the judiciary did stand firm on the various nonsensical, evidence free electoral fraud allegations the Trump administration made. We should appreciate that rather than take a page from conservatives and dismiss the entire legal process as a sham where judges legislate their feelings from the bench. I also think he might benefit from reading some cases. Quite a few of the most controversial expressly say 'Congress could change this by writing a law, or by writing a slightly different law than the one they did.' Congress then proceeds not to write or change any laws and people blame the courts.
Lawyers are often messengers who get blamed for the message.Tell the client that, following basic grammar and English reading comprehension, they will be in breach of the contract they themselves signed, and they get mad at you.
Tell a client that what they want to do is illegal, and they get mad at you, instead of at the lawmakers who made the law. Tell them that if do it a slightly different way, it won't be illegal, and they get confused and again mad at you. They may have a point that it doesn't make a lot of sense, but a lot of the law doesn't, which shouldn't come as a surprise to anyone who's spent much time around politicians; I don't make the laws, I'm just the messenger.
Happens all the time, and isn't really that different from people getting mad at courts for reading a statute Congress wrote and saying, I have higher LSAT reading comprehension scores than you do, and this is what it says. And, since it's a disputed point, if a court substitutes its view of what would make sense for what Congress actually wrote (with rarely applicable exceptions such as for typos or truly unintended absurd results), the court is usurping the politic making role of Congress.
This is the best explanation of why so many people get irrationally mad (in my view) when court cases don't come out as they want. If you apply a policy lens to a legal question, your vision will always be blurry.
For the record I do think the situation with Clarence Thomas is totally disgraceful and a better functioning system would remove him from office. I also think we've had some mind bogglingly awful decisions that were ideologically charged and that is in no uncertain terms a bad thing. Maybe we do need term limits. I'm not against that either. But let's deal with the situation as it is.
No one--including appellate lawyers and law professors--believes SCOTUS to be free of ideological bent, but also a lot of cases are actually decided in ways that aren't pure hackery. About a quarter to a half of decisions are unanimous.
People don't tend to have ideological blinders on for every minor case that comes before them. On the really big issues I don't think your point holds. The justices are far more ideological (or even partisan) than judicious. And I think that applies to the liberal minority as well as the conservative majority.
What an amazing coincidence that all of the Republican judges with their 'higher LSAT reading comprehension' (seriously?) happen to interpret the law on guns, affirmative action, Chevron deference, outdoor camping, abortion, presidential prosecutions, hanging ballot chads and more *exactly* along the lines of their party affiliations! And then all of the Democratic judges do exactly the opposite.
It's funny how conservative plaintiffs happen to bring the majority of their cases in the district of 1 single West Texas judge, who by coincidence always rules in their favor. Dispassionate objective interpretation- just balls and strikes!
Another thing about judicial review I find hard to take seriously is how often appellate court decisions are reversed 9-0 at the Supreme Court. For example the SC reversed the vast majority of appellate cases brought to it in this term, including a 79% reversal rate for the 9th Circuit. If JR is just objectively reading the text of a law, clearly some body of judges is consistently it getting it very wrong here. Which one is it?
Life is messy, and of course there's often more than one thing going on. But just because the boundaries between two things are blurry and not clean black and white lines doesn't mean there isn't more than one thing. Some of what I described and some of what you described.
One can of course choose to always refuse to talk the thing I described and instead focus on the thing you described. But that doesn't mean the thing you want to talk about is the only thing in play.
You are an attorney, correct? Alternate take- American society is dramatically over-lawyered, with every single tiny issue subject to endless litigation, arbitrary judicial power, and of course billable hours for the lawyers. People who benefit from this state of affairs, not only financially but status-wise in society, of course have great rationalizations as to why the world should work this way.
Instead, judicial review should be dramatically cut back, legislative power to make solutions should be enhanced, and private litigation in general should be made much more difficult. The courts should be a night watchman state with a narrow remit to guard the Bill of Rights, and that's it
Yeah, why can’t legislatures just write completely unambiguous laws that everyone always agrees on! Then you don’t need pesky judges to adjudicate disagreements!
How do other developed countries that don’t have judicial review manage? America is one of the world’s most litigious countries- are you saying any other model is impossible? That’s a very America-centric POV
If private litigation is made much more difficult when it's already ruinously expensive, how do you propose that people adjudicate disputes and contract breaches?
How do you think the rest of planet Earth works with 'loser pays' rules? We're so exceptional in requiring that both sides to pay their own attorneys' fees that it's literally called 'the American rule'. Why should we be the only country in the world that does that?
That would require legislatures to be effective, and require actual fair electoral systems, rather than custom-built districts. It's impossible, unless the US legislature becomes a unicameral 50+1 system instead of the garbage it is now.
The 9-0 decisions should ideally come from one circuit court splitting heavily with all of the others in some manner. Though in the case of the 5th Circuit as you say, it's more a matter of pushing hard and to see how far this SCOTUS will go along with them. Though usually, they can get at least one of Alito or Thomas to ruin a unanimous vote against them...
Thought I'd expound on how I'd like to see judicial review done right:
1. All judges picked in a secret process by Congress, the votes are secret, and require a supermajority to approve each judge (this is how Germany does it)
2. Individual judges have no power to find a law unconstitutional (sorry Aileen Cannon), but can only refer cases to a full appeals court. (The US did a version of this from the 30s through the 70s BTW)
3. A full appeals court of 15 judges requires a supermajority of 9 to find something unconstitutional
4. The judiciary is limited to reviewing government actions around the Bill of Rights only- speech, religion, due process, etc. Any laws passed regulating a for-profit corporation are completely exempt from any judicial review. If Congress passes it, that's the final word
5. Congress may overrule *any* judicial decision on *any* topic- they just have to pass the overruling law in 2 Congressional sessions in a row
6. Agency heads are appointed by Congress for 4 year terms, not the President. (We should be reducing presidential power anyways). Again, to find an agency interpretation of a law impermissible should require 9 out of the 15 members of a full appeals court
1.a - This could lead to giving more power to judges because legislators can choose justices who will make hard decisions for them, but then not be responsible for their vote for them
2/3 - fine.
4. Why would the judiciary be responsible for the bill of rights, but not conflicts between the states, conflict between the federal government and states, conflict between the president and congress, etc.
4.b If congress passed a law confiscating all assets of a for profit corporation, the owners have no legal recourse? Is this just for profit corporations because they are taking advantage of the government liability shield, or would you apply this restriction on legislation to partnerships, sole proprietorships, etc. ?
5. I'm broadly supportive of this, but would require a 60% majority instead of 50%+1
6. Torn between my yes to agencies moving under congress and my no to giving an agency head more power than federal judges. I think I'd be willing to support this if when a 9 member majority of a 15 judge panel found that your interpretation was unconstitutional, then you were removed from office for cause.
1. Congress can form an expert panel to examine judicial nominees and their record to-date, and then make nomination recommendations, like all of the other developed countries in the world that I'm aware of
4. They can do half of those things, but part of being an actual republic and not like a loose confederation in my view is that when Congress passes a law, then the states have to abide by whatever that law is. So that would resolve 'conflict between the federal government and states'. I would need examples of 'conflict between president and Congress'
4b. Yep. Partnerships, sole proprietorships, yep
5. Sure, I'm not married to like all of the specific details there. But I think requiring that the overruling law be passed in 2 separate Congresses removes some degree of intense populist pressure. If it's a good idea to overrule the SC, that should be self-evident to Congress over a long period of time and not just 1 election cycle
6. I don't think judges typically find agency interpretations 'unconstitutional', they just say that the agency doesn't have the power to do X based on the law as-written. Your idea seems a bit unfair if the US continues to lack judicial advisory opinions, as civil law countries tend to have
4. Supposedly the federal government is granted specific explicit powers and the rest are reserved to the states/people per the 10th amendment. I'm assuming you would get rid of that and simply grant Congress supremacy over everything.
4.b. Yeah, I'm against any part of government being able to do whatever they want to something just because its owned by a business. The government shouldn't be able to seize all of Vanguard's assets because its a business and there be no legal recourse for anyone involved.
5. Think I generally agree, but would probably put a time limit on it of ~3 years. Otherwise you could have a Congress pass it in the lame duck session and then immediately pass it again. Still prefer the 60% threshold because if they are going to overrule the court, I think it should be obvious to them just like you would require the court to have a 9/15 super majority.
6. Politics isn't beanbag. If as an agency head you agree that something is a legitimate exercise of power that a super majority of the justices disagree with, there need to be consequences. A key point of making it harder for judges to rule something illegitimate is to get the agencies to push the boundaries less and I think this is a good way to do that. I'm open to other suggestions so long as they provide a significant deterrent.
His wording was that any regulation would be considered unreviewable by the court. Maybe a "takings" is an exception, but there opens pandora's box because many regulations could be considered a "takings."
To describe #4 differently, it means that no for-profit corporation can ever bring suit to challenge the enforcement of any law or regulation, except on grounds that the law or regulation violates one or more of Amendments 1-10?
I think it would be cleaner just to require a super majority. This is in keeping with our constiution, where the "highest" powers of the political branches usually involve super majorities. It would also be in keeping with Marbury, which IIRC was a 2/3rds majority.
I'm not sure I understand the question. 'The winning party or parties appoints the agency heads' is standard here, just with a different appointer, and also standard in parliamentary systems to my knowledge. If Dems want to run the agencies, they need to win the Senate?
I didn't realize your intent was to have the party that controls the Senate lead the bureaucracy. In that case, while I don't know whether I agree or disagree with your system, it makes internal sense.
Are you aware that the Supreme Court decides what cases to hear, and rejects the vast majority of appeals at that stage? I don't think it's surprising that when they do hear an appeal they're highly likely to reverse the lower court decision - if they knew they would uphold it there's not much point in hearing the appeal in the first place.
"If JR is just objectively reading the text of a law, clearly some body of judges is consistently it getting it very wrong here. Which one is it?"
In the context of your point regarding appellate reversal, it's the second one. The 9th Circuit is a very "innovative" and activist circuit along progressive lines, just as the 5th (and to a lesser extent the 11th) is along conservative ones. This is widely agreed on by observers regardless of political bent. One needn't disagree with the 9th Circuit or think that its decisions are bad to acknowledge that it's an influential Circuit covering a highly populated and economically important area of the U.S. that's nevertheless inclined to push the envelope on decisions.
OK, so the 9th & 5th circuits aren't practicing true judicial review? I mean, just to make your statement, you're admitting that in at least 2 circuits JR is just a cover for their personal political views and isn't 'balls and strikes'. Once you've admitted that..... you see the problem?
Honestly I basically think of judicial review as kind of the exclusive reserve of SCOTUS, but that's not formally correct, so I take your point regarding the lower courts.
Ok you've proved that judges aren't a computer algorithm -- but they've never been supposed to be that. They've always been supposed to use judgement and -- if anything -- they did so more and applied their own values more freely at the founding. (why I think originalism correctly applied wouldn't narrowly focus on history).
Hence, why they are appointed via the political process because they do exercise substantial powers to decide what's fair and act as a coequal branch.
They will always have biases and values. But the fact they change slowly and are relatively politically immune and steeped in a professional sense of the law makes them better at deciding defaults and interpreting rules than the politician of the moment. At least one election can't swing them in an instant.
There's some sense to what you say. But let's say that the nation turns strongly in a liberal direction over the next few years and stays that way (it's hypothetical; stay with me here) but the Court remains strongly conservative over the next 30 years due to the Bush Jr/Trump appointees. Is that the way the system should work? Stability is one thing; being ruled by the dead hand of long ago Presidents is something else, in my opinion.
Basically, outside of gun control and requiring the recognition of same sex marriage (and continuing to apply good 1a precedent) the current court hasn't said almost anything can't be done by the federal government. What it's repeatedly done is said: no, you can't do that without passing a new law or no that has to be up to the president congress can't do that. And, yes, those choices often do reflect conservative values in where congress has to make a clear statement or in denying agencies power to make changes on their own.
But that's only infuriating to the left because the country is so closely divided that they can't just expect to go back to congress and slap on a quick fix. And sure, it is frustrating but it's not even sorta standing athwart the clear will of the people -- indeed, it's so frustrating because it has enough power to swing things in favor of the 48% rather than 52% of the country but that's not unreasonable for a mechanism in a republic. And when the country really shifts substantially usually the court does too even if the same people stay on it (they aren't unaffected by culture).
Oh, the Court is going to do what it's going to do. But just don't insult us by saying, "hey, if you don't like this then just pass a law in Congress, easy peasy."
It's drawing blood to get anything controversial through Congress. We don't need the Court mocking us about it.
But see my other comments. Most of what the court has done recently doesn't stop a congress and president willing to pass laws. Loper v. Bright only ruled that the court doesn't presume deference to the agency's interpretation it doesn't prevent congress from passing a law explicitly saying: defer to that agency. VRA preclerence, again the court just required congressional fact finding. Even Dobbs -- which returns something to the states which wouldn't be a thing without SCOTUS -- might allow simple federal preemption and certainly would allow a single payer system to offer abortions (state governments can't interfere with federal employees from doing their jobs). And even if not ultimately it still doesn't force anything on states so it's hardly being ruled by the dead hand of the past as much as democratic choices at the state level.
Mostly the way SCOTUS ends up benefiting conservative policy goals (could change with new norm breaking Trump appointments if 4 justices die as he's disillusioned w/ fedsoc) isn't by saying "you can never do that" but with rulings that make it a bit more difficult to do some things.
There are very few exceptions -- mostly gun rights but given that's actually in the bill of rights I don't have an issue saying we need an amendment to change the situation [1].
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1: While the left correctly points out the importance of the militia clause in reading the 2nd amendment I don't think they have thought very clearly about what taking that seriously really means. After all, it prevents the federal government from doing something so it can't possibly mean that it allows the federal government to make guns illegal for anyone not in the national guard and also to legislate who counts as part of the guard -- together that wouldn't constrain the federal government at all.
So, at a minimum, if you give the militia clause weight, it must protect the ability of states to do exactly what they did at the founding -- declare all adult citizens members of the militia and let them carry normal infantry weapons. In other words all the red states can let their citizens carry full auto assault weapons and the federal government can't do anything. And if it's incorporated against the states then - taken seriously - it protects all assault weapons so I think most of the left probably prefers the self-defense of Heller to taking the militia part seriously.
(though personally I think that's backwards. Assault weapons seem scary but handguns are ideal for concealed carry and use in crime hence why they are 95% of gun homicides. I'd take a ban on handguns in exchange for a right to automatic assault rifles in a flash.)
The militia clause is inextricably linked to the term "bear Arms" which refers to military service, both now and in the 1780s. It also refers to this right as belonging to "the people", which when used elsewhere throughout the Constitution refers to a collective entity engaged in a collective activity (e.g., "We the people ... do ordain and establish this Constitution...), while using "person" or "persons" to describe rights specific to individuals.
I think if states wanted to base gun ownership on their interpretation of a well-regulated militia, that would be fine -- if they meant it! It couldn't be "yeah, everyone who has a gun is in the militia" without doing anything else. Make it a real militia! I'd be happy with that, and drop any concern about the federal government being involved.
But that would never happen, which just means that our originalist Supreme Court has decided they're "living consitutionalists" when it comes to the well-regulated militia clause. Like Humpty Dumpty, they decide what the words mean, even beyond the absolutely clear meaning.
A high number of 9-0 reversals are of outlier decisions in low-profile "circuit split" cases. Due to the way that circuit precedent works, it's fairly common for this sequence to happen:
(1) moderately complex issue presented in case that looks easy (often due to poor briefing by the parties)
(2) court decides moderately complex issue without realizing it's complex, often with only a paragraph or two of analysis
(3) all subsequent panels in that circuit are bound by decision (2), like it or not
(4) other circuit courts have different cases more clearly presenting the issue, and they disagree with interpretation (2)
(5) SCOTUS grants review of issue (2), perhaps after decades, and 9-0s it.
For example, next term the Supreme Court will decide an issue involving the standard of evidence under the Fair Labor Standards Act, in which the Fourth Circuit is an outlier. It appears that the Fourth Circuit became an outlier on accident, quite literally by sloppy copy-and-pasting. All Fourth Circuit panels have been stuck with that sloppy decision since. The Fourth Circuit's decision is obviously wrong, and will be 9-0'ed.
I think people get mad at lawyers because if "basic grammar and English reading comprehension" will get you the right answer, then what am I paying my lawyer $600 / hr for?
Chances are you're more paying your lawyer to fight about the facts, not what the law is. A very small percentage of cases involve real disputes of pure law, and those are the cases SCOTUS reviews.
In pure law issues, it's simplistic to say that just reading the rule will tell you the right answer, but the vast majority of legal problems are easy, and just reading the rule carefully will almost always tell you the right answer in easy cases. Laypersons are less good at reading the rules because they don't know where to find the rule, don't understand the meta-rules courts use to read rules, don't understand the background structure of the law the rules are written in light of, and lack knowledge and experience of the procedures used to interpret and enforce the rules. But with those qualifications, it's a lot of just reading the rules.
Or perhaps even more pointedly, if this is just a matter of applying reading comprehension and grammatical skills, why aren't opinions 5 pages long rather than 100 pages?
I’ve always thought that the discourse about the court reveals commentators to be *far* more biased than Supreme Court justices.
These commentators decry any inconvenient ruling as illegitimate. Do they ever stop to think “isn’t it weird that the correct judicial decision always lines up perfectly with liberal policy preferences?” Like, you’ll never see a pundit say that even though a court ruling will have bad policy outcomes, it was nevertheless the right decision from a constitutional law perspective. On the other hand, justices rule against their own policy preferences all the time.
You have to get at this question a few different ways to get a useful answer, I think.
If the question is, does the law (in general) ever disagree with your policy preferences, I think most everyone is on the same page that the answer is yes. Lots of people think it's bad for the Constitution to grant Wyoming the same number of senators as California but there's no dispute that the Constitution in fact does that. You might be a libertarian and think businesses ought to be able to hire and fire however they like but everyone agrees that the Civil Rights Act of 1964 prohibits job discrimination based on certain categories for covered employers. (I suppose there might be an argument that that's unconstitutional, but we'll leave that to one side.)
But these are not the kinds of questions that get to the Supreme Court. The Supreme Court hears cases where the law is unclear. And where the law is unclear, policy preferences tend to matter a whole lot more. Some of this is bias, but some of it is also that the formal legal materials that make up law are somewhat indeterminate--sometimes the court system needs an answer but text and precedent just don't provide one.
That doesn't mean that Supreme Court justices never vote against their policy preferences--they do, though I don't know about "all the time"! Sometimes that's because there is a good legal answer quite apart from policy and a nine-member bench of highly capable judges is able to reach it even if other appellate courts have messed it up. Sometimes that's because there's a principle they care about that goes beyond the policy consequences in a particular case: Justice Kagan for example is a particular stickler about stare decisis (though the reason to care about the principle might itself be for its policy consequences, e.g. you might imagine that stare decisis is appealing to Kagan because it restrains the conservative majority). I don't disagree that a fair number of commentators are less sophisticated in how they think about the Supreme Court's decisions than the justices--the strength of your legal argument does matter at the Supreme Court and matters much less in punditry. But it ignores reality to discount the importance of policy considerations and ideology to how the justices vote.
I probably should’ve been clearer. I completely agree with you! This court has obvious biases and the conservative majority has applied some of their principles inconsistently.
My point was more that the commentary about the court is so ludicrously biased that it’s essentially useless from the perspective of someone trying to determine whether the court is doing its job correctly.
Exactly. Live by the sword, die by the sword. During the three decades after the 1937 "switch in time that saved the nine" the Court slashed and burned its way through huge amounts of established precedent and dramatically remade American law.
You can't celebrate that and also claim to put stare decisis on pedestal and criticize today's Court on that basis for overruling prior precedent. The lack of self-awareness on this point of so many of those criticizing today's Court is hard to swallow.
TBF, I think a big part of what happens is that people study an area intensely and obviously get worked up about it when something changes they've published law review articles about etc etc. But I don't think the public realizes that's part of it especially since the incentivizes are for all the people who disagree but aren't outraged not to pick a fight over it.
Folks who know the Court better than I do: is stare decisis really a thing? That is, are there cases where the justices vote against their ideological and/or judicial preferences because they think it's unwise to overturn precedent?
Stare decisis for me but not for thee is great when you're the me; but it's more compelling when you grant it to thee as well.
I mean the Warren Court was partisan as hell, but then, it was the only way to pick apart Jim Crow, because states rights were so ingrained on the constitution that it would otherwise be impossible.
All supreme courts are intensely partisan, it's just a pretense that they're some wizened, supreme lawyers who are perfect at interpreting laws impartially. If the court's going to be partisan, better it be partisan doing good things than bad ones.
There are IMO very legit criticisms of what the court is doing these days but I think they aren't as neatly partisan as a lot of the critics make them out to be. For example I think the real problem with Dobbs is the murder of stare decisis (note I am pro choice as a matter of public policy). That's why a law professor will clearly bemoan that. Similar deal with Chevron deference, though I think the reaction to that has been a bit more overblown.
Of course you'll see other stuff like the gun cases, Heller, Bruen, etc. that left of center people get upset about, and while I doubt those cases go the way they did with different compositions on the court the reality is that state and local gun laws had never been challenged under modern, post 1960s jurisprudence and the precedents that did exist were not particularly on point.
Why are so many high-profile SCOTUS decisions breaking on partisan lines and going against stare decisis? At a lower level, you might count the activist judge trying to unilaterally enact a nationwide ban of mifiprestone as an example of how bias is corrected because that ruling was overturned, but how do you think the rest of his cases are being decided?
That's the thing. Most of them aren't. It's that the subset that do tend to touch on the most intense areas of controversy and disagreement, not just in the court but in our politics generally.
The bigger issue with Matt's take about the judiciary being run purely on partisanship is that it allows only war over the position. Every faction should fight tooth and nail to get their preferred candidate in office because there is no real adherence to stare decisis or following the text/spirit of the law. It's all judicial hand waving to confuse people so they won't notice that every judge is simply going to rule the way they want.
Unfortunately it’s often the truth and should be dealt with by limiting the power of the judiciary. and move in the direction of more parlamentarism/representative democracy (and in some cases deregulation). Judges should not handle issues that aren’t directly related to core rights that protect the democratic process itself, e.g. abortion (not related to the democratic process but should be decided through democratic means).
I don't disagree with the end goal, but the means is for Congress to be more active. Missing that, all you are doing is handing more power to the presidency.
Matt gets it. The constitutional rulings are just a bunch of prestidigitation. Yes, trained lawyers can play that game at a more sophisticated level than lay people, just like English PhDs can engage in more elaborate literary criticism than I can. That doesn’t mean the game is worth playing- because it doesn’t tell us whether the policies embodied in the constitution are good or bad.
However, the biggest driver of judicial power is that Congress is too gridlocked to do anything. It hasn’t even managed a forceful response to January 6. Nature abhors a vacuum, and courts are happy to step in.
I suspect the Court knows perfectly well that Congress is unlikely to pass a law that overturns their decision, so just saying that Congress should pass a law is like telling a poor person that they should just go make more money.
That's not the court's fault or problem. Our constitution has a separation of powers. What you seem go be asking for would grant the judicial branch way more policy making power, not less.
This court has undermined voting rights, gerrymandering reform, and has generally bent over backwards to enable Republicans to consistently block the exact kind of policy you are talking about. So yes, it is very much their fault and their problem.
I think Matt is right, *when there is wiggle room*. But the fact is that, on the vast majority of questions people might disagree on, there is not much wiggle room in applying the law to those circumstances.
You make good points that much of the Court's controversial actions involve statutory interpretation rather than constitutional law.
But it is important to remember the Courts read the newspaper too. The courts are very aware that with a 60 vote Senate, staggered terms and generally divided government it is very hard for Congress to continually update previously approved legislation.
Perfectly drafted legislation with unambigious meanings is quite rare. Judges have a lot of leeway to say the law was poorly drafted and substitute their preferred policy as the proper reading of the law. So activists in the courts, who very much exist on both sides, often exercise a judicial veto under the pretext of statutory interpretation.
Hey Congress go back and re-write the 2020 law. Oh the unified government that wrote it is gone, too bad sucker.
To tie the Supreme Court and the Peter Thiel questions together, I'll observe again that almost everyone in America believe in some form of anti-democracy. That's the whole point of having a Constitution and a Bill of Rights, an observation that some rights are so important that they should override majoritarian desires. The question at hand is that people disagree on which which rights should be seen as those that supersede democracy.
The Bill of Rights and the Constitution aren't examples of anti-democracy or even a negation of majoritarian desires. They both are the product of majority wishes and can and have been changed by majoritarian processes. It's an oversimplification, near to the point of inaccuracy to see democracy as only meaning the expression of the desire of a simple majority. We voluntarily, democratically slow but never eliminate our ability to expand or contract individual liberties.
I firmly disagree that no one—even in the hyperbolic sense you mean—uses “less democratic” to mean less subject to popular vote. I particularly disagree that that meaning is esoteric *at this website where we all pay to read and talk about politics.* In fact the idea that the Senate is less democratic than the House is commonplace among people who talk politics, as just one example.
“Voting is an important part of democracy but more voting doesn't always mean more democratic.”
Can you say more? Because without contrary examples in mind (which is probably my lack of imagination), I would say that in fact more voting, and more simple majority voting, probably *does* almost always mean more democracy. What I would like to say is that more voting, and more democracy, doesn’t always lead to good results; that’s why we have the concept of the tyranny of the majority.
Maybe? Less democratic, but maybe not less democracy? It strikes me that democracy is at a low if there aren't strong protections for minority views and people.
I would say less democratic but more liberal. Upholding liberal values like freedom for the minority requires going against democratic decisionmaking to some extent.
Like, could we agree that if there was a law that could theoretically be overturned, but it took literal total unanimity to overturn it (100% of all voters had to agree), that law is not meaningfully under democratic review? How about one that took 99.99%? 99.9%? 99%? 98%?
Isn't it obvious when you look at it that way that requiring large supermajorities is less democratic proportional to the size of the supermajority required?
But the larger point I think is that people creatively reinterpret the term "democracy" to mean "whatever I like."
I think it depends on your view on status quo bias. A society that can only change laws when they get supermajorities does a better job reflecting the "will of the people" than one that can change laws at 50%+1
I suppose you could make the case that that's true with an intermediate layer of representatives -- like they trend more radical than the underlying people? But if you are hypothesizing a world in which 50% +1 of the people want a change to the law, then that's only true to the extent that "the will of the people" means something other than democracy.
They're a product of an aristocracy that believed that people should be given as little access to the halls of power as possible- that people in more populous states were worth less than people in less populous ones, and that while judges should not have to have supermajorities to decide, the people should, because judges are enlightened people, while the normal people must be kept away from power at all costs.
My view is that only a narrow set of rights that serve to directly protect the democratic process itself (e.g. voting rights, free political speech, free political association) should be protected against democratically decided infringement, and everything else is up for grabs to be decided by voters and their representatives.
You're doing the "Nothing is better than God. A ham sandwich is better than nothing. Therefore a ham sandwich is better than God." thing. In a sense one could argue that enshrining rights in a way that protects them from immediate voter sentiment is anti small d democratic. Still, that is nothing like the "completely undermine free and fair elections in the US" that Trump and Project 2025 are going for.
That being said I also disagree with you that the Bill of Rights is anti-democracy. Democracy is a broad term and many implementations of democracy purposely make sure every law isn't the direct result of a vote or that every law is immediately repealable by a vote. And with good reason. Public opinion is often unstable and/or misinformed. It is perfectly reasonable to set up elections so that the people have a huge say in their government without giving them ultimate authority on everything. Setting up a stable democratic government is pro-democracy, not anti.
"Wait, there's a place where I can hire chear maids, cooks, drivers, and nannies? Sign me up!"
*monkey's paw curls*
Anyway, this is a good observation by Matt, and also demonstrates that, while people bemoan about Baumol's cost disease, the conditions in which it arises are overall good: our society got more productive and richer! It's just an unfortunate side effect--at least in the sectors where it grows naturally.
Yeah, when I was visiting some of my wife’s family in the Philippines (shout out Ilo Ilo, one of my new favorite places) everyone had “yaya’s” basically full time servants/drivers/cooks. However, the standard of living is low. The doctors in her family make a good living in the Philippines but they can’t afford to fly to the US and visit because it’s “too expensive”. How many doctors in the US couldn’t afford to travel to Europe or Asia if they wanted?
All the kids want to go to college in the US but they told me that was likely a pipe dream so they would settle for a decent college in Manila.
I know lots of Filipino nurses who plan to retire in the Philippines but absolutely none who want to work there. The economics don't make sense at any other stage of life.
The basic play for all of my wife’s retired Filipino family members is you spend 6-8 months in the Philippines and then live with family here for the other 4-6 months. While in the US you do all your medical stuff, enjoy the air con, and spend time with US family.
So you have a cook but most of time they just make a few versions of the same soup. You have a driver but they are driving an older SUV, not a brand new BMW, you have a house maid, so your home is relatively clean, but electricity is extremely expensive so you are sitting around, sweating with the air con off in 98 degree, 90 percent humidity weather.
I’ve seen these lives. I’ll take eating different foods from all over the world several times a week, driving a new car myself, and cleaning my house but turning on the air con whenever I want.
Happiness surveys suggest otherwise, as does average life span statistics. America is great if you want to spend 60 hours per week working, 10 hours commuting to work and the spend the rest of the time inside your air conditioned McMansion without meeting people other than your closest family.
It *sounds* like it, because you’re imagining that someone with a full time set of servants also has the financial ability to do a lot of things equivalent to traveling to Europe. It’s just hard to imagine full time servants being so cheap that you can afford them when you can’t even afford things like an iPhone.
“The key to thriving in the modern world is to push against that instinct to be lazy, which is challenging but not some gigantic intellectual puzzle.” Careful, Matt. For a second there, it sounded like you were encouraging us to view an issue through the lens of personal responsibility and individual agency rather than systemic forces and society’s limitations. And, of course, we must choose one way to view the world! What are we, moderates?
To be contrarian, I have a couple systemic answers for you
- Rich suburbs often have rec centers with subsidized gyms. This usually comes along with having good schools™. Maybe every community deserves a rec center. Maybe we need to implement gym choice with a voucher system.
I feel like McGhee's story is way too simple. In Chicago, the huge urban public pools that were closed during this era were built more for public bathing / sanitation at the turn of the century and after the first wave of suburban outflow, there just wasn't the demand + they were falling apart. So while the timing works conveniently for McGhee -- I think the root cause of the closures were more just economic.
One other point I've wondered about is if any public good could continue to be offered if the number of people eligible to use it suddenly doubled. If a judge decreed one day that NYC Public Libraries had to lend books to anyone that stepped through the doors instead of just NYC residents, could they decide that the margins don't pencil out anymore and it makes more sense to close up shop? And could that be construed as "snooty New Yorkers would rather close their libraries than have to rub shoulders with mouth-breathing tourists"?
I of course acknowledge that racism, in the form of taxing black citizens and not letting them use the facilities, played a role in being able to provide the public good (pools) in the first place.
I think of the pool thing whenever someone's like "surely people won't compromise their standard of living for the sake of getting their preferred vibes!"
In the hypothetical world where judicial review didn’t exist, we wouldn’t have a Roe to overturn, we wouldn’t have a Loving, a Griswold, a Brown, an Obergfell. And we most certainly wouldn’t have a robust First Alendment that makes the United States unique. (Not even Canadians or Estonians have the same level of free speech.)
Maybe that would be a better world but I wouldn’t assume it.
I think multiple Matts (Yglesias and Breunig) have made a pretty compelling point that it’s not clear judicial review is a better avenue for achieving those goals than through electoral politics. Gay marriage was becoming a majority position and republicans were facing serious trouble over their increasing unpopular opposition until the Supreme Court took it off the table. Most European countries address abortion legislatively and have equal if not greater protection than the United States.
The best pro case is probably Free Speech but I think a lot of that can be attributed to the unique culture of America similar to guns. America is not an outlier on guns due to a robust jurisprudence respecting the right to bear arms but because gun rights are a genuinely popular position.
I agree with you that the codification of these things into law is likely to generate more popular sentiment for them, probably through status quo bias. I think they initially get codified into Supreme Court jurisprudence because they were on the path of political consensus, and I think you could get similar status quo gains by encoding those goals legislatively which would also have the upside of more democratic legitimacy and be a bit more durable plus it wouldn't have all the other downsides of extensive judicial review.
I think I'm right that America's outlier status on guns is not the result of the Supreme Court. The Supreme Court did not codify the individual right to bear arms until 2008, at which point America already had a strong gun rights culture. Your comment demonstrates this in that in your short history of gun rights regulation, you never mentioned the Supreme Court.
I recognize that the general opinion on gun regulation has changed over time.
Matt gets very close to making this point, but it seems to me that the collapse of the USSR was both a collapse of communism and a collapse of imperialism. The Bolsheviks took over an empire and proceeded to continue to run it, but with their communist ideals. But the second half of the 20th century saw both of these systems as unworkable, with colonies from the British, the French, and others becoming independent, and other communist states, like China, enact market oriented reforms. It was pretty spectacular to see this all collapse for the USSR at once in 1991, but there could have been moments in which either one of the two could have fallen apart.
A partial collapse of imperialism, perhaps. I dimly get the impression that Americans don't really have a working concept of the idea of a central city like Moscow or London. A political-economic-cultural capital that dictates all, sucks in resources and wealth and ambition from around it and, especially in Moscow's case, is culturally and even ethnically distinct from its fiefdoms. New York has hints of some of this, but you can imagine the United States without New York.
This is exactly right. The USSR had 15 republics because that’s the way the Communists won the Russian Civil War. Also, Estonian communists saved Lenin’s bacon and he was actually anti-imperialist and wanted every country to join the USSR. Stalin is a different matter. Matt also is not challenging Russian nationalism but Russian imperialism. Russian nationalists don’t want to reabsorb the ex-Soviet states because then there would be too many Muslims and Buddhists. Like most right-wing nationalists, they believe in national essences and don’t want those essences polluted.
“ Narrowly, no. HUD Secretary does not seem like a fun job to me, and I don’t want the pay cut.”
Pay cut??
The Constitution grants the President nearly unchecked pardon powers. And the Supremes just invented a new doctrine of presidential immunity from prosecution (offer good only for Republican presidents).
Combine these with the other right-wing fiction of the “unitary executive,” and this means immunity from prosecution for all members of a Republican administration.
Whoever the next HUD secretary is, they are going to be rolling in bribes, and taking a cut of every construction project across the country. They’re going to become very, very wealthy.
Are we sure the immunity isn't derivative? One of my first thoughts when I heard about the decision was that it could be derivative. How can a thing be illegal if the order to do it is legal. As to the pardon power, a President can simply issue a pardon at the end of their term for any acts committed while they were in office.
I think after 2024 we definitely need to think about age limits on the presidency. Partisan politics in polarized America values brand names and people who make partisan voters feel good rather than folks who can run the country. And that means elderly candidates who could endanger the world. It's bad.
I suspect after this election you’ll see questions of age become a lot more salient to voters. If you repeated Diane Feinstein’s last election but in 2026 I think she would lose.
I doubt it. In the case of Feinstein she was likely “fine” in 2018, if maybe having the odd senior moment. But 5 years is a long time as these things go and you can witness a tremendous amount of decline over 5 years. Voters therefore would have to look not at the candidate currently in front of them but how they will be in X years. And they just aren’t going to do that.
I had voted for her expecting that she'd not finish out her term. Seniority is important in the Senate and it's not like she would be replaced by a Republican. And there wasn't much public evidence that she was in decline.
The big lesson I learned is how stubbornness could persist even with ZERO situational stakes. Biden's defiance was just pattern recognition after watching RBG and Feinstein.
I feel like the 2nd Reagan administration kind of deluded us regarding how important a very old President having really is. His second term I think is seen as a success given it coincided with the end of the Cold War and general economic prosperity (the 1987 stock market crash seemed dramatic at the time, but in retrospect didn't have much far-reaching impact. Recession doesn't hit until 4 years later; after Reagan left office). And yet it seems pretty likely that Reagan was starting to suffer from Alzheimer's as early as the 1984 election. https://www.psychologytoday.com/us/blog/side-effects/201101/when-did-reagans-first-signs-alzheimers-appear
I'm not sure how likely that really is. Reagan died in 2004.
Alzheimer's Assn says: "On average, a person with Alzheimer's lives four to eight years after diagnosis, but can live as long as 20 years, depending on other factors."
It's pretty unlikely although not completely impossible that Reagan happened to be at the very high end of that range. To be fair, usually you get Alzheimer's a bit before diagnosis. I still think it's unlikely.
I wrote an amendment a few months back as an exercise. Feel free to eviscerate my non lawyerly prose and poor grasp of Con Law:
1) No person over the age of 76 shall be elected to nor succceed to the offices of President or Vice President.
2) No person over the age of 79 shall be elected to the Senate. No person over the age of 83 shall be elected to the House of Representatives.
3) This article shall take effect two years after its ratification.
4) Persons serving as President, Vice President, or as members of Congress when this article takes effect may complete the current term without regard to age.
5) Congress shall have the power to enforce this article and regulate the presidential succession by appropriate legislation.
6) This article must be ratified before January 1, 2035.
The irony is outside of Trump (again), it's extremely unlikely to get a Trump or Biden-aged Presidenial candidate anytime soon for the next decade or so. Both the Republican and Democratic benches, whatever you think of their personal views on stuff, full of normal-aged (40 to 60-something) politicians who are likely to run for President.
The current gentocracy is mostly a result of Trump winning in '16, and a bunch of older politicians deciding to hang on or get involved in politics again as a result.
What's the cutoff? And does it apply only to a limit when taking office or would someone have to resign partway through? LBJ died at 64, seems like Reagan was fine enough at 77 when he left office but had clear signs of Alzheimer's by age 81, Biden is starting to fall apart at the same age, Bernie Sanders (seems fine) is 82. Would the rule be that you can't take office if you're 75 or older?
"For judges, there should be either term limits or age limits. For elected officials, I have mixed feelings."
For judges, I favour a mixture of term and age limits. If you have a pure age limit, then there is going to be an even stronger incentive to the appointers to choose the youngest judges possible, which means judges getting promoted faster than their experience. If you have a pure term limit, then you don't remove the problem of a senile judge staying in place until they reach the limit.
I'd favour an age limit of 80 (not because no-one can serve after 80, but because it's impossible to predict who can and who can't at the time you are appointing) and then a term limit of 20 years on the Supreme Court and longer on lower courts (perhaps 25-45, so judges are typically appointed at 35-55). Getting SCOTUS judges appointed in their 50s and increasing the turnover would both be good things for the US. The sense at present that the Conservative majority is going to last for many decades is not a good one; it means that instead of just trying to win elections to replace judges, the left is increasingly looking for more radical options (expanding the court, impeaching judges, etc).
For elected officials, I'd be OK with a law saying that no-one can be elected to a term that will end after their 80th birthday. It would remove the worst cases (Feinstein, Helms, etc) without having much other impact.
Term limits are almost always bad in legislatures (I mean, if someone wants to have 30 or 40 year limits, then I'm fine with kicking AOC out in her sixties - the combination of a minimum and a maximum age would mean a 55 year limit anyway) because new members turn to people with experience to learn how things work, and if that isn't experienced members, it ends up being lobbyists, which is worse. For chief executives, I'm inclined to think that some limit is probably a good thing, and I'd not be much inclined to change the existing term limit for the President.
I still remain firm with one single 18 year term limit on SCOTUS, with each seat rotating on a two year basis. Make control of the Court directly up to who wins the presidency, and not up to the whim of each justice's desire and/or the Grim Reaper.
How would you avoid the issue of the presidency and Senate being controlled by different parties? Would the president directly appoint justices with no Senate review?
Having no advise & consent check on the President's power to choose SCOTUS members seems bad unless there are a bunch of other court reforms you're going to implement as well.
My ideal system is that every 2 years, the most senior justice on the Court is replaced. The president, House, and Senate must all agree on a replacement (via majority vote in the Congressional chambers), and if there is agreement then that's the new justice. If there is no agreement and/or one of the chambers fails to hold a vote, the 9 sitting members of the Court have 2 weeks to *unanimously* agree on and rank a list of 5 candidates. The president then has 2 weeks to choose from that list, and if they do not do so, the top-ranked candidate becomes the new justice. The same process occurs if there's an unexpected vacancy on the Court.
This ensures that if a party has a trifecta, implying broad political legitimacy, then there can be a partisan/ideological appointment; otherwise, the requirement for unanimity among the sitting Justices maintains the status quo.
But the other problem is having seats left vacant for a long time until the President and Senate are held by the same parties. Perhaps that's a feature instead of a bug for some.
You already said you were talking about an amendment. Provide that Senate has to hold a vote within 60 days or the nomination automatically takes effect; if the Senate rejects three consecutive nominees, the President can resubmit any of the rejected nominees to the House with a vote to be held within 60 days or the nomination automatically takes effect; if the House rejects all three nominees, the President can resubmit any of the rejected nominees to the governors of the states, with each governor to send their vote within 60 days or their vote is automatically deemed to be an "Approved"; if a majority of governors does not approve any of the nominees, then the seat remains vacant.
Big problem here is that predictable court appointments will essentially turn the SCOTUS picks into part of the presidential ticket and that's a very bad dynamic that will make the court so much worse. Had Trump picked his court appointees during his campaign -- shudder.
I don't necessarily dislike the idea of regular changes but you need a mechanism to prevent that electoral incentive creep. Right now it's largely the fact that it's kinda gross to speculate about someone dying or getting ill plus it being unpredictable.
Now maybe if you made the appointment to the court more indirect you could avoid that. Say maybe the justice gets picked by a panel with the president getting to appoint 8/20 seats the house getting (via proportional representation) 10/20 and the other two picked by all current and retired justices. But that gets complicated and who knows how it works out.
Ultimately, I think our current system isn't half bad. In the grand scheme of things the court very rarely frustrates the strong wishes of a large majority (for good or ill eg wrt japanese internment). It mostly makes calls on the margin which is why it's so frustrating for the left at the moment -- the country is very divided and very closely balanced so it can substantially frustrate a 52% majority.
But that seems well within the kind of bounds that other aspects of the political process like the electoral college or FPTP change who is on top and in the long run the court seems no more likely to do this in a bad way than a good way. Maybe it's generally a small c conservative institution but given the history of the 20th century being more worried about the harms of quick changes than harms of going slow doesn't seem unreasonable.
And I do like the two year rotation; each Congressional election picks one Justice.
But, actually, I'd prefer a court with an even number who can split equally and be unable to make their minds up and have to leave a circuit-split in place. I think that's better than marginal 5-4 decisions being able to create massive changes in governance. You don't risk swinging back and forth to anything like the same degree.
An actual structured process for this would probably improve matters, yeah. Knowing that each presidential term will involve the replacement of two judges kinda makes the stakes clear. Whoever wrote this dumb thing seemed to think it would be cool to just let it be free-wheeling and thought this would never be a point of contention.
The founders were brilliant humans, but they were still fallible humans that couldn't foresee everything, and also denied to foresee that they would succumb to the same human traits they tried to avoid.
Three years works for me. Every third year, one tenth of the circuit court judges (assigned randomly to ten different classes) are elevated to serve as the Supreme Court.
Incidentally, if anyone wants a boring technical constitutional amendment that no-one would want to spare time for: a bootstrapping process for the government. How do you recreate Constitutional Government if all the constitutional officers cease to exist?
The answer is: the Governors of the States appoint a bunch of Senators, they elect a President Pro Tempore who immediately becomes POTUS. You can't have a VP until the House is back, and that can't come back until there have been special elections, but the new POTUS can nominate a Supreme Court and a Cabinet and the Senate can ratify. You now have three branches again, but you can't pass any legislation until you have a House again, and that requires special elections. Once you do have a House, they elect a Speaker, ratify a VP and get on with emergency legislation.
I can't say I'm a huge fan of that. It might be a good idea to have a think about that in advance of the crisis.
The fundamental issue with all discussions of if Trump is actually an existential threat to democracy is there is no way to communicate the affirmative to the masses without a noteworthy portion of the population reading it as calling him a turbulent priest. If you are a mentally unbalanced individual who believes that Trump is going to end democracy and that you are a member of a group that will be killed in a Trump presidency then anything becomes acceptable to stop him especially in a society that glamorises freedom fighters. We as rational actors might be able to go "Violence is counterproductive" or "While Trump is a risk the risk is still relatively small but any risk to democracy of such magnitude should be avoided" but mass media campaigns will not target these people. The other side of this then becomes that Trump supporters will see the campaigns as calling him a Turbulent Priest and react accordingly, we probably got very lucky that a) the shot missed and b) it looks to be nihilistic suicide by cop rather than a political assassination.
I really don't know what the right answer is going by the very careful and measured response in this mailbag I think you aren't sure either. Trump undermines American democracy, has policies that undermine liberal democracy globally but on balance would probably still peacefully transfer power in 4 years time (assuming he doesn't die). Finding the right tone is balanced.
Sometimes I do wonder though if the "threat to democracy" and "genocidal project 2025" lines are counterproductive for moderate swing voters, does the average American who we need to either vote Biden or stay home in November actually see the lines as legitimate or as desperate histrionics. Some of the more extreme lines (e.g. what you see on the front page of Reddit) feel like histrionics and even as someone who wants Biden to win finds them offputting.
I think the sentiment behind this sort of aversion to political violence is noble, but I don't really understand the distinction you're trying to draw. Doesn't being an existential threat to democracy necessarily make someone a turbulent priest? I mean, wasn't the 20 July plot to assassinate Hitler just moral and correct on the merits?
Yeah, if you live in a democracy and accept that the process that created it was good, you’ve already implicitly accepted that at least the implied threat of political violence is morally acceptable under at least some circumstances. We actually all agree about this; the question is where we draw the line.
I'm not completely sure myself to be honest. The typical response to the problem of "if this is as big a problem as you say then you should support political violence" in this sort of circle is that even if you take all of the claims 100% seriously political violence is counterproductive and they would claim that things like the various Hitler plots are exceptions that prove the rule as they were effectively carefully prepared coup attempts rather than simply hoping that killing him would make the bad situation go away.
On the larger scale though I think Trump occupies that uneasy space where he's probably not (<10%) going to cause the end of democracy and if he did try you would probably get A Very British Coup style palace coup ousting him but in the long term will erode democratic norms and institutions and lead to a future figure potentially being able to end democracy. In this area where the line should be drawn for where political violence becomes acceptable (obviously we as a society support political violence after some point) is very difficult to agree on. If a mentally unwell democrat supporter was to kill Trump tomorrow because they thought Trump was going to end democracy and genocide $group I think we'd all agree that the fallout would be worse for democracy in the US than if he wasn't killed due to the inevitable tit for tat, radicalisation of Trump supporters and potential normalisation of political violence.
But thats all based on the reality of what a Trump victory would look like, to go back to my opening sentence of the first comment you are basically right. If you think Trump is a legitimate existential threat to democracy and he is likely to win the election then calling him a turbulent priest would be morally justified. Although the kind of interests capable of amplifying such a message would be better served doing A Very British Coup and just conspiring with other powerful interests to have his position become untenable which throws a spanner in the works to the moral justification, ousting Trump peacefully is still non-democratic but better by every metric than hoping someone kills him.
Sorry if this is kind of a jumble of thoughts. As I have elaborated I don't personally think Trump is the level of threat where violence is justified, he dangerously erodes democratic norms but that can be reversed after the fact, the aftermath of a successful Trump assassination tomorrow probably cannot.
Thanks for the reply, this is a very sensitive issue, to say the least, and I don't have a fully worked out theory about it myself. But giving it a little more thought, I think I may be doing the mirror image of what pro-choice people do when they say that if pro-life people really believed that abortion is murder, they'd be fine with bombing Planned Parenthood offices. The response there is that if you're using violence to end something that is legal in your society, you're really talking about starting a civil war. And as bad as abortion is, civil war would very likely be worse. I think one could make a symmetrical argument that in a cosmic-justice sense it would be good for Trump to be killed, but no one could actually carry that out without doing more harm than good. Which isn't really much different from what you said. Anyway, the country would be a lot better off if we all had stronger norms against political violence and clearly and consistently condemned it every time.
Regarding the remarks about the courts, I don't think Matt could be more wrong -- and it's this kind of rhetoric that paves the way for Trump to ignore the court when he decides he doesn't like what it says.
Basically the only cases recently the Dems have lost which couldn't be overturned by statute are cases like Roe or Trump immunity and without a court there wouldn't be a limitation on state power preventing them from making abortion illegal. And since criminal cases must be heard by a court it's not clear how you prosecute a president federally without some court having final say.
Virtually all of the other big SCOTUS losses recently for the dems could be pretty easily overturned by legislation if not to the benefit of democrats -- Trump republicans aren't afraid to use the administrative state so we may end up being happy if it has less power. Loper Bright merely refused to defer to agencies **absent congressional direction** so congress could pass a law tomorrow saying to defer to them. Even the VRA preclerence being struck down was merely a requirement that congress actually engage in new fact finding about where it's necessary.
WTF, like how can democrats really think that it would be better if the last and final word was either the president or state courts given recent events. But for the supreme court Texas would be free to tell online content providers they had to show more conservative messages, not to mention overide federal immigration authority and arrest any woman who went out of state for an abortion.
Look, someone needs to make the call about the default and in our system the unfortunate truth is that it's basically the court that prevents all power from either devolving to states or accruing to the president.
"WTF, like how can democrats really think that it would be better if the last and final word was either the president or state courts given recent events."
Yeah, I just want to beat my head against the wall at various, "Get rid of SCOTUS" or "Get rid of all judicial review" proposals -- it's like, what do you fools imagine will happen in the absence of the Supreme Court? These decisions will all still need to be made somewhere! And pointing at foreign countries to say they don't have judicial review is no good because the vast majority of other democratic countries: (1) use some form of parliamentary system (so there generally speaking will be no split between the executive and the majority of the legislature) and/or (2) don't have a system of federalism where their administrative subdivisions have their own legal systems.
No. If you think for a second that Trump wouldn't defy the supreme court but for some policy wonks talking about how judicial review is bad, you are completely wrong. Trump has already called for the suspension of the constitution. He's already planning to purge people who are more loyal to our laws than to him. The only capacity in which SCOTUS mattered in project 2025 planning is that they are making sure to work within what SCOTUS already approves of to expand executive power an purge non-loyalists. Opposition to judicial review doesn't give him rhetorical cover and it doesn't make any part of his anti democracy machinations any easier.
If that talk doesn't matter why does it matter when election deniers spread their message? Either talk does or doesn't make a difference on the margin in terms of respect for the traditional institutions of government authority in this country.
I think that talk suggesting that it's ok to just ignore the results of elections is harmful on the margins and for the exact same reason accusing the court of being illegitimate is as well. And yes, at the margin people make calls based on their perception the public will support them and the more the public hears the other side calling an institution illegitimate the less likely they will be to feel they need to obey it.
I learned recently the depressing fact that the Soviet Union really didn't collapse because it reached some kind of tipping point of system failure, but rather, it fell because a faction (led by Gorbachev) came into power that was not willing to continue propping up the system with military force, because that was immoral. Similarly they were persuaded that the communist system was no longer working and they attempted to convert to a social democracy-type system. I suppose I find it depressing because I had assumed the fall of communism was "inevitable" in some world-historic sense, but really it was a stroke of fortune that "the right guy" was in charge at the right time.
As someone who is 1%er in a developing country (well, probably more like 0.1%) and is moving to a developed country in 84 days I can't help but chime in on David_in_Chicago's question and Matt's response.
The tl;dr is that 99% of people would (and should) choose the median lifestyle in a developed country over being 1% in a developing country. Because money can't fix everything and even for the things it does it often takes being far richer than "just" 1% to begin doing so.
First a pedantic note: developing countries are massively heterogeneous. Remember that in 1995 South Korea was still a "developing country". Taiwan still is. But South Korea circa 1995 and Taiwan today are very different than, say, Vietnam. And Vietnam is different from Rwanda in ways both economic, social, and cultural. And the same for developed countries though to a lesser extent. Is being a 1%er in Taiwan better than being median in Italy? Probably, maybe? Taiwan is really nice! Is being 1%er in North Korea better than being media in Switzerland? Come on, no.
Matt alludes to the things money can't buy but only scratches the surface. I mean, don't forget that you'll have a low-power passport and can't get a visa to go visit Japan even though you're rich. (Not a theoretical example, I know several USD-millionaires here who have had Japanese visas rejected.)
Depending which developing country that could include crime, pollution, bribery, traffic far worse than anything in America.
In general state capacity is low. That means police and fire departments take longer to show up, even for serious crimes. Building codes aren't as developed, so your house won't have smoke detectors or grounded electrical sockets. The legal system is less developed, so land lords, neighbors, and employers are more likely to rip you off. No such thing as noise complaints when your neighbor's dog barks 24/7: the only solution is to kill it.
Luckily you won't get in any real trouble for killing their dog because there are effectively no animal cruelty laws yet.
More likely for you or your children to get killed by a truck driver on meth or a drunk driver because the laws and norms around those things are less developed.
It also means things like repaving streets happens less often. That there is no money for parks in the city. No money for national parks. No money to run anti-littering campaigns. No money to enforce "don't burn trash to avoid having to pay for rubbish collection" rules. It means the equivalent of the FDA is much less capable so the news sometimes has stories about how a coffee factory was found to be putting ground up batteries in the product to cut costs.
I could go on at length and I doubt many from developed countries would even be able to imagine many of the things. Our neighbor didn't have their trash collected for an extended period because the trash collectors demanded an extra bribe and the landlord of the house refused to pay it.
If you live in a developed country 10,000 paper-cuts like this simply don't exist.
There are also a whole lot of things that money can fix but you need to be richer than 1% to fix it. In my country, 1% means you have a networth of $800,000 USD. Sending your kid to a good private school here costs $60,000 a year. Even a 1%er can't afford it.
I know very rich people who only eat fruit, fish, meat, noodles, coffee, etc imported from Japan because of their low trust in local food safety. But doing that costs more than 1%er amounts of money.
And not sending your kid to a private school brings a host of issues. One of which is that it is simply harder to get into the best foreign university because many of them don't accept local schools as an entry requirement. There's a reason why even very rich families here end up often sending their kids to very mediocre schools in America and Australia.
And you will be sending them. Because even if you are a 1er here you know that all the universities suck. And you know that unless your plan is for them to take over a family business, they need to build a career and a life in a developed country. And you also know that after years of schooling in a developed country, they're going to have limited interest in living in a developing country.
At the end of the day this is where the question really ends: with our kids. Even rich people in developing countries rarely want their kids to grow up in them.
Just as one example from thousands: if you have daughters do you want them growing up in a country where norms around domestic violence are very different (worse) than in developed countries?
It is the reason we are moving shortly. If we didn't have kids, the calculation would be different. Yes, having maids is great. But I want more for my kids and having maids isn't the most important thing as a parent. The opportunities elsewhere are simply too great.
10 / 10 just for the casual diversion into killing your neighbor's dog mid-comment.
Yeap. That was a legit LOL for me.
Kristi Noem is defecting to Vietnam
Maybe she defected FROM Vietnam. Deep implants aren't unknown.
“Deep implants aren't unknown.”
It’s out of bounds to make comments about her cosmetic surgery.
Brilliant. Thanks for bringing the tradeoffs to life with such detail. My sense was ... I'd lean towards top 1% just because status competition is brutal and I'm a sucker for it but when you put it like this ... the correct answer is clear.
I don't think that any realistic amount of money gets you away from status competition. In general, you'll just have new peers to compete with.
Yeah, that's probably right. I'll still never forget an early board meeting at our start-up where two of our seed investors were debating / dick-measuring who's plane to take the Sun Valley conference that year and thinking ... ok, this really is just a status comp. all the way down. I guess I was thinking the status comp. pressure at the median creates more stress just because of more financial instability but probably not.
I think that there is legitimately more stress if you're financially less secure, but I'd divorce that from status competition.
There might be no group Idahoans hate more than rich attendees of the Allen & Co conference.
I think Micheal’s right. Like have you even been to a place with a lot of yachts? Like some guy thinks he’s the cock of walk with a 180’ yacht and then someone pulls in on a 220’ one and he’s all pissed. And then there is the guy tendering in because his yacht is too big to fit in the harbor and now 220’ guy is pissed.
Edit - and per your dick measuring comment having a yacht that’s so big it doesn’t even fit…I mean…that’s the goal, right?
Funny enough yes. But that wasn't our experience. So a friend put together a charter to St. Barts during COVID and we got a harbor slip next to the owner of a NBA team. It was very clear ours was a charter but it felt like the whole harbor was pretty cool about it. Said differently, the levels are *so* clear as day -- everyone knows their place and it's pretty pointless to be a prick about it. And yeah, Abramovich's *TWO* yachts were there at the same time so there was only one king of the castle that everyone was looking up to.
I have a couple of friends who have owned yachts, but they're both sailing yachts and they tend to make rude comments about "floating gin palaces".
Fundamentally, the big powered yacht and the sailing yacht are different categories of thing, and the sailing yacht is more about, well, sailing it - about sailing skill. The dick-measuring is more about getting certificates or successfully guiding the boat through various difficult waters, or racing, ie personal skill rather than ability to purchase expensive things.
Interesting - then what kinds of status competition do you struggle with? Is it more within the realm of what’s possible for you?
Not go too deep here but I think the closer and harder you look, the more you see how much your behavior is influenced by others and by everything around us. Most of it is stuff you don't even realize you're doing or it's so deep, you're not even questioning why you're doing it. Best example is ... If were a full on FIRE advocate, I could retire right now. I'm not and I don't even think about it. I really like my job, find it fulfilling, get to help others, and think it sets a good example for my daughter ... but, those could also be convenient lies because it also affords a super fun, amazing lifestyle. These are things I think about and talk about most with therapists and try to work on.
You’re reminding me why I am sooo much happier to be living on the south side.
What a great comment. Better see this highlighted next week.
$60,000 for school in a country with GDP/capita of $4,000 is pretty crazy.
I agree but think about it this way.
School in a place like Massachusetts costs over $20,000 a year. It's just that taxes pay for it. All of the staff at a private school here are foreign hires. People aren't going to take large salary cuts to come work in a developing country. So staffing costs are going to be ballpark around the same as in a developed country. But with zero government support from taxes.
So just naively as a back of the envelope calculation you'd expect it to start around $20,000 a year just to get "public school" levels of facilities.
(In practice there is a lower tier of private schools that hires Filipinos for staff instead of white foreigners and those are cheaper.)
Then you add in costs for nicer facilities and things go up even before you start factoring in status competition.
Which is a real thing, of course. They only have 1,300 spots.
During Covid when students weren't at schools, a group of parents banded together and demanded the school give discounts on tuition since students weren't even at schools.
The school said fuck you, we're charging full price anyway, and if you keep making issues we will kick your kids our because we've got a waitlist of people wanting to get in.
Your post taught me a lot.
Really insightful post. This is what’s so infuriating about Republican’s attempt to destroy our institutions, rule of law and ability to collect taxes - they seemingly take for granted the impacts these things have on our day to day lives. I guess people like Peter thiel think they can just buy their way out of if but as your post alluded to money doesn’t solve all problems.
Good post but Taiwan is not a developing country by any definition I'm aware of, it's a wealthy country dominated by its high technology industry with a comprehensive welfare state and a Western Europe-level HDI. According to the IMF, Taiwan has been an advanced economy since 1997, the same year as Israel.
Correct but Taiwan definitely feels poorer than its PPP GDP would indicate. Relatively bad housing stock (and mopeds) don't help
This is a really insightful comment. Thank you, I appreciate your perspective (which I otherwise would not have). This makes me think of how all the Russian oligarchs have their kids in Paris and London instead of Russia.
Fascinating comment
What country are you in?
From the name, probably Vietnam
Matt writes: "Narrowly, no. HUD Secretary does not seem like a fun job to me, and I don’t want the pay cut. If I were to hold some kind of public office, I think a local gig would be more fun because it pairs well with first-party content creation."
I yearn for the day when government service becomes a real job. "Service" implies sacrifice, whereas a "job" implies an important task to accomplish by a capable person. HUD Secretary oversees and directs over $70B of discretionary spending, according to guidelines from Congress. Overseeing $70B of spending is a big job and requires someone who is competent and effective in that job. And that person is going to command more than the $246,400 that the current Secretary makes in any other private endeavor.
For comparison, the COO of Proctor & Gamble -- a company with ~$60B in spending -- made $8M in salary & stock last year. Now, I don't think the jobs are exactly equivalent, nor should the government pay $8M for the HUD secretary. But the job should pay more than 3% of what the COO of a consumer products company makes.
10000% agree. It's the least popular thing, but if we made our government positions higher paid, our country would be better off for it. I wonder if there's any good literature on the effectiveness of other countries that pay their civil servants better?
Singapore famously offers competitive with private sector pay and also has famously efficient bureaucratic institutions.
This seems super interesting, maybe there's an article there!
Switch to Westminster system. HUD would be headed by a member of the House of Representatives, who (as in Britain) would be free to do outside unemployment, subject, of course, to transparency and disclosure. Maybe even run a lucrative newsletter offering interesting takes. Then a measly $250k from the government wouldn't be a problem!
(Dodges tomatoes thrown by outraged clean government types.)
I jest, I jest. I'm aware the government is staffed by more than the dozen odd cabinet chiefs. Still, I am a fan of the UK's approach in this area. Not only do I believe their legislature is no more corrupt than ours, but I strongly suspect their system is superior in terms of talent acquisition.
As someone who lives in the UK, the big failing of the UK system is you only have a couple hundred MPs that can reasonably serve as ministers, and thus you end up with a lot of people doing jobs they have no background in because that's the job that's open to them.
To give an example, Michael Gove in his tenure in government was variously in charge of education, justice, food and the environment, no-deal Brexit preparations, pandemic response, and housing. No matter how smart a person, nobody can actually have depth of knowledge about such a wide range of things. Theoretically the civil service is there to ensure they're well informed about the area, but in practice handing someone responsibility for an area they haven't thought deeply about in their entire life just means they constantly try surface-level things until they move on to a different department.
I think the US system of appointing people who have experience in the area in question works much better in practice.
Fair point! But that issue in Britain could be finessed by allowing a certain number of non-MPs (say, 4 max per administration) to head ministries. Maybe make them temporary Lords for appearances' sake while they're in government? Or, simply allow politically-appointed, salaried experts to be brought in to advise government ministers (in essence a non-MP co-minister or deputy minister). IIRC this is already done to a (growing?) extent in the PM's office.
People can be appointed as Lords and then head ministries. The problem is that the accountability system for ministers relies on them being MPs and ministers in the Lords are held accountable by the Lords instead of the Commons.
Politically appointed experts is the origin of the "special advisor" system (spads, as they are known) and that quickly degenerated into being political advisors rather than subject-matter experts.
Ministers do not have the ability to do outside employment in the manner of a regular MP. They will be allowed to do very minimal things in certain circumstances (e.g. if they're a lawyer or a doctor, they could do the minimum work needed to maintain their license), but no more than that.
Unfortunately, this is always susceptible to cheap political tactics along the lines of "why should more of your hard earned tax dollars go to pay all these out of touch bureaucrats in the DC swamp????".
Given that this is ALREADY an effective populist bullshit tactic, I don't think that matters much.
I've just about given up hope that the U.S. government will ever pay a competitive wage. To take the most obvious example, Congress has a COLA written into law since 1989 so they never face the bad optics of voting for a pay raise for themselves. But instead, for every year since 2010 they have voted to not accept the cost-of-living adjustment. This vote never makes the news. I'm confident there is not one person in the country whose opinion of Congress improves because of this vote. Yet they give themselves an effective pay cut year after year out of terror that, what? That people might get an effective government? That voters will storm the Capitol over a 2% pay raise?
They do this for the same reason that CEO's often take $1 salaries and other theatrical stunts: it is just virtue signaling. The congressional Salary is not their primary source of income. Just like the CEO who makes $10 million in stock compensation to go along with their $1 salary.
Sure but there have to be people who won’t consider running for Congress bc they don’t have their own financial cushion. (There are other reasons too of course- most notably the need for nonstop fundraising)
completely agree. Matt has pointed out many times that if you don't pay market rates, the population will skew towards two extremes: crooks and fanatics.
You could put "people who do not need the salary" in either bucket.
Really, there’s a third extreme: incompetent individuals who wouldn’t be able to make more than the government salary in the private sector. There are definitely a handful of these in Congress.
Ironically, the Founders literally worried about this at the Constitutional Convention.
That's why they didn't encode property requirements into the Constitution.
British MPs were not paid until 1909. Paying MPs had been a demand of a whole series of working-class and other left-wing/liberal movements since well before US independence, which is why salaries for Congress are written into the Constitution.
One reason that this is such a mess is that to most regular Americans, $174,000 a year sounds like an awful lot of money. If you were, like AOC, a bartender before entering Congress, you got a massive pay bump.
And yet, most Representatives, because the skills needed to be a good Representative generally enable you to get a well-paid job outside of government, took a pay cut to enter the House, usually a significant one.
I think that's a bit glib; while a decent portion of congresspersons are wealthy, by the time you reach the bottom of the Top 50 members by wealth you're out of the range where passive income would outearn the congressional salary, and there are a decent number of house members especially who only have congressional income.
https://en.wikipedia.org/wiki/List_of_current_members_of_the_United_States_Congress_by_wealth
I think some of them are likely to be true believers, the type who think the sacrifice is honorable.
Between them and the people who do not need the money, it is easy to see how it would be hard to scrape together the majority required to approve the COLA (because they know someone will describe this as "giving themselves a raise").
Pay cut? The real action is in spousal employment. I doubt many of them are starving. But sure, your point is taken
(But again, just let them have outside gigs, subject to disclosure laws. Problem solved.)
People care a lot about social status. Arnold made way more as a movie star than Governor but he still wanted to be a Governor.
Is there any evidence that candidate quality is being degraded due to elected officials compensation?
Arnold famously took a $1 salary as governor.
But it's better if people who aren't super-wealthy from other jobs can be governor too.
The real problem is that at the moment, the people who don't find it a financial problem to take elected office are people coming from a job that pays less than $100,000 and the super-wealthy. If you're rich enough, the salary isn't the point; if you're middle-class, then you're fine on $174,000 even with the big increase in expenses.
But the classic "professional/managerial upper middle class" - people earning, say $200,000-$1,000,000 a year, are the people who are going to find a congressional salary financially challenging. And I think those are the people that many of us think make ideal congresspeople.
Honestly this is a problem with political offices and government work in general at the lower levels - they can't pay enough to really attract people who want to have it be a career so they lose a lot of capacity to be effective. And we celebrate this, because it's supposed to be some 'commitment to service' but then we leave small town mayoral positions entirely to retirees and independently wealthy people.
And then we leave Cabinet positions to small town mayors.
Hey, South Bend is at least medium-sized!
I posted about this yesterday. The salary for a member of the Congress has taken a 30% haircut over the last 30 years. Assuming this trend is broadly applicable across most government positions. My sense is this is the root cause of the talent issues. You pay for talent or you don't.
https://en.wikipedia.org/wiki/Salaries_of_members_of_the_United_States_Congress#/media/File:Congressoinal_Salaries.jpg
My longstanding take has been that Rep should pay $1M, and Senator $2M. That's barely a whole $1B ($635M to be exact) out of a $6.134T budget. Roughly one ten-thousandth of Federal spending.
Index it to a percentage of GDP.
Even better: Index their COLA to real GDP, but pair it with two other incentives!
1. At the end of every term, current Congresscritters OR alumni who have served within the last two terms will receive a bonus indexed to GDP growth for the two previous terms they have been in office. So, you get rewarded for the term you've just completed, but if you make policy that turns out to have been correct, you'll still get a bonus check two years down the road even if the voters disagreed with you.
2. Likewise, a similar bonus will be applied to their pensions**.
** This one's debatable. If we're paying so damned much up front, we probably could actually get RID of the pension system, and they could fund it themselves. But if we're keeping it, then this is still a good idea.
I think there's one really good argument for a pension system for congress: they are (or should be) ridiculously busy people. They shouldn't be spending chunks of their ability to make complex long-term decisions on their retirement: they should be spending all of that ability on making decisions for the nation.
I’ve recently thought about this in the context of a US war with another big power like China. If that happened, I would like to volunteer to serve (realistically in some bureaucratic or programming capacity, because I’m in my thirties and have a garbage knee), but even if I got a direct commission as a Major or other O4, I’d have to take around a 60-70% pay cut, which would make it difficult to cover my rent and family expenses. I’d still probably do it because the country would be in danger, but the logistics of the switch would be quite tough.
I will disagree. When assigning your heaviest and highest quality human assets, you ideally want them where they can do the greatest good. Your highest quality engineers, for instance, should be working on your most valuable and technologically risky projects and not on making marginal improvements to your day-to-day workflows. The reason is that improving fixed workflows can normally only give you a one-off improvement in your ROI (or worse, just a one-off lump-sum improvement in your bottom line), while disjunctive improvements can lead to continuous growth. Most of governance is closer to the "improve fixed workflows" than it is to "find new products and markets and generate growth", and as such it's _not_ where we as a society should want our best and brightest to be spending their life's work. (It's actually worse than that, since much of government is a pure deadweight cost center. Often necessary, but trust me those are the last places you want to spend your career if you're smart and ambitious, no matter how much they pay.) We are as a society _much_ better off with our best managers and entrepreneurs in the private sector growing the pie, than we would be if they were in government slicing the pie, no matter how well they sliced it.
Private sector workers can also be working on slicing rather than growing pies. Parts of the private sector are engaged in activity which has private value but zero or negative social value. (Zero-sum competition, rent-seeking, selling people literal or metaphorical opiates, etc.)
I don't see much evidence that private sector compensation is a good match for social value.
The must be why a significant portion of the best and brightest end up in management consultancies making powerpoint presentations.
Hardly anyone ends up in management consultancies. They mostly spend a few years there as training for more challenging and remunerative tasks.
This presumes most government work only makes changes on the margin. And in practice that is probably true. But government can also be extremely high-leverage in having both positive and negative multiplier effects. Take the Fed for example ... screwing that up can tank the economy as a whole. Likewise if the HUD Secretary could figure out creative ways to make strong NIMBY changes, not just from the own particular registered power, but also by using that position to influence local areas, convince and cajole and provide leadership ... think about the housing theory of everything impact on society. And if they just structured policies to give money their crony friends and enable another 2008 housing collapse ... that also would be terrible. Both are high impact and we'd do well to have strong, competent leaders rather than just careerists tinkering on the margin or clueless political appointees just trying to score points in the media.
I absolutely agree that government can have large negative multiplier effects. Our disagreement is that I believe that they can have at most capped positive multiplier effects. Look at it this way: The distance in effectiveness between the current US government and North Korea is very large. The distance in effectiveness between the current US government and (Switzerland/Singapore/name-your-favorite) is pretty small. If we recruited the best and brightest into government service, we might bridge the gap between the US and the best in the world. We would likely find that to be a loss, given what the best and brightest are capable of in areas where they can really shine. Spending a lot of resources optimizing sectors where the upside is capped is a mugs game.
I generally agree. But the US is probably the wrong baseline. Despite all our complaints and possible risks, we have high-state capacity, rule-of-law, a large welfare state, robust civil service, large investments in public infrastructure from transportation, sanitation, water, regulated financial markets, etc ....
The distance between a few countries that are arguably better in a dimension or two _is_ small. But compared to a baseline of any undeveloped country you want to list, there is a massive gap. Some of that is just compound interest of prior investment, some of that is maybe contingent on culture or natural resources. But a bunch of it is deliberate (sometimes trial and error) build-up of government capacity that enabled more efficient society.
All that said, my take is 90% of benefit comes from rule-of-law and nightwatchman style state basically gets you there.
I’m curious about your position here because this is usually operationalized for most government employees through strong civil service protections and unions which I thought you were against.
I’m with you in general with this comment but I don’t really have a sense of how you would make it work without a single scorecard like profit and loss.
Neither the head of HUD nor the COO of P&G have a union or civil service protections either. Those make it harder to fire people which I think is an impediment to excellence.
Sure I guess I was looking at where you said you wanted government service to be a job and like generalizing it. I agree we should be paying more and expecting more from leaders but generalizing that down to the rank and file isn't as obvious how you do that absent much more clear objectives and non-objectives.
Even as someone involved in doing civil service outside a union there's a lot of icky parts seeing the sausage get made.
There are lot of icky parts inside private industry too ... but competition tends to weed them out over time to a limited extent.
Obviously civil service protections are not an impediment to individual excellence. Nobody refuses to take a job because it has civil service protections. On the other hand, it will protect some low performers (from departing) which is an impediment to average performance.
But for the political positions they don't get any protections so they presumably need the compensation in actual pay.
I agree but I found it a bit confusing in relationship to the kind of unqualified statement that government service should be a job.
Public service should pay more, but there is noting wrong with asking for a few years of financial sacrifice for the honor.
The term "service" in general has been defined down way too much. Very, very often you'll see references to someone who "served on the board of XYZ company" or something similar, and it seems ludicrous to frame it that way, like "oh, that must be so hard, thank you for your service."
Serving on a board is voluntary and generally non-paying work. I served on the board of a non-profit which collected discarded computers and put them in libraries and schools for 17 years (when many libraries and schools had none). Many of the employees (who tested and assembled working computers) were disabled. I served on the board for the employees and the community (as did the other board members). Some of the time, it really is service.
Fair enough - I'm thinking of corporate boards, but I suppose there are plenty of other boards out there. It sounds like you did good work for a good cause and that's a nice thing to do.
It’s not about the $ for the HUD secretary. It’s about the boards you get to sit on, the endowed teaching position and other goodies you get afterwards. Still not P&G exec money, but pretty sweet high pay/low effort post government gigs.
Yeah but that's bad. We don't want people governing to impress potential next employers.
I absolutely wasn’t saying that it is good. I was just pointing out that too many “public servants” think that they need to make up for lost income by cashing in post government.
(Insert Lord of the Rings meme “Why shouldn’t I?)
I think a better comparator would be senior executives in non-profits and other "third-sector" jobs. Those are - like government - jobs where those working there expect to earn less than their counterparts in the private sector.
CEOs of large non-profits are typically being paid something in the half-million to million dollar range, ie two to four times what the HUD secretary makes. Most of those are somewhat smaller than HUD, in money terms, but larger in staff terms - International Rescue Committee has c. 11,000 staff (2018) to HUD's 7,000 and pays its President $800K. It only spends $800m a year (2020). HUD disburses a lot of money rather than directly spending it (e.g. it doesn't employ construction workers, but pays contractors to build housing), so perhaps a grant-disbursing foundation is a better non-profit comparison, but the Wellcome Trust employs similar numbers to IRC or HUD, spends several tens of billions, and pays its CEO about $600K (it's UK-based, so it pays £450K).
"nor should the government pay $8M for the HUD secretary"
Why not? I mean, I know why not politically, but as a matter of principle, why not?
Is there any evidence that bureaucratic performance will improve if we utilize private sector individuals rather than members of the career civil service?
I'm career civil service in a municipal bureaucracy. And the civil service compensation structure is bad and has perverse incentives but the primary issues with it are:
1. Lockstep compensation.
2. Compensation based primarily on seniority.
3. Compensation overly tilted towards benefits.
4. Pension plans that encourage burnt out employees to hang around after they lose the enthusiasm for the job.
5. Low entry-level compensation for white collar jobs.
The items I address above do cause issues. I've seen many burnt out employees in their late 40s decide to hang around to get the pension. And they're deciding to hang around a decade plus. That's terrible. The low entry-level compensation is a big problem when times are good.
The only reason I ended up in the public sector was due to the Great Recession. During the brief covid recession, candidate quality improved significantly. And once it ended we began encountering the same problems filling positions. Pay for accountants, lawyers, developers is just too damn low to get top candidates.
By contrast, I'm very skeptical that the public sector bureaucracies really would improve if we had more of a revolving door with the private sector. The private sector and public sector have important difference and the skill-set for one isn't as valuable for the other.
Number 4 is underdiscussed. I do consulting in an industry where about half of the companies still have pensions. Once people get only a few years in, many will stick to a pension job, even if they're miserable and make everyone around them miserable.
I'm going to leave my job for QOL purposes but due to the pension I'm better off hanging around for another 2 decades unless I can hit 180k. And that right there shows the public compensation model is bad.
FWIW, my opinion is we made a big mistake killing pensions in favor of voluntary 401k/457. Instead we should have killed them and replaced them with mandatory 401/457.
On the other hand, it looks like maybe 60-80% of the problem is solved with 1) default contribution rates (out-out rather than opt-in) and 2) default selection of target date funds.
People can still opt-out and contribution rates can be too low ... but it seems like most people don't actually think about this stuff and go with the default (which is why the option with opt-in was such a disaster for contribution rates).
this is a good compromise. I'll admit I'm a little more paternalistic but what you propose would be way better
Just spitballing, but I wonder if there could be "profit-sharing" amongst reformed government agencies. You appoint a new head, and give them the same budget as the previous administration. But you let them restructure the org and make whatever cost-saving measures they deem appropriate. Let them do this for a year or two, and then have an independent source evaluate the reformed agencies functioning and outcomes. If there were significant cost savings, then the agency head can distribute the "saved money" as bonuses (retroactively increasing the remaining employees' pay), and, if necessary to retain or attract talent, increased salaries for the employees going forward. If, as I suspect will be the case in many departments, there is a lot of low-hanging fruit in terms of increased productivity and "dead weight" actively dragging things down, then an incentivized reformer would have lots of easy wins to enact and increase both employee and citizen satisfaction.
That would probably be a disaster for the reasons most metrics end up being terrible proxies and can be gamed. https://medium.com/centre-for-public-impact/what-gets-measured-gets-managed-its-wrong-and-drucker-never-said-it-fe95886d3df6
Another problem ... I bet these agency head positions are pretty feckless jobs just because the nomination and approval process makes them rotating seat-fillers. The more politically independent Fed chair who serves across administrations seems like a way better solution.
I just woke up and I cannot believe what I actually watched take place at the RNC last night.
Hulk Hogan gave a weird semi LARPing speech as The Hulkster.
Kid Rock sang a song (not bawitaba, what!?)
Donald Trump gave the longest, rambling speech I’ve ever heard a person give in a public forum.
It was a circus of reactionary mediocrity.
I also forgot why I hated Trump so much. Last night, while he was going off about immigrants, my wife started getting emotional. She was an undocumented immigrant who was brought here as a kid. She was bright, creative and fun but she and her family really struggled. They all eventually got their citizenship but it was experience that made serious impact on her.
There is something about being a man and seeing another man make the woman you love cry. The rage is real. I had forgotten what that felt like.
Fuck Trump. I’m back on the hate train baby!!!
That sucks, I'm sorry your wife had that experience.
But we can still laugh at Jim Justice, governor of West Virginia and owner-operator of Shoddy Mineshafts, Inc. saying verbatim, "we become totally unhinged if Donald Trump is not elected", with the camera then pulling back to show a happy dog sitting on a chair next to him: https://x.com/Acyn/status/1813357303820886054
If you’re Kid Rock, you can’t possibly pass up a chance to drop the lyric “start an escort service / for all the right reasons / then set up shop / at the top of Four Seasons” at a Republican Convention. Incredible.
Yeah, but what if it’s a landscaping company.
Yeah but it’s not as exciting now. He’s just reading the bio on Amber Rose’s Linkedin page.
The escort service is actually right next to Four Seasons, and it provides you with a Ford from the 1980s.
Your honesty is refreshing. More people on the left should acknowledge their hatred. Take down the hate does not live here signs and live a more truthful life.
I have not found people on the left reluctant to say they hate Donald Trump. I mean my strong feelings of hatred were a serious source of mental anguish for me for a little while there.
I agree and I felt that too. But I let it go because it diminished me. The lefts gripping with hatred towards Trump hurts their ability to defeat him. If they took more of a Nate Silver posture they’d be much better off. But they lean far too much towards Joy Reid. I think acknowledging they have a hate problem is a good first step. But then they’ve got to let it go and get to work. They should have done this a year ago.
No, but Trump being out of the daily limelight for a while probably did lead some in the Democratic coalition to temporarily focus their hatred (or perhaps more accurately, intense dislike) towards other members of the coalition they find annoying.
Have you heard the tale of Darth Plagueis the Wise?
I think Matt's comments on the judiciary, while understandable in light of recent SCOTUS decisions are both too cynical and uninformed. Yea, people have biases, judges aren't immune from them, etc. But the judiciary did stand firm on the various nonsensical, evidence free electoral fraud allegations the Trump administration made. We should appreciate that rather than take a page from conservatives and dismiss the entire legal process as a sham where judges legislate their feelings from the bench. I also think he might benefit from reading some cases. Quite a few of the most controversial expressly say 'Congress could change this by writing a law, or by writing a slightly different law than the one they did.' Congress then proceeds not to write or change any laws and people blame the courts.
Lawyers are often messengers who get blamed for the message.Tell the client that, following basic grammar and English reading comprehension, they will be in breach of the contract they themselves signed, and they get mad at you.
Tell a client that what they want to do is illegal, and they get mad at you, instead of at the lawmakers who made the law. Tell them that if do it a slightly different way, it won't be illegal, and they get confused and again mad at you. They may have a point that it doesn't make a lot of sense, but a lot of the law doesn't, which shouldn't come as a surprise to anyone who's spent much time around politicians; I don't make the laws, I'm just the messenger.
Happens all the time, and isn't really that different from people getting mad at courts for reading a statute Congress wrote and saying, I have higher LSAT reading comprehension scores than you do, and this is what it says. And, since it's a disputed point, if a court substitutes its view of what would make sense for what Congress actually wrote (with rarely applicable exceptions such as for typos or truly unintended absurd results), the court is usurping the politic making role of Congress.
This is the best explanation of why so many people get irrationally mad (in my view) when court cases don't come out as they want. If you apply a policy lens to a legal question, your vision will always be blurry.
For the record I do think the situation with Clarence Thomas is totally disgraceful and a better functioning system would remove him from office. I also think we've had some mind bogglingly awful decisions that were ideologically charged and that is in no uncertain terms a bad thing. Maybe we do need term limits. I'm not against that either. But let's deal with the situation as it is.
Just riffing more than replying.
It’s an intensely naive view to believe that supreme court judges don’t rule based on their ideology.
No one--including appellate lawyers and law professors--believes SCOTUS to be free of ideological bent, but also a lot of cases are actually decided in ways that aren't pure hackery. About a quarter to a half of decisions are unanimous.
People don't tend to have ideological blinders on for every minor case that comes before them. On the really big issues I don't think your point holds. The justices are far more ideological (or even partisan) than judicious. And I think that applies to the liberal minority as well as the conservative majority.
Both liberals and conservatives ignore the vast majority of cases to focus on the politically charged ones.
I think its more judicial philosophy than ideology.
What an amazing coincidence that all of the Republican judges with their 'higher LSAT reading comprehension' (seriously?) happen to interpret the law on guns, affirmative action, Chevron deference, outdoor camping, abortion, presidential prosecutions, hanging ballot chads and more *exactly* along the lines of their party affiliations! And then all of the Democratic judges do exactly the opposite.
It's funny how conservative plaintiffs happen to bring the majority of their cases in the district of 1 single West Texas judge, who by coincidence always rules in their favor. Dispassionate objective interpretation- just balls and strikes!
Another thing about judicial review I find hard to take seriously is how often appellate court decisions are reversed 9-0 at the Supreme Court. For example the SC reversed the vast majority of appellate cases brought to it in this term, including a 79% reversal rate for the 9th Circuit. If JR is just objectively reading the text of a law, clearly some body of judges is consistently it getting it very wrong here. Which one is it?
seems kinda inconsistent to decry both split decisions on partisan lines and also decry 9-0 decisions, no?
I'm sorry I have not 1 but 2 examples of how judicial review is subjective astrology ¯\_(ツ)_/¯
But any umpire knows you gotta throw three strikes to get the argument out!
Life is messy, and of course there's often more than one thing going on. But just because the boundaries between two things are blurry and not clean black and white lines doesn't mean there isn't more than one thing. Some of what I described and some of what you described.
One can of course choose to always refuse to talk the thing I described and instead focus on the thing you described. But that doesn't mean the thing you want to talk about is the only thing in play.
You are an attorney, correct? Alternate take- American society is dramatically over-lawyered, with every single tiny issue subject to endless litigation, arbitrary judicial power, and of course billable hours for the lawyers. People who benefit from this state of affairs, not only financially but status-wise in society, of course have great rationalizations as to why the world should work this way.
Instead, judicial review should be dramatically cut back, legislative power to make solutions should be enhanced, and private litigation in general should be made much more difficult. The courts should be a night watchman state with a narrow remit to guard the Bill of Rights, and that's it
Yeah, why can’t legislatures just write completely unambiguous laws that everyone always agrees on! Then you don’t need pesky judges to adjudicate disagreements!
"Very simply write laws that do not require interpretation" starts sounding very techbro-y "contracts/laws as code" nonsense.
Apologies if that's not the direction you're trying to take the conversation.
How do other developed countries that don’t have judicial review manage? America is one of the world’s most litigious countries- are you saying any other model is impossible? That’s a very America-centric POV
If private litigation is made much more difficult when it's already ruinously expensive, how do you propose that people adjudicate disputes and contract breaches?
How do you think the rest of planet Earth works with 'loser pays' rules? We're so exceptional in requiring that both sides to pay their own attorneys' fees that it's literally called 'the American rule'. Why should we be the only country in the world that does that?
Plus, you are an attorney too, right?
That would require legislatures to be effective, and require actual fair electoral systems, rather than custom-built districts. It's impossible, unless the US legislature becomes a unicameral 50+1 system instead of the garbage it is now.
The 9-0 decisions should ideally come from one circuit court splitting heavily with all of the others in some manner. Though in the case of the 5th Circuit as you say, it's more a matter of pushing hard and to see how far this SCOTUS will go along with them. Though usually, they can get at least one of Alito or Thomas to ruin a unanimous vote against them...
I think of 7-2 decisions as the new "unanimous decision." 8-1 is the "super-unanimous decision."
Thought I'd expound on how I'd like to see judicial review done right:
1. All judges picked in a secret process by Congress, the votes are secret, and require a supermajority to approve each judge (this is how Germany does it)
2. Individual judges have no power to find a law unconstitutional (sorry Aileen Cannon), but can only refer cases to a full appeals court. (The US did a version of this from the 30s through the 70s BTW)
3. A full appeals court of 15 judges requires a supermajority of 9 to find something unconstitutional
4. The judiciary is limited to reviewing government actions around the Bill of Rights only- speech, religion, due process, etc. Any laws passed regulating a for-profit corporation are completely exempt from any judicial review. If Congress passes it, that's the final word
5. Congress may overrule *any* judicial decision on *any* topic- they just have to pass the overruling law in 2 Congressional sessions in a row
6. Agency heads are appointed by Congress for 4 year terms, not the President. (We should be reducing presidential power anyways). Again, to find an agency interpretation of a law impermissible should require 9 out of the 15 members of a full appeals court
1. Who makes the nominations?
1.a - This could lead to giving more power to judges because legislators can choose justices who will make hard decisions for them, but then not be responsible for their vote for them
2/3 - fine.
4. Why would the judiciary be responsible for the bill of rights, but not conflicts between the states, conflict between the federal government and states, conflict between the president and congress, etc.
4.b If congress passed a law confiscating all assets of a for profit corporation, the owners have no legal recourse? Is this just for profit corporations because they are taking advantage of the government liability shield, or would you apply this restriction on legislation to partnerships, sole proprietorships, etc. ?
5. I'm broadly supportive of this, but would require a 60% majority instead of 50%+1
6. Torn between my yes to agencies moving under congress and my no to giving an agency head more power than federal judges. I think I'd be willing to support this if when a 9 member majority of a 15 judge panel found that your interpretation was unconstitutional, then you were removed from office for cause.
1. Congress can form an expert panel to examine judicial nominees and their record to-date, and then make nomination recommendations, like all of the other developed countries in the world that I'm aware of
4. They can do half of those things, but part of being an actual republic and not like a loose confederation in my view is that when Congress passes a law, then the states have to abide by whatever that law is. So that would resolve 'conflict between the federal government and states'. I would need examples of 'conflict between president and Congress'
4b. Yep. Partnerships, sole proprietorships, yep
5. Sure, I'm not married to like all of the specific details there. But I think requiring that the overruling law be passed in 2 separate Congresses removes some degree of intense populist pressure. If it's a good idea to overrule the SC, that should be self-evident to Congress over a long period of time and not just 1 election cycle
6. I don't think judges typically find agency interpretations 'unconstitutional', they just say that the agency doesn't have the power to do X based on the law as-written. Your idea seems a bit unfair if the US continues to lack judicial advisory opinions, as civil law countries tend to have
1. That's fine.
4. Supposedly the federal government is granted specific explicit powers and the rest are reserved to the states/people per the 10th amendment. I'm assuming you would get rid of that and simply grant Congress supremacy over everything.
4.b. Yeah, I'm against any part of government being able to do whatever they want to something just because its owned by a business. The government shouldn't be able to seize all of Vanguard's assets because its a business and there be no legal recourse for anyone involved.
5. Think I generally agree, but would probably put a time limit on it of ~3 years. Otherwise you could have a Congress pass it in the lame duck session and then immediately pass it again. Still prefer the 60% threshold because if they are going to overrule the court, I think it should be obvious to them just like you would require the court to have a 9/15 super majority.
6. Politics isn't beanbag. If as an agency head you agree that something is a legitimate exercise of power that a super majority of the justices disagree with, there need to be consequences. A key point of making it harder for judges to rule something illegitimate is to get the agencies to push the boundaries less and I think this is a good way to do that. I'm open to other suggestions so long as they provide a significant deterrent.
As for 4(b), presumably this would be a 5th Amendment "takings" claim, so allowable.
His wording was that any regulation would be considered unreviewable by the court. Maybe a "takings" is an exception, but there opens pandora's box because many regulations could be considered a "takings."
To describe #4 differently, it means that no for-profit corporation can ever bring suit to challenge the enforcement of any law or regulation, except on grounds that the law or regulation violates one or more of Amendments 1-10?
Yep
I think it would be cleaner just to require a super majority. This is in keeping with our constiution, where the "highest" powers of the political branches usually involve super majorities. It would also be in keeping with Marbury, which IIRC was a 2/3rds majority.
Why would Mitch McConnell appoint any agency heads for a Democratic president?
I'm not sure I understand the question. 'The winning party or parties appoints the agency heads' is standard here, just with a different appointer, and also standard in parliamentary systems to my knowledge. If Dems want to run the agencies, they need to win the Senate?
I didn't realize your intent was to have the party that controls the Senate lead the bureaucracy. In that case, while I don't know whether I agree or disagree with your system, it makes internal sense.
Are you aware that the Supreme Court decides what cases to hear, and rejects the vast majority of appeals at that stage? I don't think it's surprising that when they do hear an appeal they're highly likely to reverse the lower court decision - if they knew they would uphold it there's not much point in hearing the appeal in the first place.
"If JR is just objectively reading the text of a law, clearly some body of judges is consistently it getting it very wrong here. Which one is it?"
In the context of your point regarding appellate reversal, it's the second one. The 9th Circuit is a very "innovative" and activist circuit along progressive lines, just as the 5th (and to a lesser extent the 11th) is along conservative ones. This is widely agreed on by observers regardless of political bent. One needn't disagree with the 9th Circuit or think that its decisions are bad to acknowledge that it's an influential Circuit covering a highly populated and economically important area of the U.S. that's nevertheless inclined to push the envelope on decisions.
OK, so the 9th & 5th circuits aren't practicing true judicial review? I mean, just to make your statement, you're admitting that in at least 2 circuits JR is just a cover for their personal political views and isn't 'balls and strikes'. Once you've admitted that..... you see the problem?
Honestly I basically think of judicial review as kind of the exclusive reserve of SCOTUS, but that's not formally correct, so I take your point regarding the lower courts.
Ok you've proved that judges aren't a computer algorithm -- but they've never been supposed to be that. They've always been supposed to use judgement and -- if anything -- they did so more and applied their own values more freely at the founding. (why I think originalism correctly applied wouldn't narrowly focus on history).
Hence, why they are appointed via the political process because they do exercise substantial powers to decide what's fair and act as a coequal branch.
They will always have biases and values. But the fact they change slowly and are relatively politically immune and steeped in a professional sense of the law makes them better at deciding defaults and interpreting rules than the politician of the moment. At least one election can't swing them in an instant.
There's some sense to what you say. But let's say that the nation turns strongly in a liberal direction over the next few years and stays that way (it's hypothetical; stay with me here) but the Court remains strongly conservative over the next 30 years due to the Bush Jr/Trump appointees. Is that the way the system should work? Stability is one thing; being ruled by the dead hand of long ago Presidents is something else, in my opinion.
Basically, outside of gun control and requiring the recognition of same sex marriage (and continuing to apply good 1a precedent) the current court hasn't said almost anything can't be done by the federal government. What it's repeatedly done is said: no, you can't do that without passing a new law or no that has to be up to the president congress can't do that. And, yes, those choices often do reflect conservative values in where congress has to make a clear statement or in denying agencies power to make changes on their own.
But that's only infuriating to the left because the country is so closely divided that they can't just expect to go back to congress and slap on a quick fix. And sure, it is frustrating but it's not even sorta standing athwart the clear will of the people -- indeed, it's so frustrating because it has enough power to swing things in favor of the 48% rather than 52% of the country but that's not unreasonable for a mechanism in a republic. And when the country really shifts substantially usually the court does too even if the same people stay on it (they aren't unaffected by culture).
Oh, the Court is going to do what it's going to do. But just don't insult us by saying, "hey, if you don't like this then just pass a law in Congress, easy peasy."
It's drawing blood to get anything controversial through Congress. We don't need the Court mocking us about it.
But see my other comments. Most of what the court has done recently doesn't stop a congress and president willing to pass laws. Loper v. Bright only ruled that the court doesn't presume deference to the agency's interpretation it doesn't prevent congress from passing a law explicitly saying: defer to that agency. VRA preclerence, again the court just required congressional fact finding. Even Dobbs -- which returns something to the states which wouldn't be a thing without SCOTUS -- might allow simple federal preemption and certainly would allow a single payer system to offer abortions (state governments can't interfere with federal employees from doing their jobs). And even if not ultimately it still doesn't force anything on states so it's hardly being ruled by the dead hand of the past as much as democratic choices at the state level.
Mostly the way SCOTUS ends up benefiting conservative policy goals (could change with new norm breaking Trump appointments if 4 justices die as he's disillusioned w/ fedsoc) isn't by saying "you can never do that" but with rulings that make it a bit more difficult to do some things.
There are very few exceptions -- mostly gun rights but given that's actually in the bill of rights I don't have an issue saying we need an amendment to change the situation [1].
--
1: While the left correctly points out the importance of the militia clause in reading the 2nd amendment I don't think they have thought very clearly about what taking that seriously really means. After all, it prevents the federal government from doing something so it can't possibly mean that it allows the federal government to make guns illegal for anyone not in the national guard and also to legislate who counts as part of the guard -- together that wouldn't constrain the federal government at all.
So, at a minimum, if you give the militia clause weight, it must protect the ability of states to do exactly what they did at the founding -- declare all adult citizens members of the militia and let them carry normal infantry weapons. In other words all the red states can let their citizens carry full auto assault weapons and the federal government can't do anything. And if it's incorporated against the states then - taken seriously - it protects all assault weapons so I think most of the left probably prefers the self-defense of Heller to taking the militia part seriously.
(though personally I think that's backwards. Assault weapons seem scary but handguns are ideal for concealed carry and use in crime hence why they are 95% of gun homicides. I'd take a ban on handguns in exchange for a right to automatic assault rifles in a flash.)
The militia clause is inextricably linked to the term "bear Arms" which refers to military service, both now and in the 1780s. It also refers to this right as belonging to "the people", which when used elsewhere throughout the Constitution refers to a collective entity engaged in a collective activity (e.g., "We the people ... do ordain and establish this Constitution...), while using "person" or "persons" to describe rights specific to individuals.
I think if states wanted to base gun ownership on their interpretation of a well-regulated militia, that would be fine -- if they meant it! It couldn't be "yeah, everyone who has a gun is in the militia" without doing anything else. Make it a real militia! I'd be happy with that, and drop any concern about the federal government being involved.
But that would never happen, which just means that our originalist Supreme Court has decided they're "living consitutionalists" when it comes to the well-regulated militia clause. Like Humpty Dumpty, they decide what the words mean, even beyond the absolutely clear meaning.
A high number of 9-0 reversals are of outlier decisions in low-profile "circuit split" cases. Due to the way that circuit precedent works, it's fairly common for this sequence to happen:
(1) moderately complex issue presented in case that looks easy (often due to poor briefing by the parties)
(2) court decides moderately complex issue without realizing it's complex, often with only a paragraph or two of analysis
(3) all subsequent panels in that circuit are bound by decision (2), like it or not
(4) other circuit courts have different cases more clearly presenting the issue, and they disagree with interpretation (2)
(5) SCOTUS grants review of issue (2), perhaps after decades, and 9-0s it.
For example, next term the Supreme Court will decide an issue involving the standard of evidence under the Fair Labor Standards Act, in which the Fourth Circuit is an outlier. It appears that the Fourth Circuit became an outlier on accident, quite literally by sloppy copy-and-pasting. All Fourth Circuit panels have been stuck with that sloppy decision since. The Fourth Circuit's decision is obviously wrong, and will be 9-0'ed.
https://www.scotusblog.com/case-files/cases/e-m-d-sales-inc-v-carrera/
I don't think this idiosyncratic process says anything about legal determinacy in general. If anything, it shows that the law is quite determinate.
I think people get mad at lawyers because if "basic grammar and English reading comprehension" will get you the right answer, then what am I paying my lawyer $600 / hr for?
Chances are you're more paying your lawyer to fight about the facts, not what the law is. A very small percentage of cases involve real disputes of pure law, and those are the cases SCOTUS reviews.
In pure law issues, it's simplistic to say that just reading the rule will tell you the right answer, but the vast majority of legal problems are easy, and just reading the rule carefully will almost always tell you the right answer in easy cases. Laypersons are less good at reading the rules because they don't know where to find the rule, don't understand the meta-rules courts use to read rules, don't understand the background structure of the law the rules are written in light of, and lack knowledge and experience of the procedures used to interpret and enforce the rules. But with those qualifications, it's a lot of just reading the rules.
Or perhaps even more pointedly, if this is just a matter of applying reading comprehension and grammatical skills, why aren't opinions 5 pages long rather than 100 pages?
I’ve always thought that the discourse about the court reveals commentators to be *far* more biased than Supreme Court justices.
These commentators decry any inconvenient ruling as illegitimate. Do they ever stop to think “isn’t it weird that the correct judicial decision always lines up perfectly with liberal policy preferences?” Like, you’ll never see a pundit say that even though a court ruling will have bad policy outcomes, it was nevertheless the right decision from a constitutional law perspective. On the other hand, justices rule against their own policy preferences all the time.
You have to get at this question a few different ways to get a useful answer, I think.
If the question is, does the law (in general) ever disagree with your policy preferences, I think most everyone is on the same page that the answer is yes. Lots of people think it's bad for the Constitution to grant Wyoming the same number of senators as California but there's no dispute that the Constitution in fact does that. You might be a libertarian and think businesses ought to be able to hire and fire however they like but everyone agrees that the Civil Rights Act of 1964 prohibits job discrimination based on certain categories for covered employers. (I suppose there might be an argument that that's unconstitutional, but we'll leave that to one side.)
But these are not the kinds of questions that get to the Supreme Court. The Supreme Court hears cases where the law is unclear. And where the law is unclear, policy preferences tend to matter a whole lot more. Some of this is bias, but some of it is also that the formal legal materials that make up law are somewhat indeterminate--sometimes the court system needs an answer but text and precedent just don't provide one.
That doesn't mean that Supreme Court justices never vote against their policy preferences--they do, though I don't know about "all the time"! Sometimes that's because there is a good legal answer quite apart from policy and a nine-member bench of highly capable judges is able to reach it even if other appellate courts have messed it up. Sometimes that's because there's a principle they care about that goes beyond the policy consequences in a particular case: Justice Kagan for example is a particular stickler about stare decisis (though the reason to care about the principle might itself be for its policy consequences, e.g. you might imagine that stare decisis is appealing to Kagan because it restrains the conservative majority). I don't disagree that a fair number of commentators are less sophisticated in how they think about the Supreme Court's decisions than the justices--the strength of your legal argument does matter at the Supreme Court and matters much less in punditry. But it ignores reality to discount the importance of policy considerations and ideology to how the justices vote.
I probably should’ve been clearer. I completely agree with you! This court has obvious biases and the conservative majority has applied some of their principles inconsistently.
My point was more that the commentary about the court is so ludicrously biased that it’s essentially useless from the perspective of someone trying to determine whether the court is doing its job correctly.
"I have no idea what to teach anymore because everything that I've taught for years is completely changing!"
--paraphrasing some law professor on Twitter bemoaning about this SCOTUS
I presume that professor must think the Warren court was the worst thing ever given how throughly they changed things ;-)
Exactly. Live by the sword, die by the sword. During the three decades after the 1937 "switch in time that saved the nine" the Court slashed and burned its way through huge amounts of established precedent and dramatically remade American law.
You can't celebrate that and also claim to put stare decisis on pedestal and criticize today's Court on that basis for overruling prior precedent. The lack of self-awareness on this point of so many of those criticizing today's Court is hard to swallow.
TBF, I think a big part of what happens is that people study an area intensely and obviously get worked up about it when something changes they've published law review articles about etc etc. But I don't think the public realizes that's part of it especially since the incentivizes are for all the people who disagree but aren't outraged not to pick a fight over it.
Folks who know the Court better than I do: is stare decisis really a thing? That is, are there cases where the justices vote against their ideological and/or judicial preferences because they think it's unwise to overturn precedent?
Stare decisis for me but not for thee is great when you're the me; but it's more compelling when you grant it to thee as well.
I mean the Warren Court was partisan as hell, but then, it was the only way to pick apart Jim Crow, because states rights were so ingrained on the constitution that it would otherwise be impossible.
All supreme courts are intensely partisan, it's just a pretense that they're some wizened, supreme lawyers who are perfect at interpreting laws impartially. If the court's going to be partisan, better it be partisan doing good things than bad ones.
That’s just another way of saying “but in that case, the untethered judicial legislation was good, so it’s OK!”
There are IMO very legit criticisms of what the court is doing these days but I think they aren't as neatly partisan as a lot of the critics make them out to be. For example I think the real problem with Dobbs is the murder of stare decisis (note I am pro choice as a matter of public policy). That's why a law professor will clearly bemoan that. Similar deal with Chevron deference, though I think the reaction to that has been a bit more overblown.
Of course you'll see other stuff like the gun cases, Heller, Bruen, etc. that left of center people get upset about, and while I doubt those cases go the way they did with different compositions on the court the reality is that state and local gun laws had never been challenged under modern, post 1960s jurisprudence and the precedents that did exist were not particularly on point.
Do these same people get overwrought about overturning Plessy or Lochner?
"the Second Amendment that doesn’t give a strange carve-out for things that scare soccer moms and fat cops."
"A well regulated Militia, being necessary to the security of a free State. . . "
Why are so many high-profile SCOTUS decisions breaking on partisan lines and going against stare decisis? At a lower level, you might count the activist judge trying to unilaterally enact a nationwide ban of mifiprestone as an example of how bias is corrected because that ruling was overturned, but how do you think the rest of his cases are being decided?
That's the thing. Most of them aren't. It's that the subset that do tend to touch on the most intense areas of controversy and disagreement, not just in the court but in our politics generally.
People study this, and current rates of overturning precedent are consistent with historical norms, not unusual.
The bigger issue with Matt's take about the judiciary being run purely on partisanship is that it allows only war over the position. Every faction should fight tooth and nail to get their preferred candidate in office because there is no real adherence to stare decisis or following the text/spirit of the law. It's all judicial hand waving to confuse people so they won't notice that every judge is simply going to rule the way they want.
Unfortunately it’s often the truth and should be dealt with by limiting the power of the judiciary. and move in the direction of more parlamentarism/representative democracy (and in some cases deregulation). Judges should not handle issues that aren’t directly related to core rights that protect the democratic process itself, e.g. abortion (not related to the democratic process but should be decided through democratic means).
I don't disagree with the end goal, but the means is for Congress to be more active. Missing that, all you are doing is handing more power to the presidency.
Matt gets it. The constitutional rulings are just a bunch of prestidigitation. Yes, trained lawyers can play that game at a more sophisticated level than lay people, just like English PhDs can engage in more elaborate literary criticism than I can. That doesn’t mean the game is worth playing- because it doesn’t tell us whether the policies embodied in the constitution are good or bad.
However, the biggest driver of judicial power is that Congress is too gridlocked to do anything. It hasn’t even managed a forceful response to January 6. Nature abhors a vacuum, and courts are happy to step in.
I suspect the Court knows perfectly well that Congress is unlikely to pass a law that overturns their decision, so just saying that Congress should pass a law is like telling a poor person that they should just go make more money.
That's not the court's fault or problem. Our constitution has a separation of powers. What you seem go be asking for would grant the judicial branch way more policy making power, not less.
This court has undermined voting rights, gerrymandering reform, and has generally bent over backwards to enable Republicans to consistently block the exact kind of policy you are talking about. So yes, it is very much their fault and their problem.
Oh, I'm just wishing for a little less hypocrisy. Don't say empty, meaningless things and stand fully behind your decision as the likely last word.
I think Matt is right, *when there is wiggle room*. But the fact is that, on the vast majority of questions people might disagree on, there is not much wiggle room in applying the law to those circumstances.
You make good points that much of the Court's controversial actions involve statutory interpretation rather than constitutional law.
But it is important to remember the Courts read the newspaper too. The courts are very aware that with a 60 vote Senate, staggered terms and generally divided government it is very hard for Congress to continually update previously approved legislation.
Perfectly drafted legislation with unambigious meanings is quite rare. Judges have a lot of leeway to say the law was poorly drafted and substitute their preferred policy as the proper reading of the law. So activists in the courts, who very much exist on both sides, often exercise a judicial veto under the pretext of statutory interpretation.
Hey Congress go back and re-write the 2020 law. Oh the unified government that wrote it is gone, too bad sucker.
Just because the judges aren’t in Trump’s faction doesn’t mean they don’t have a faction.
To tie the Supreme Court and the Peter Thiel questions together, I'll observe again that almost everyone in America believe in some form of anti-democracy. That's the whole point of having a Constitution and a Bill of Rights, an observation that some rights are so important that they should override majoritarian desires. The question at hand is that people disagree on which which rights should be seen as those that supersede democracy.
I think democracy is great when it makes decisions I favor. It reveals some disappointing flaws when it does the opposite.
Gore Vidal — "There is no human problem which could not be solved if people would simply do as I advise."
"The Bill of Rights is everything you idiots don't get to vote on." - Kevin Williamson
The Bill of Rights and the Constitution aren't examples of anti-democracy or even a negation of majoritarian desires. They both are the product of majority wishes and can and have been changed by majoritarian processes. It's an oversimplification, near to the point of inaccuracy to see democracy as only meaning the expression of the desire of a simple majority. We voluntarily, democratically slow but never eliminate our ability to expand or contract individual liberties.
Could we agree that the amendment process is LESS democratic than a simple majority vote would be?
Given a highly espteric definition of democracy that no one uses? Yes. Given the way that people actually use that word in real life? No.
Voting is an important part of democracy but more voting doesn't always mean more democratic.
I firmly disagree that no one—even in the hyperbolic sense you mean—uses “less democratic” to mean less subject to popular vote. I particularly disagree that that meaning is esoteric *at this website where we all pay to read and talk about politics.* In fact the idea that the Senate is less democratic than the House is commonplace among people who talk politics, as just one example.
“Voting is an important part of democracy but more voting doesn't always mean more democratic.”
Can you say more? Because without contrary examples in mind (which is probably my lack of imagination), I would say that in fact more voting, and more simple majority voting, probably *does* almost always mean more democracy. What I would like to say is that more voting, and more democracy, doesn’t always lead to good results; that’s why we have the concept of the tyranny of the majority.
Maybe? Less democratic, but maybe not less democracy? It strikes me that democracy is at a low if there aren't strong protections for minority views and people.
I would say less democratic but more liberal. Upholding liberal values like freedom for the minority requires going against democratic decisionmaking to some extent.
I would say less majoritarion. A society that could only pass laws by consensus is as democratic as a society that passes laws by 50%+1.
I don't think I agree. If any one person can overrule the will of the rest of the polity, I don't see how that could be considered democratic.
I think that narrowly, this is obviously false.
Like, could we agree that if there was a law that could theoretically be overturned, but it took literal total unanimity to overturn it (100% of all voters had to agree), that law is not meaningfully under democratic review? How about one that took 99.99%? 99.9%? 99%? 98%?
Isn't it obvious when you look at it that way that requiring large supermajorities is less democratic proportional to the size of the supermajority required?
But the larger point I think is that people creatively reinterpret the term "democracy" to mean "whatever I like."
I think it depends on your view on status quo bias. A society that can only change laws when they get supermajorities does a better job reflecting the "will of the people" than one that can change laws at 50%+1
I suppose you could make the case that that's true with an intermediate layer of representatives -- like they trend more radical than the underlying people? But if you are hypothesizing a world in which 50% +1 of the people want a change to the law, then that's only true to the extent that "the will of the people" means something other than democracy.
They're a product of an aristocracy that believed that people should be given as little access to the halls of power as possible- that people in more populous states were worth less than people in less populous ones, and that while judges should not have to have supermajorities to decide, the people should, because judges are enlightened people, while the normal people must be kept away from power at all costs.
I have some sympathy for this view but also, have you met people? : D
That is the effect of why the senate is the way it is.
I'm aware that originally senators were appointed by governors, which is even worse.
My view is that only a narrow set of rights that serve to directly protect the democratic process itself (e.g. voting rights, free political speech, free political association) should be protected against democratically decided infringement, and everything else is up for grabs to be decided by voters and their representatives.
You're doing the "Nothing is better than God. A ham sandwich is better than nothing. Therefore a ham sandwich is better than God." thing. In a sense one could argue that enshrining rights in a way that protects them from immediate voter sentiment is anti small d democratic. Still, that is nothing like the "completely undermine free and fair elections in the US" that Trump and Project 2025 are going for.
That being said I also disagree with you that the Bill of Rights is anti-democracy. Democracy is a broad term and many implementations of democracy purposely make sure every law isn't the direct result of a vote or that every law is immediately repealable by a vote. And with good reason. Public opinion is often unstable and/or misinformed. It is perfectly reasonable to set up elections so that the people have a huge say in their government without giving them ultimate authority on everything. Setting up a stable democratic government is pro-democracy, not anti.
"Wait, there's a place where I can hire chear maids, cooks, drivers, and nannies? Sign me up!"
*monkey's paw curls*
Anyway, this is a good observation by Matt, and also demonstrates that, while people bemoan about Baumol's cost disease, the conditions in which it arises are overall good: our society got more productive and richer! It's just an unfortunate side effect--at least in the sectors where it grows naturally.
Yeah, when I was visiting some of my wife’s family in the Philippines (shout out Ilo Ilo, one of my new favorite places) everyone had “yaya’s” basically full time servants/drivers/cooks. However, the standard of living is low. The doctors in her family make a good living in the Philippines but they can’t afford to fly to the US and visit because it’s “too expensive”. How many doctors in the US couldn’t afford to travel to Europe or Asia if they wanted?
All the kids want to go to college in the US but they told me that was likely a pipe dream so they would settle for a decent college in Manila.
I know lots of Filipino nurses who plan to retire in the Philippines but absolutely none who want to work there. The economics don't make sense at any other stage of life.
The basic play for all of my wife’s retired Filipino family members is you spend 6-8 months in the Philippines and then live with family here for the other 4-6 months. While in the US you do all your medical stuff, enjoy the air con, and spend time with US family.
So you have a cook but most of time they just make a few versions of the same soup. You have a driver but they are driving an older SUV, not a brand new BMW, you have a house maid, so your home is relatively clean, but electricity is extremely expensive so you are sitting around, sweating with the air con off in 98 degree, 90 percent humidity weather.
I’ve seen these lives. I’ll take eating different foods from all over the world several times a week, driving a new car myself, and cleaning my house but turning on the air con whenever I want.
We are in the best place. It’s ok to love America! People are literally dying to get in.
Happiness surveys suggest otherwise, as does average life span statistics. America is great if you want to spend 60 hours per week working, 10 hours commuting to work and the spend the rest of the time inside your air conditioned McMansion without meeting people other than your closest family.
It *sounds* like it, because you’re imagining that someone with a full time set of servants also has the financial ability to do a lot of things equivalent to traveling to Europe. It’s just hard to imagine full time servants being so cheap that you can afford them when you can’t even afford things like an iPhone.
Insert famous Agatha Christie quote here.
My colleagues at my level in Hong Kong, for example, have absolute piles of servants (live in nanny for each kid, cook, housekeeper).
These people are usually foreign workers (and sleep on, like, cots).
“The key to thriving in the modern world is to push against that instinct to be lazy, which is challenging but not some gigantic intellectual puzzle.” Careful, Matt. For a second there, it sounded like you were encouraging us to view an issue through the lens of personal responsibility and individual agency rather than systemic forces and society’s limitations. And, of course, we must choose one way to view the world! What are we, moderates?
To be contrarian, I have a couple systemic answers for you
- Rich suburbs often have rec centers with subsidized gyms. This usually comes along with having good schools™. Maybe every community deserves a rec center. Maybe we need to implement gym choice with a voucher system.
- There was a time when Americans chose to shut down all of their public pools rather than have white people swim in the same water that black people swam in https://www.nytimes.com/2021/02/13/opinion/race-economy-inequality-civil-rights.html
I feel like McGhee's story is way too simple. In Chicago, the huge urban public pools that were closed during this era were built more for public bathing / sanitation at the turn of the century and after the first wave of suburban outflow, there just wasn't the demand + they were falling apart. So while the timing works conveniently for McGhee -- I think the root cause of the closures were more just economic.
https://chicagodetours.com/swimming-in-chicago-public-pools/
One other point I've wondered about is if any public good could continue to be offered if the number of people eligible to use it suddenly doubled. If a judge decreed one day that NYC Public Libraries had to lend books to anyone that stepped through the doors instead of just NYC residents, could they decide that the margins don't pencil out anymore and it makes more sense to close up shop? And could that be construed as "snooty New Yorkers would rather close their libraries than have to rub shoulders with mouth-breathing tourists"?
I of course acknowledge that racism, in the form of taxing black citizens and not letting them use the facilities, played a role in being able to provide the public good (pools) in the first place.
I think of the pool thing whenever someone's like "surely people won't compromise their standard of living for the sake of getting their preferred vibes!"
It's one of the reasons why I think it's very possible a 2nd Trump term will actually go through with a dumb 10% tariff and/or repealing IRA.
In the hypothetical world where judicial review didn’t exist, we wouldn’t have a Roe to overturn, we wouldn’t have a Loving, a Griswold, a Brown, an Obergfell. And we most certainly wouldn’t have a robust First Alendment that makes the United States unique. (Not even Canadians or Estonians have the same level of free speech.)
Maybe that would be a better world but I wouldn’t assume it.
I think multiple Matts (Yglesias and Breunig) have made a pretty compelling point that it’s not clear judicial review is a better avenue for achieving those goals than through electoral politics. Gay marriage was becoming a majority position and republicans were facing serious trouble over their increasing unpopular opposition until the Supreme Court took it off the table. Most European countries address abortion legislatively and have equal if not greater protection than the United States.
The best pro case is probably Free Speech but I think a lot of that can be attributed to the unique culture of America similar to guns. America is not an outlier on guns due to a robust jurisprudence respecting the right to bear arms but because gun rights are a genuinely popular position.
I think this underrates the extent to which our robust protections feed back into popular sentiment, for better and for worse.
I agree with you that the codification of these things into law is likely to generate more popular sentiment for them, probably through status quo bias. I think they initially get codified into Supreme Court jurisprudence because they were on the path of political consensus, and I think you could get similar status quo gains by encoding those goals legislatively which would also have the upside of more democratic legitimacy and be a bit more durable plus it wouldn't have all the other downsides of extensive judicial review.
I am not sure what I said that you think is not true. It seems you and I agree a lot of people in the US support the right to gun ownership.
I think I'm right that America's outlier status on guns is not the result of the Supreme Court. The Supreme Court did not codify the individual right to bear arms until 2008, at which point America already had a strong gun rights culture. Your comment demonstrates this in that in your short history of gun rights regulation, you never mentioned the Supreme Court.
I recognize that the general opinion on gun regulation has changed over time.
I make $10,000 less than the US mean, and my job is adjacent to adult education, so will be showing this article to my boss. Thanks, Matt!
Slow Boring -- News You Can Use!
Matt gets very close to making this point, but it seems to me that the collapse of the USSR was both a collapse of communism and a collapse of imperialism. The Bolsheviks took over an empire and proceeded to continue to run it, but with their communist ideals. But the second half of the 20th century saw both of these systems as unworkable, with colonies from the British, the French, and others becoming independent, and other communist states, like China, enact market oriented reforms. It was pretty spectacular to see this all collapse for the USSR at once in 1991, but there could have been moments in which either one of the two could have fallen apart.
A partial collapse of imperialism, perhaps. I dimly get the impression that Americans don't really have a working concept of the idea of a central city like Moscow or London. A political-economic-cultural capital that dictates all, sucks in resources and wealth and ambition from around it and, especially in Moscow's case, is culturally and even ethnically distinct from its fiefdoms. New York has hints of some of this, but you can imagine the United States without New York.
A metropole, perhaps?
This is exactly right. The USSR had 15 republics because that’s the way the Communists won the Russian Civil War. Also, Estonian communists saved Lenin’s bacon and he was actually anti-imperialist and wanted every country to join the USSR. Stalin is a different matter. Matt also is not challenging Russian nationalism but Russian imperialism. Russian nationalists don’t want to reabsorb the ex-Soviet states because then there would be too many Muslims and Buddhists. Like most right-wing nationalists, they believe in national essences and don’t want those essences polluted.
“ Narrowly, no. HUD Secretary does not seem like a fun job to me, and I don’t want the pay cut.”
Pay cut??
The Constitution grants the President nearly unchecked pardon powers. And the Supremes just invented a new doctrine of presidential immunity from prosecution (offer good only for Republican presidents).
Combine these with the other right-wing fiction of the “unitary executive,” and this means immunity from prosecution for all members of a Republican administration.
Whoever the next HUD secretary is, they are going to be rolling in bribes, and taking a cut of every construction project across the country. They’re going to become very, very wealthy.
It could be you, Matt.
Well the immunity isn’t derivative. And the real risk is being prosecuted after Trump is no longer in a position to pardon.
Are we sure the immunity isn't derivative? One of my first thoughts when I heard about the decision was that it could be derivative. How can a thing be illegal if the order to do it is legal. As to the pardon power, a President can simply issue a pardon at the end of their term for any acts committed while they were in office.
I think after 2024 we definitely need to think about age limits on the presidency. Partisan politics in polarized America values brand names and people who make partisan voters feel good rather than folks who can run the country. And that means elderly candidates who could endanger the world. It's bad.
I suspect after this election you’ll see questions of age become a lot more salient to voters. If you repeated Diane Feinstein’s last election but in 2026 I think she would lose.
I doubt it. In the case of Feinstein she was likely “fine” in 2018, if maybe having the odd senior moment. But 5 years is a long time as these things go and you can witness a tremendous amount of decline over 5 years. Voters therefore would have to look not at the candidate currently in front of them but how they will be in X years. And they just aren’t going to do that.
I had voted for her expecting that she'd not finish out her term. Seniority is important in the Senate and it's not like she would be replaced by a Republican. And there wasn't much public evidence that she was in decline.
The big lesson I learned is how stubbornness could persist even with ZERO situational stakes. Biden's defiance was just pattern recognition after watching RBG and Feinstein.
Although arguably they are thinking about that to some extent with Biden (how bad will this be at age 86?).
I feel like the 2nd Reagan administration kind of deluded us regarding how important a very old President having really is. His second term I think is seen as a success given it coincided with the end of the Cold War and general economic prosperity (the 1987 stock market crash seemed dramatic at the time, but in retrospect didn't have much far-reaching impact. Recession doesn't hit until 4 years later; after Reagan left office). And yet it seems pretty likely that Reagan was starting to suffer from Alzheimer's as early as the 1984 election. https://www.psychologytoday.com/us/blog/side-effects/201101/when-did-reagans-first-signs-alzheimers-appear
Bear in mind Biden is a lot farther gone than 1988 Reagan.
I'm not sure how likely that really is. Reagan died in 2004.
Alzheimer's Assn says: "On average, a person with Alzheimer's lives four to eight years after diagnosis, but can live as long as 20 years, depending on other factors."
It's pretty unlikely although not completely impossible that Reagan happened to be at the very high end of that range. To be fair, usually you get Alzheimer's a bit before diagnosis. I still think it's unlikely.
I'm skeptical. I'm going to vote for the elder abuse candidate, as is most everyone else here.
Increasingly it’s seeming like no one will get to! 🤞
That would be nice. I don't feel good about it.
I wrote an amendment a few months back as an exercise. Feel free to eviscerate my non lawyerly prose and poor grasp of Con Law:
1) No person over the age of 76 shall be elected to nor succceed to the offices of President or Vice President.
2) No person over the age of 79 shall be elected to the Senate. No person over the age of 83 shall be elected to the House of Representatives.
3) This article shall take effect two years after its ratification.
4) Persons serving as President, Vice President, or as members of Congress when this article takes effect may complete the current term without regard to age.
5) Congress shall have the power to enforce this article and regulate the presidential succession by appropriate legislation.
6) This article must be ratified before January 1, 2035.
The irony is outside of Trump (again), it's extremely unlikely to get a Trump or Biden-aged Presidenial candidate anytime soon for the next decade or so. Both the Republican and Democratic benches, whatever you think of their personal views on stuff, full of normal-aged (40 to 60-something) politicians who are likely to run for President.
The current gentocracy is mostly a result of Trump winning in '16, and a bunch of older politicians deciding to hang on or get involved in politics again as a result.
What's the cutoff? And does it apply only to a limit when taking office or would someone have to resign partway through? LBJ died at 64, seems like Reagan was fine enough at 77 when he left office but had clear signs of Alzheimer's by age 81, Biden is starting to fall apart at the same age, Bernie Sanders (seems fine) is 82. Would the rule be that you can't take office if you're 75 or older?
I am actually an ass and would cut it at 61 at inauguration, because I actually think this is a job for people in their 40's. But any cutoff is fine.
"For judges, there should be either term limits or age limits. For elected officials, I have mixed feelings."
For judges, I favour a mixture of term and age limits. If you have a pure age limit, then there is going to be an even stronger incentive to the appointers to choose the youngest judges possible, which means judges getting promoted faster than their experience. If you have a pure term limit, then you don't remove the problem of a senile judge staying in place until they reach the limit.
I'd favour an age limit of 80 (not because no-one can serve after 80, but because it's impossible to predict who can and who can't at the time you are appointing) and then a term limit of 20 years on the Supreme Court and longer on lower courts (perhaps 25-45, so judges are typically appointed at 35-55). Getting SCOTUS judges appointed in their 50s and increasing the turnover would both be good things for the US. The sense at present that the Conservative majority is going to last for many decades is not a good one; it means that instead of just trying to win elections to replace judges, the left is increasingly looking for more radical options (expanding the court, impeaching judges, etc).
For elected officials, I'd be OK with a law saying that no-one can be elected to a term that will end after their 80th birthday. It would remove the worst cases (Feinstein, Helms, etc) without having much other impact.
Term limits are almost always bad in legislatures (I mean, if someone wants to have 30 or 40 year limits, then I'm fine with kicking AOC out in her sixties - the combination of a minimum and a maximum age would mean a 55 year limit anyway) because new members turn to people with experience to learn how things work, and if that isn't experienced members, it ends up being lobbyists, which is worse. For chief executives, I'm inclined to think that some limit is probably a good thing, and I'd not be much inclined to change the existing term limit for the President.
I still remain firm with one single 18 year term limit on SCOTUS, with each seat rotating on a two year basis. Make control of the Court directly up to who wins the presidency, and not up to the whim of each justice's desire and/or the Grim Reaper.
How would you avoid the issue of the presidency and Senate being controlled by different parties? Would the president directly appoint justices with no Senate review?
Well, we're already in constitutional amendment territory, so if I had that kind of power I'd just cut the Senate out of the process.
The president could just appoint anyone for an 18 year term?
Having no advise & consent check on the President's power to choose SCOTUS members seems bad unless there are a bunch of other court reforms you're going to implement as well.
My ideal system is that every 2 years, the most senior justice on the Court is replaced. The president, House, and Senate must all agree on a replacement (via majority vote in the Congressional chambers), and if there is agreement then that's the new justice. If there is no agreement and/or one of the chambers fails to hold a vote, the 9 sitting members of the Court have 2 weeks to *unanimously* agree on and rank a list of 5 candidates. The president then has 2 weeks to choose from that list, and if they do not do so, the top-ranked candidate becomes the new justice. The same process occurs if there's an unexpected vacancy on the Court.
This ensures that if a party has a trifecta, implying broad political legitimacy, then there can be a partisan/ideological appointment; otherwise, the requirement for unanimity among the sitting Justices maintains the status quo.
But the other problem is having seats left vacant for a long time until the President and Senate are held by the same parties. Perhaps that's a feature instead of a bug for some.
You already said you were talking about an amendment. Provide that Senate has to hold a vote within 60 days or the nomination automatically takes effect; if the Senate rejects three consecutive nominees, the President can resubmit any of the rejected nominees to the House with a vote to be held within 60 days or the nomination automatically takes effect; if the House rejects all three nominees, the President can resubmit any of the rejected nominees to the governors of the states, with each governor to send their vote within 60 days or their vote is automatically deemed to be an "Approved"; if a majority of governors does not approve any of the nominees, then the seat remains vacant.
I'm a big fan of the proposal by National Constitution Center. See Amendment XXXI
https://constitutioncenter.org/media/files/The_Proposed_Amendments_AMENDMENTS.pdf
Rule of 80, but for judges: When age plus years of service equals 80, you’re out.
Big problem here is that predictable court appointments will essentially turn the SCOTUS picks into part of the presidential ticket and that's a very bad dynamic that will make the court so much worse. Had Trump picked his court appointees during his campaign -- shudder.
I don't necessarily dislike the idea of regular changes but you need a mechanism to prevent that electoral incentive creep. Right now it's largely the fact that it's kinda gross to speculate about someone dying or getting ill plus it being unpredictable.
Now maybe if you made the appointment to the court more indirect you could avoid that. Say maybe the justice gets picked by a panel with the president getting to appoint 8/20 seats the house getting (via proportional representation) 10/20 and the other two picked by all current and retired justices. But that gets complicated and who knows how it works out.
Ultimately, I think our current system isn't half bad. In the grand scheme of things the court very rarely frustrates the strong wishes of a large majority (for good or ill eg wrt japanese internment). It mostly makes calls on the margin which is why it's so frustrating for the left at the moment -- the country is very divided and very closely balanced so it can substantially frustrate a 52% majority.
But that seems well within the kind of bounds that other aspects of the political process like the electoral college or FPTP change who is on top and in the long run the court seems no more likely to do this in a bad way than a good way. Maybe it's generally a small c conservative institution but given the history of the 20th century being more worried about the harms of quick changes than harms of going slow doesn't seem unreasonable.
Sure, I'm not to two years.
And I do like the two year rotation; each Congressional election picks one Justice.
But, actually, I'd prefer a court with an even number who can split equally and be unable to make their minds up and have to leave a circuit-split in place. I think that's better than marginal 5-4 decisions being able to create massive changes in governance. You don't risk swinging back and forth to anything like the same degree.
Disagree, this creates perverse incentives to venue shop on the lower courts.
An actual structured process for this would probably improve matters, yeah. Knowing that each presidential term will involve the replacement of two judges kinda makes the stakes clear. Whoever wrote this dumb thing seemed to think it would be cool to just let it be free-wheeling and thought this would never be a point of contention.
The founders were brilliant humans, but they were still fallible humans that couldn't foresee everything, and also denied to foresee that they would succumb to the same human traits they tried to avoid.
Three years works for me. Every third year, one tenth of the circuit court judges (assigned randomly to ten different classes) are elevated to serve as the Supreme Court.
Incidentally, if anyone wants a boring technical constitutional amendment that no-one would want to spare time for: a bootstrapping process for the government. How do you recreate Constitutional Government if all the constitutional officers cease to exist?
The answer is: the Governors of the States appoint a bunch of Senators, they elect a President Pro Tempore who immediately becomes POTUS. You can't have a VP until the House is back, and that can't come back until there have been special elections, but the new POTUS can nominate a Supreme Court and a Cabinet and the Senate can ratify. You now have three branches again, but you can't pass any legislation until you have a House again, and that requires special elections. Once you do have a House, they elect a Speaker, ratify a VP and get on with emergency legislation.
I can't say I'm a huge fan of that. It might be a good idea to have a think about that in advance of the crisis.
The fundamental issue with all discussions of if Trump is actually an existential threat to democracy is there is no way to communicate the affirmative to the masses without a noteworthy portion of the population reading it as calling him a turbulent priest. If you are a mentally unbalanced individual who believes that Trump is going to end democracy and that you are a member of a group that will be killed in a Trump presidency then anything becomes acceptable to stop him especially in a society that glamorises freedom fighters. We as rational actors might be able to go "Violence is counterproductive" or "While Trump is a risk the risk is still relatively small but any risk to democracy of such magnitude should be avoided" but mass media campaigns will not target these people. The other side of this then becomes that Trump supporters will see the campaigns as calling him a Turbulent Priest and react accordingly, we probably got very lucky that a) the shot missed and b) it looks to be nihilistic suicide by cop rather than a political assassination.
I really don't know what the right answer is going by the very careful and measured response in this mailbag I think you aren't sure either. Trump undermines American democracy, has policies that undermine liberal democracy globally but on balance would probably still peacefully transfer power in 4 years time (assuming he doesn't die). Finding the right tone is balanced.
Sometimes I do wonder though if the "threat to democracy" and "genocidal project 2025" lines are counterproductive for moderate swing voters, does the average American who we need to either vote Biden or stay home in November actually see the lines as legitimate or as desperate histrionics. Some of the more extreme lines (e.g. what you see on the front page of Reddit) feel like histrionics and even as someone who wants Biden to win finds them offputting.
I think the sentiment behind this sort of aversion to political violence is noble, but I don't really understand the distinction you're trying to draw. Doesn't being an existential threat to democracy necessarily make someone a turbulent priest? I mean, wasn't the 20 July plot to assassinate Hitler just moral and correct on the merits?
Yeah, if you live in a democracy and accept that the process that created it was good, you’ve already implicitly accepted that at least the implied threat of political violence is morally acceptable under at least some circumstances. We actually all agree about this; the question is where we draw the line.
It was acceptable in 1776 because there wasn't any other way of changing the government. In a democracy, there are other ways.
I'm not completely sure myself to be honest. The typical response to the problem of "if this is as big a problem as you say then you should support political violence" in this sort of circle is that even if you take all of the claims 100% seriously political violence is counterproductive and they would claim that things like the various Hitler plots are exceptions that prove the rule as they were effectively carefully prepared coup attempts rather than simply hoping that killing him would make the bad situation go away.
On the larger scale though I think Trump occupies that uneasy space where he's probably not (<10%) going to cause the end of democracy and if he did try you would probably get A Very British Coup style palace coup ousting him but in the long term will erode democratic norms and institutions and lead to a future figure potentially being able to end democracy. In this area where the line should be drawn for where political violence becomes acceptable (obviously we as a society support political violence after some point) is very difficult to agree on. If a mentally unwell democrat supporter was to kill Trump tomorrow because they thought Trump was going to end democracy and genocide $group I think we'd all agree that the fallout would be worse for democracy in the US than if he wasn't killed due to the inevitable tit for tat, radicalisation of Trump supporters and potential normalisation of political violence.
But thats all based on the reality of what a Trump victory would look like, to go back to my opening sentence of the first comment you are basically right. If you think Trump is a legitimate existential threat to democracy and he is likely to win the election then calling him a turbulent priest would be morally justified. Although the kind of interests capable of amplifying such a message would be better served doing A Very British Coup and just conspiring with other powerful interests to have his position become untenable which throws a spanner in the works to the moral justification, ousting Trump peacefully is still non-democratic but better by every metric than hoping someone kills him.
Sorry if this is kind of a jumble of thoughts. As I have elaborated I don't personally think Trump is the level of threat where violence is justified, he dangerously erodes democratic norms but that can be reversed after the fact, the aftermath of a successful Trump assassination tomorrow probably cannot.
Thanks for the reply, this is a very sensitive issue, to say the least, and I don't have a fully worked out theory about it myself. But giving it a little more thought, I think I may be doing the mirror image of what pro-choice people do when they say that if pro-life people really believed that abortion is murder, they'd be fine with bombing Planned Parenthood offices. The response there is that if you're using violence to end something that is legal in your society, you're really talking about starting a civil war. And as bad as abortion is, civil war would very likely be worse. I think one could make a symmetrical argument that in a cosmic-justice sense it would be good for Trump to be killed, but no one could actually carry that out without doing more harm than good. Which isn't really much different from what you said. Anyway, the country would be a lot better off if we all had stronger norms against political violence and clearly and consistently condemned it every time.
Regarding the remarks about the courts, I don't think Matt could be more wrong -- and it's this kind of rhetoric that paves the way for Trump to ignore the court when he decides he doesn't like what it says.
Basically the only cases recently the Dems have lost which couldn't be overturned by statute are cases like Roe or Trump immunity and without a court there wouldn't be a limitation on state power preventing them from making abortion illegal. And since criminal cases must be heard by a court it's not clear how you prosecute a president federally without some court having final say.
Virtually all of the other big SCOTUS losses recently for the dems could be pretty easily overturned by legislation if not to the benefit of democrats -- Trump republicans aren't afraid to use the administrative state so we may end up being happy if it has less power. Loper Bright merely refused to defer to agencies **absent congressional direction** so congress could pass a law tomorrow saying to defer to them. Even the VRA preclerence being struck down was merely a requirement that congress actually engage in new fact finding about where it's necessary.
WTF, like how can democrats really think that it would be better if the last and final word was either the president or state courts given recent events. But for the supreme court Texas would be free to tell online content providers they had to show more conservative messages, not to mention overide federal immigration authority and arrest any woman who went out of state for an abortion.
Look, someone needs to make the call about the default and in our system the unfortunate truth is that it's basically the court that prevents all power from either devolving to states or accruing to the president.
"WTF, like how can democrats really think that it would be better if the last and final word was either the president or state courts given recent events."
Yeah, I just want to beat my head against the wall at various, "Get rid of SCOTUS" or "Get rid of all judicial review" proposals -- it's like, what do you fools imagine will happen in the absence of the Supreme Court? These decisions will all still need to be made somewhere! And pointing at foreign countries to say they don't have judicial review is no good because the vast majority of other democratic countries: (1) use some form of parliamentary system (so there generally speaking will be no split between the executive and the majority of the legislature) and/or (2) don't have a system of federalism where their administrative subdivisions have their own legal systems.
No. If you think for a second that Trump wouldn't defy the supreme court but for some policy wonks talking about how judicial review is bad, you are completely wrong. Trump has already called for the suspension of the constitution. He's already planning to purge people who are more loyal to our laws than to him. The only capacity in which SCOTUS mattered in project 2025 planning is that they are making sure to work within what SCOTUS already approves of to expand executive power an purge non-loyalists. Opposition to judicial review doesn't give him rhetorical cover and it doesn't make any part of his anti democracy machinations any easier.
If that talk doesn't matter why does it matter when election deniers spread their message? Either talk does or doesn't make a difference on the margin in terms of respect for the traditional institutions of government authority in this country.
I think that talk suggesting that it's ok to just ignore the results of elections is harmful on the margins and for the exact same reason accusing the court of being illegitimate is as well. And yes, at the margin people make calls based on their perception the public will support them and the more the public hears the other side calling an institution illegitimate the less likely they will be to feel they need to obey it.
I learned recently the depressing fact that the Soviet Union really didn't collapse because it reached some kind of tipping point of system failure, but rather, it fell because a faction (led by Gorbachev) came into power that was not willing to continue propping up the system with military force, because that was immoral. Similarly they were persuaded that the communist system was no longer working and they attempted to convert to a social democracy-type system. I suppose I find it depressing because I had assumed the fall of communism was "inevitable" in some world-historic sense, but really it was a stroke of fortune that "the right guy" was in charge at the right time.