Tuesday, March 27, 2012

Elsewhere: SCOTUS, Delegate Counts

At Post Partisan, I talked more about delegate counts, caucus states, and Romney's lock on the nomination.

For Greg, I did the old political scientist blogging standby: the "calm down, everyone" post. This time on the oral arguments with the Supremes today.

A couple of things about that...first of all, I haven't yet read the transcript or listened to anything. Don't think I needed to in order to write the post...I plan to at least read the thing, but I haven't yet. So keep that in mind. However, I do wonder a bit about reactions to these sorts of things in the age of twitter/cable news/blogs. Pack journalism, of course, began long before the instant news cycle. But it sure seems to me -- and I suppose this is hardly an original observation, but just what went through my mind today -- that twitter in particular can yield a very quick conventional wisdom.

Which sometimes can be just fine! But it's not especially well suited to things such as Supreme Court sessions, in which (1) the end may matter as much as the beginning, and (2) it's not all that clear how important any of it is (to the outcome) in the first place.


  1. Jonathan:

    I think there's a distinction to be drawn in regard to oral SCOTUS arguments. I don't buy into the idea that attorney performance matters much at all in affecting justices' vote, and so I don't think any perceived good or bad performance by the Solicitor General or by Clement matters much. On the other hand, I think oral arguments can give you a lot of info that reveals existing preferences of the justices, and therefore we can do some Baysian updating about our prior beleifs.

    And there, I think there's cause for liberal alarm. Nothing changed, but the new info flattens out our priors: the probability of ACA going down just skyrocketed. Or at least our assessment of the (fixed) probability just radically changed toward "struck down."


  2. I've been saying there's a strong possibility it'll be struck down by the Court for a long time now. You can see me here making the case early last year. I included this prediction as part of my semi-facetious doomsday scenario a few months ago.

    But since then, I've been listening closely to analysts who know a lot more than I do reassuring us that for the Court to strike down the entire law would be exceedingly unlikely, and that probably the mandate will survive anyway. More recently I've been hearing confident assurances that even some of the conservative justices besides Kennedy may uphold the law.

    Now, after just a day of oral arguments for the defense, suddenly the pundit class has done a 180 and come exactly to the position I've had all along, that the bill's in serious danger! Great way to make my day. (That's the main benefit of pessimism: even if things don't go the way you want them, at least you have the satisfaction of being able to say "Toldja so.") Why have I been so bearish about the bill's future in the Court? It's because I remember Bush v. Gore. Whenever the comparison is raised, the pundits and legal experts are quick to point out that this case is different, and a purely partisan decision would have more far-reaching judicial consequences this time.

    Well, that may be true, but it doesn't mean it won't happen. Here's how I parse it: When you ask, "Why would justices ignore legal precedent and even their very own past writings on the Commerce Clause just to effect a partisan outcome they favor?" the answer is the old, tried and true "Because they can." There is absolutely no accountability for Supreme Court justices. They can rule however the hell they like with absolutely no consequences to their careers. Now they're handed this golden opportunity to strike a devastating blow to the other party. You really think they'll just walk away? Are we really going to be that naive?

  3. Regardless of how the vote turns out, there's something sort of amazing about what's been reported from SCOTUS the past two days. Not the commerce clause or enumerated powers etc, that stuff's way above my head anyway. I'm just stupidly gobsmacked that this court might rule that an insurance scheme does not have the right to compel light users to subsidize heavy users. That seems about tantamount to saying that insurance, as an industry, has no right to exist.

    If the mandate is struck down, I'm gonna walk right down to my Sec. of State office and announce I'm cancelling my car insurance. I'm a defensive driver, what right do they have to force me to carry it? Then I'm going to tear up my homeowners policy, and if the county doesn't like that, screw them, my kids don't play with matches, I'm sure my house is fine. What right do they have to say otherwise?

    Not sure if anyone recalls the ridiculous "intellectuals" on the island of Laputa in Gulliver's Travels, but the conservative justices sounded a bit like them this week. (Hmmmmm...is it really regulating interstate commerce if the individual doesn't wish to participate? - Tell that to your employer: if your family consumes very little HC in a given year, do you get a break on your future cost-sharing? Of course not).

    Words fail - but steeped in arcana, these guys might actually find that the constitution prohibits insurance. Framers, you must have been idiots.

    1. @CSH -- Laputa's the floating island of mathematicians, right? -- but late eighteenth-century novels positively overflow with satire of useless philosophers. There's some funny stuff in Johnson's Rasselas -- "be not too hasty to trust or to admire the teachers of morality. They discourse like angels, but they live like men" and "The prince soon found that this was one of the sages whom he understood less as he heard him longer" -- the latter of a man who answers every question by repeating his earlier contention at greater length an in more elaborate language. The ones in Tom Jones are not as funny as Fielding maybe thought they were, but since the book is largely an argument for character over wisdom and sentimental over intellectual perfections, they're structurally important. Candide, idk, Voltaire is Voltaire, Candide is Candide. Diderot is in a different category: because he takes the philosophers he mocks seriously, he convicts them generally of error rather than malicious self-inflation. Of course, going back to the seventeenth century, Molière's doctor who explains very seriously that a certain potion will put you to sleep "by virtue of its dormitive property" is one of the all-time classics ... and perhaps not coincidentally, clearly extends to any professionals who've forgotten how to talk, or even that it's worth talking, to people outside their circle of jargon .....

    2. @classicist - yes, indeed re: Laputa. I'm no literary scholar, but IIRC, the assorted intellectuals on that island explored things for their own sake, thoroughly disconnected from any applicability; the one I remember is the guys studying the consequences of smacking themselves with full pig bladders. So, to some extent, it was with the conservative Supremes yesterday.

      That said, this morning I'm also thinking how odd it was that Solicitor General Verrilli apparently had no answer for Kennedy's question about why this mandate would not obviously be expanded. What, Kennedy wanted to know, was the limiting factor in this case? Said diffently, and borrowing from Scalia, why are light users forced to subsidize heavy users differently in an insurance market than in the broccoli market? Apparently, Verrilli didn't know!

      That strikes me as really weird, and it calls to mind the anonymous commenter here, the one who used to call the ACA an "own goal" from Obama, and posit that Obama wanted it overturned before the election, due to its toxicity. Like everyone else, I took those comments with some amusement, but thinking about the obvious things Verrilli apparently wasn't ready for yesterday, I'm thinking now that Anonymous may have been onto something.

      One other thing: I really like those quotes from Johnson. I'm a big fan of the late 18th century and wish I knew more about it. The west is 5 centuries into modernity, kickstarted by Luther's posting of the 95 theses on the Castle Church door. Those five centuries can be roughly split in half; the first half characterized by widespread destructive war between Catholics and Protestants, and the second half by 'enlightened' politically secular states. The fulcrum between the two halves of modernity is the late 18th century; it does seem to me that a lot of the interesting stuff in history happened, or was written, then.

    3. I try not to judge people who are prone to the heartbreak of brainfreeze.........

      I've been on a little bit of an 18c kick myself, though far from expert. (spending a lot of time on the seventeenth century in my class this term though!) Number one recommendation probably Jacques the Fatalist by Diderot (which I bought in the Raleigh-Durham airport, back when spatial location was important and limiting) though I haven't read it in a long time. But in general I'm fascinated by the moralism of the era. Gothic romance Mysteries of Udolpho is just as much an argument about the superiority of sentimental response and the cultivation of character to intellectual training as picaresque semi-satire Tom Jones, really fascinating to look at next to what Hume and Smith had been writing on the subject just a few years earlier. Writers as different as Richardson and de Sade struggling with the same questions about divine providence and interference as the scientists and philosopher trying to set out a purely mechanistic worldview. A great age for polymaths of all kinds -- Goethe the poet, novelist, aesthetic theorist, and optical scientist, Emilie du Chatelet somehow translating both the Principia Mathematica and the Fable of the Bees besides her own scientific and political writings, and of course the depth of the American political bench at that time is mind-boggling.

      (ha, no insights from me, just lists!)

    4. Lists are good! Thanks for the suggestions. In the sense Dale Carnegie meant everyone does, I regard myself a person of high-quality interpretation :), but given the choice of insights from an established expert and an anonymous dude on the intertubes, I can't imagine who would prefer the latter, my inflated self-regard notwithstanding.

    5. Ah now I'm all confused! Dale Carnegie, like the self-help guy? But Idk what his sense of "a person of high-quality interpretation" is. Also am I the anonymous dude on the Internet? who is the expert?

      ......see how easy it is to get totally flustered by one thing put in a slightly unfamiliar way? good thing nothing hangs on what I say, in any context, ever.

    6. Anonymous dude = me. Experts = the ones you linked. Dale Carnegie = big insight was that everyone thinks they're really smart; its a good strategy to treat them as if they're right.

      IOW, ask me and I'll tell you that my insights are as good as, or better than, those of a conventionally-recognized wise person. Problem (as Dale Carnegie famously noted) is that just about everyone would tell you the same thing about themselves too.

    7. Haha, I am a philosophy teacher -- I am supposed to be teaching students how to think -- and I would not tell you that! (I guess it would depend on the wise person.) But that is partly because I would rather be patronized as "caring" and "motherly" (!) in my student evaluations than insulted as "a know-it-all bitch." There's a lot of research on self-esteem and self-assessment that suggests this is a highly culturally specific effect, too -- on a given test 70% of American kids will think they're in the top half while 70% of Korean kids will expect to be in the bottom half. Oh midcentury American white men and their generalizations over < strike >midcentury American white men< /strike > everyone.

      [Btw, you should make Jeff talk about the eighteenth century some time -- the chapter of his book on George Washington is super interesting. The preface about eighteenth-century British political culture, too.]

    8. "If the mandate is struck down, I'm gonna walk right down to my Sec. of State office and announce I'm cancelling my car insurance."

      First of all, it's the state requiring auto insurance, not the federal government. Second, auto insurance does not insure you it insures that anyone harmed by you in the course of you operating a motor vehicle will be compensated and made whole. Third, the state does not require that insurance arbitrarily, it requires it in exchange for your decision to engage in the potentially dangerous activity of operating a motor vehicle.

      There is essentially no similarity between a state mandate for auto insurance and a federal mandate for health insurance.

  4. Just following on CSH's comment on the solicitor general. Yesterday on NPR they had John Suthers, the Colorado attorney general and one of the challengers of the ACA, and Walter Dellinger, who had been in the Clinton administration Justice Department and had written an amicus brief on this case on behalf of congressional Democrats. Suthers also commented on Verilli's inability to articulate a limiting principle as well as Dellinger had just done on the radio. (Let's hope it got into the brief. The Monkey Cage is having a debate on how much the oral arguments, per se, matter in deciding cases.)

    Personally, I can't help thinking that from 1940 to 1973, the government regularly dragged young men from their homes and sent them to Guadalcanal, Inchon, or Da Nang to get killed--or threw them in jail if they refused to go. Whatever your opinion of conscription, I find it curious that the system's most vocal defenders are now pretty much the same sort of people who are horrified at the way a health-insurance mandate is going to fundamentally transform the relationship between government and citizen.


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