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Yes, Supreme Court Justices Vote Strategically, And No, There’s Nothing Wrong With That

[ 106 ] March 19, 2014 |

This thread had a discussion of the the Supreme Court damaging the Medicaid funding mechanism in Sebelius,leaving to the inevitable argument that it was a 7-2 vote and hence Both Sides Do It and so on. My position continues to be that had Breyer or Kagan been the median vote on the Supreme Court there’s a roughly 100% chance that the Medicaid expansion would have been untouched. Equally inevitably, this leads to people expressing shock at the very idea that a Supreme Court justice’s vote could ever represent something other than their sincere, optimal preference. It’s sort of like the argument that if Obama puts Chained CPI in his budget with conditions that make it unpassable or a Republican proposes health care reform that will vanish the second a Republican takes the White House, we have no choice but to assume that this reflects their sincere preferences. Only in the case of elected politicians, this argument is virtually always being made in bad faith; nobody really believes it (almost everybody who assumed that Chained CPI in his budget reflected Obama’s passionate commitment to killing Social Security also assumes that Obama spent most of his first term secretly stopping Congress from adopting legislation he publicly supported.) When it comes to the Supreme Court, though, I think many people really do have a weirdly naive belief that justices rarely do and never should vote strategically. So let’s explain again why this assumption is transparently wrong empirically and unpersuasive normatively.

The political science literature is unambiguous in demonstrating the ubiquity of strategic voting. Epstein and Knight is a superb primer, although nonspecialists may want to start with Walter Murphy’s Elements of Judicial Strategy; the future bestselling novelist wrote very well and it’s an extremely smart and elegantly argued text. In addition to the examples in the first link, there’s an excellent recent example: Northwest Austin. John Roberts’s faux outrage notwithstanding, it should have been obvious what was going on in Northwest Austin at the time: Ginsburg, Breyer, Souter and Stevens joined the Court’s opinion not because they were persuaded by Roberts’s bare assertion that the Constitution protects an extratextual Equal Sovereign Dignitude of the states, but because they preferred an epically specious opinion upholding the Voting Rights Act to an epically specious opinion that went ahead and gutted it, and if they didn’t provide Roberts with the appearance of consensus they substantially risked the latter in 2009. Unless you think that Ginsburg and Breyer radically revised their views in the intervening four years, the former’s dissent in Shelby County settles the question. But Ginsburg and Breyer weren’t lying or acting in bad faith in Northwest Austin (although their strategic judgment might have been wrong); voting for the viable position closest to your own is a perfectly ordinary and defensible practice.  What matters is that the Voting Rights Act survives, perhaps until there can be a different median vote on the Court.  Getting the satisfaction of having spoken your mind isn’t much consolation to everyone whose vote would be suppressed.

Indeed, you don’t really need a lot of legal scholars digging through old conference votes and memos or using fancy game theory to see that strategic voting is inevitable in any court where five votes are necessary to get a majority. Just compare, say, a typical Thomas solo dissent with a typical Thomas majority opinion; the latter will be as a rule much blander and less idiosyncratic, because they have to represent what’s minimally acceptable to every member of the majority coalition. We know Brennan wrote an opinion subjecting gender classifications to intermediate scrutiny (which could command a majority) although his preferred position was strict scrutiny (which couldn’t) because we have the relevant memos, but it should be obvious that this kind of thing is going to happen all the time.

Which brings us back to Sebelius. On the Medicaid expansion, there were three options on the table:

  • (ArtI) The Spending Clause in Article I means what it says.  There is no precedent for striking down an exercise of conditional federal grants given to states, and this modification to Medicaid is no less constitutional than any of the previous 50 or so.
  • (.5NeoCon) The half-neoconfederate: Congress cannot make Medicaid funding contingent on the accepting the new expansion, even though it would be unquestionably constitutional for Congress to create the new Medicaid from scratch on one hand or to repeal it entirely on the other, because…look, John Calhoun!  Equal Sovereign Dignitude! The Cornhusker Kickback!  Congress, however, can offer the new money as long as it doesn’t threaten to withhold the old money.
  • (NeoCon) The full neoconfederate: All of the illogical states’ “rights” gibberish of .5NeoCon, only the expansion is struck down entirely.

Everything about Breyer’s history suggests that his ideal preference ordering is ArtI>.5NeoCon>NeoCon.  If you can name one Supreme Court justice in history with a broader conception of federal authority, that’s one more than me.  With Kagan, we have less history to go on, but she’s a typical Democratic nominee and that means that any preference ordering but ArtI>.5NeoCon>NeoCon would be enormously unusual.  (Members of team Democrat potentially disagree about many issues, but national power isn’t one of them in 2014.)  The oral arguments confirmed this, with both Breyer and Kagan expressing notable hostility to the neoconfederate spending power arguments (not surprisingly, since they were an afterthought even to most people who took the argument that the mandate was unconstitutional seriously.)  Taken literally, however, their votes would indicate a preference ordering of .5NeoCon>ArtI>NecCon.  Did Breyer radically revise his views? Was Kagan a disastrous pick after all?

Almost certainly not.  The only two relevant options — the only positions with a chance of getting 5 votes — were .5NeoCon and NeoCon.  Particularly in a context in which Roberts initially voted to strike down the ACA in its entirety, by far the most plausible explanation is that Breyer (who, you’ll remember, was part of a doomed effort to salvage the Florida recounts by trying to form a consensus on 14th Amendment violations with an actual remedy) and Kagan wanted to add their superfluous votes to ensure Roberts wouldn’t move from the .5NeoCon to the NeoCon camp.   Can I prove to an absolute certainty that Breyer hasn’t radically changed the views he’s consistently held for decades and won’t suddenly start casting votes placing arbitrary limits on the congressional spending power?  No, but the overwhelming likelihood is that his vote was anomalous.  And, certainly, the only thing we can safely infer from the Breyer and Kagan votes is that they preferred .5NeoCon to NeoCon.

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  1. Anderson says:

    but it’s insincEEEEEEEEEEEEErre …..

    • Aaron says:

      If the vote was strategic, in a sense that would highlight how risible the decision was. You would expect a justice who is voting strategically to nonetheless concur with the most face-saving rationale for why he’s on what many will see as the “wrong side”, as Roberts attempted with the “it’s just a tax” analysis of the mandate.

  2. Ken Houghton says:

    “nonspecialists may want to start with Walter Murphy’s Elements of Judicial Strategy; the future bestselling novelist…”

    Are you certain he wasn’t this Walter Murphy?

  3. junker says:

    One of the weirdest things to emerge from comments here over the last month or two is the motion that political figures never lie or bluff, and that stated views are always one hundred percent honest representations. I have no idea where that is coming from.

    • Scott Lemieux says:

      As I said, in the case of elected officials I really doubt that anybody believes it; it’s just pure expedience. I think the idea that appellate judges always have to be sincere has a little more currency. (Although in Dilan’s case, states’ rights are one of the conservative views he thinks makes you a Real Leftist, and directed against the hated ACA all the better — I suspect his take on Breyer is more a hope than a prediction.)

      • Dilan Esper says:

        I actually have no fully formed opinion on whether conditional spending violates the Constitution. And I think it is very different from other federal power issues, which is why “Breyer loves federal power” is a dumb non-sequitur.

        As for Shelby County, you are saying my logic means the liberals must have agreed with one small passage not necessary to the result in the earlier case. But that’s not what I said. I said we should presume justices agree with HOLDINGS they sign onto. Does Thomas disagree with any of those holdings he signed onto?

        Now strategic voting is of course always possible, but the internal deliberations of this case leaked. And nobody reported strategic voting.

        You WANT to believe there was strategic voting, but you have zero actual evidence of it.

        • mpowell says:

          Actually he presented quite a lot of evidence. If you can’t see that, well, I’m not sure why Scott would bother responding further.

          • Dilan Esper says:

            Evidence is different from conjecture. Remember, Scott and I are both lawyers. We know the difference.

            • Dilan Esper says:

              To explain this a bit:

              A direct piece of evidence that Breyer voted strategically would be a statement from him, or from someone with knowledge of his decisionmaking process (such as a leak from a clerk) that he did it.

              A circumstantial piece of evidence would be some sort of writing where Breyer said that he thought that the spending power permitted Congress to place any conditions on spending it wished to, no matter how coercive they might be in practice on the states.

              Scott has neither of those things.

              What he has is:

              1. Scholarship that Supreme Court justices vote strategically. But nobody disputes this. I am sure Scott and I completely agree about the veracity of the stories about Warren Burger, for instance. But those stories were supported by evidence, in the form of statements from clerks and other justices and people in the know. In other words, we presume that Burger voted the way he believed and signed opinions when he agreed with the holdings, but since we have good evidence that he didn’t, the presumption is overcome.

              2. The behavior of liberal justices in a voting rights case. But that involved a short dictum in a long opinion, not a central holding of the case. Even if we could assume that strategic “voting” in one case proves strategic voting in another, that wasn’t even strategic voting. That was strategically signing onto an opinion with one passage they may have disagreed with.

              • rea says:

                those stories were supported by evidence, in the form of statements from clerks and other justices and people in the know.

                Those stories, of course, came out many years after the fact.

                • Dilan Esper says:

                  True. But the court was more leak proof back then. There was nothing comparable to huge leaks of internal deliberations in NFIB v. Sibelius.

                  At any rate, if actual evidence comes out supporting Scott’s position, I will concede he was right. As of now, though, it is total conjecture.

            • tip says:

              Is Scott a lawyer?

        • Scott Lemieux says:

          And I think it is very different from other federal power issues, which is why “Breyer loves federal power” is a dumb non-sequitur.

          They’re really not. Conditional spending is absolutely central to the powers of the modern federal state, and Breyer has always shown as much deference to it as any justice in history. Name me a single liberal who thought at any time that the Medicaid expansion was unconstitutional before Kagan and Breyer after oral argument.


          Now strategic voting is of course always possible, but the internal deliberations of this case leaked. And nobody reported strategic voting.

          Completely irrelevant for the reasons cited by me and not rebutted by you. They could have voted strategically without switching votes, so there’s nothing to “leak.”

          You WANT to believe there was strategic voting, but you have zero actual evidence of it.

          Except for all of Breyer’s previous jurisprudence, and his questioning at oral argument. Wait, that is evidence!


          Breyer said that he thought that the spending power permitted Congress to place any conditions on spending it wished to, no matter how coercive they might be in practice on the states.

          To use one of Dilan’s poker analogies, what we have here is a tell. Again, his assessment of Breyer is more hope than prediction. Fortunately, his hope that Democratic-appointed justices will start casting decisive votes to arbitrarily limit the federal spending power is almost certainly unfounded.

          Does Thomas disagree with any of those holdings he signed onto?

          And, indeed, I’m confident that Breyer and Kagan sincerely prefer the half-neoconfederate position that will probably allow the Medicaid expansion to apply to the vast majority of states eventually to the full neoconfederate position that would have killed it in all 50 for the foreseeable future, the only thing that can be reasonably inferred from their votes here.

          • Bijan Parsia says:

            It’s worth noting that Dilan’s original move is that if you believe that Kagan and Bryer engaged in strategic voting then you believe they are liars:

            You are basically calling 2 Supreme Court justices liars.

            I am simply saying they did what they said they did.

            I guess this was to heighten the wrong? Scott isn’t merely speculating without evidence but engaged in slander?

            I think this is worth noting because this is a bad place to start. Dilan’s complaints about snark and people hating him really have quite a bit less bite (not that they had much bite to begin with) if you see how he initiates this discussion.

            Unless he thinks that strategic voting is lying. Which means either such lying is no big deal or he must condemn strategic voting.

    • sharculese says:

      I actually find it even weirder when applied to SCOTUS justices than politicians. The idea that 9 members of the elite entrusted with enormous power and virtually no accountability wouldn’t devise their own personal rubric to vote casting, one that doesn’t always conform to a pure principled analysis of what the law is or ought to just is just foreign to me.

    • joe from Lowell says:

      I have no idea where that is coming from.

      Necessity.

      If you don’t postulate that, you can’t get to the desired conclusion.

      Nobody, and I mean nobody, who was making an honest effort to work through this from evidence to conclusion included an assumption of politicians’ forthrightness in their reasoning.

  4. LeeEsq says:

    We know that lots of people do not like that politics is that art of the compromise and horse-trade, especially in the American system with all its veto points. Many people of all ideologies want full proper ideological bills rather than something thats a bit of this or that. Thats why so many people would prefer Obama go for a doomed single-payer bill than the actually could be passed ACA. On the right, the hatred of comrpomise and horse trading usually takes the form of anger at pork and earmarks because they represents carrots in order to get people to make difficult votes rather than vote for a purely ideological conservative bill.

    It really shouldn’t surprise us that lots of people are going to apply the same hatred of compromise to Supreme Court decisions. The four liberal and moderate judges wanted the hold that the ACA as constitutional. They needed one conservative vote do meet this goal. By letting Roberts write the decision and compromising on the reasoning behind the affirmation, they compromised and for many people thats bad.

    • Scott Lemieux says:

      Thats why so many people would prefer Obama go for a doomed single-payer bill than the actually could be passed ACA.

      Doomed? If a label president is behind a record bill he can ram it RIGHT DOWN THEIR THROATS.

      • LeeEsq says:

        I’ll take suicide by legislation for 100, Alex.

      • liberalrob says:

        Doomed? If a president is behind a bill he can ram it RIGHT DOWN THEIR THROATS.

        I don’t think many people actually believe that, at least not in the way you mean. I know I don’t. But I do think it’s poor strategy to start a negotiation from a compromised position.

        As far as the SC and “strategic voting,” again it is reasonable to expect it goes on but that doesn’t mean it’s a good thing or that “nothing’s wrong with it.” Your argument is that if Breyer and Kagan hadn’t gone along, Roberts would have gone for the harsher “full NeoCon” smackdown. Maybe he would have, and the Medicaid expansion would have been killed outright nationwide instead of just being crippled as it is now by the retrograde ideologies of the governors and legislatures of a few states. What we can’t say conclusively is what would have happened then: would the nation have just shrugged its shoulders, sat by and allowed that to happen? Or would that have been the straw that finally broke the camel’s back, and caused the groundswell of dissension and activism that have stubbornly refused to happen over the past 30 years of erosion of our rights and economic opportunity? We’ll never know now…and now we have a 7-2 decision that establishes a precedent that Congress in some instances does not exercise supremacy over the states. Will states be allowed to refuse FEMA funds for disaster relief if some insane governor decides he doesn’t want them, or EPA Superfund money for cleaning up environmental damage, or who knows what other instances where federal money is provided for a purpose that a state government doesn’t like?

        We didn’t get rid of slavery until we had a bloody civil war. We didn’t reform the financial system until there was a Great Depression. We didn’t join the Allied side in WWII until Pearl Harbor. The United States has a long history of not making big policy changes unless and until a big crisis occurs. If you want a big policy change like implementing a single-payer health care system, you’re not going to get it through incrementalism. I get why many progressives choose to look on the bright side, and want to talk about the people helped by the compromised policies we get as a result of taking the half-loaves that are offered as “the best we can get passed.” But I also recognize that that approach still leaves a non-trivial number of people on the outside looking in; and I believe it makes it harder to build support for the additional reforms necessary to bring those people into the system, because the pressure to do so is lessened.

        • LeeEsq says:

          Gott in himmel. When as there ever been a mass spontaneous protests in the United States that led to the sort of change you imagine? Why do you think that the Supreme Court striking down the ACA would have the result you want? There is absolutely no evidence to support anything that your wrote. It is nothing more than a liberal wet dream.

          In case you haven’t notice, there are millions of Americans, oridinary lower to middle income Americans that would be peachy keen if the ACA was struck down. The Republicans get their votes from somewhere and this somewhere doesn’t consist exclusively of cranky billionaires.

        • junker says:

          How exactly do you explain SS and Medicsre/Medicaid, Prograincrementally started out as half loaves and have improved incrementally over the years? In fact the ACA and its expansion of medicaid is a great example of incrementalism.

          • liberalrob says:

            In fact the ACA and its expansion of medicaid is a great example of incrementalism.

            No argument on that point. I will celebrate right along with you if the incremental approach works out and future increments get us where we need to go. I just don’t have any faith that it will, and I don’t feel any sense of accomplishment with where we are with the ACA. It could have been better.

            • junker says:

              You just said above that big programs can’t be got through incrementalism. I cited our big social programs as cases where weak programs have have been strengthened over time. Social security has gotten better and more inclusive. We infamously added a prescription drug benefot to medicare. We just strengthened medicaid and expanded coverage. It’s already happened. These are all programs that started weak and improved incrementally. How do you respond to that?

              It is seriously like you are immune to actually considering the history of social change in this country so you can spend all your time with this woe is me act.

              • liberalrob says:

                These are all programs that started weak and improved incrementally. How do you respond to that?

                Those incremental improvements took generations, even full human lifetimes to accomplish. I understand that adjustments can be necessitated due to changing circumstances, like the SS reform in 1983 that established the trust fund to pay for the Baby Boomers because the original SS formulas didn’t result in enough revenue to cover them; but why would Medicaid need to be strengthened and its coverage expanded? Wasn’t it known at the time that it would not cover everyone who would need it? If so, why wasn’t it done then? If not, what has changed?

                It is seriously like you are immune to actually considering the history of social change in this country so you can spend all your time with this woe is me act.

                The slow pace of incremental change and its asymptotic approach to the ideal depresses me. Activists spend all their time and energy going halfway, then another half of that, then another half of that. (When there’s movement at all.) And now it seems we go nowhere. I’m tired of it.

                • Hogan says:

                  I’m tired of it.

                  Well grow the fuck up. The world we live in is the world we live in.

                • junker says:

                  Remember when ted Kennedy rejected half a loaf on healthcare with Nixon and we ended up losing the chance at it for another 35 years? Remember when Clinton did too much on health care and we lost then too? Your strategy has been proven wrong. You literally cannot point to an instance where your strategy worked, save for an actual wsr between the states.

                  I’m with Hogan.

                • Bijan Parsia says:

                  Yeah, this is really it. liberalrob has feefees which are hurt because the world sucks. So instead of trying to make it better, he wants people to do irrational things that have the likely outcome of making it worse because he believes in MAGIC.

                  Since people aren’t that irrational, they will never follow his prescriptions and he can rest comfy with the fact that they just didn’t try.

                  Oooooor he’s trolling.

        • Hogan says:

          The United States has a long history of not making big policy changes unless and until a big crisis occurs.

          And in many cases, not even then.

          If you want a big policy change like implementing a single-payer health care system, you’re not going to get it through incrementalism.

          So our contradictions need more heightening?

          • liberalrob says:

            So our contradictions need more heightening?

            Something is needed, certainly. You and I will be long dead before we get single-payer at this rate.

            • LeeEsq says:

              You know a million really isn’t a statistic. Its a million individuals with their aspirations, desires, dependents, and wants. Its better to get a half-loam with minimal suffering inflicted on society than a full loaf after years of maximum infliction of pain on society.

        • snarkfumbler says:

          What we can’t say conclusively is what would have happened then: would the nation have just shrugged its shoulders, sat by and allowed that to happen? Or would that have been the straw that finally broke the camel’s back, and caused the groundswell of dissension and activism that have stubbornly refused to happen over the past 30 years of erosion of our rights and economic opportunity?

          Indeed, who can say what the consequences might be to a Constitution-flouting Supreme Court decision with potential repercussions for the well-being of the nation? On the one hand, it might be like the reaction to Bush v. Gore, which merely flagrantly stole a presidential election for five justices’ preferred candidate. One the other hand, the Medicaid expansion involves giving more money to poor people, which is an idea so overwhelmingly popular with the American electorate that it may well have led to impeachment and removal of conservative justices, thanks to the swing towards the Democratic Party of, uh, pro-ACA voters. As you say, we can’t really know. Oh, well, I’m sure that if the Hobby Lobby case goes the reactionary Constitution-shredding way, people will finally start burning shit down in Alabama.

          We’ll never know now…and now we have a 7-2 decision that establishes a precedent that Congress in some instances does not exercise supremacy over the states.

          Yup, another ironclad precedent like the ones that the conservative wing ignored in attacking the spending power. And it’s 7-2, which gives it super extra precedential powers. No future Supreme Court justice would dare go against a previous Supreme Court decision that’s 7-2. And none of the current seven would vote differently on another exercise of federal supremacy, even if they previously have. Good grief.

        • Scott Lemieux says:

          I don’t think many people actually believe that, at least not in the way you mean. I know I don’t. But I do think it’s poor strategy to start a negotiation from a compromised position.

          Really? Can you cite a single example of a president getting a huge win by starting negotiations by taking a position far outside of the plausible negotiating space?

          Your argument is that if Breyer and Kagan hadn’t gone along, Roberts would have gone for the harsher “full NeoCon” smackdown.

          No. I’m saying there was a risk (or a perceived risk), and since their votes were otherwise meaningless Breyer and Kagan probably saw no reason not to shore up consensus where they could.

          • LeeEsq says:

            We should remember that the conservative Supreme Court justices have a long history of finding liberal legislation unconstitutional since the end of Reconstruction.

          • liberalrob says:

            Can you cite a single example of a president getting a huge win by starting negotiations by taking a position far outside of the plausible negotiating space?

            I don’t agree that the public option was far outside the plausible negotiating space. He campaigned on it and had significant, maybe even majority support for it in Congress as well as out of it. As has been pointed out, he even kept talking about it in speeches for many months, though I have my doubts about his sincerity.

            …since their votes were otherwise meaningless Breyer and Kagan probably saw no reason not to shore up consensus where they could.

            I guess we’ll have to wait to see if that cooperation buys anything beyond the instant case. But it’s certainly as plausible an explanation as any. I just wish they’d say it themselves.

            • junker says:

              Sure, he talked about it in speeches for many months, but he should have used the BULLY PULPIT MORE.

              How exactly should he have used this majority support to get Lieberman/Nelson/Bayh and others on board to overcome the filibuster? Especially since they all ended up retiring?

            • junker says:

              Seriously, this is a joke.

              You: The President should have used will power and rhetoric to get it passed. He gave up on the public option immediately.

              Everyone else: Well, here are a number of examples of Obama pushing for a public option. He pushed it for about 9 months before it was actually dropped from the bill.

              You: Well, time to move the goalposts by claiming that “he didn’t really MEAN it.”

              • liberalrob says:

                You know what, you’re right. I’m absolutely wrong about everything.

                • Bijan Parsia says:

                  This you got right.

                  Obama on the public option….not so much.

                  If you won’t concede your factual errors when extensively disproven and don’t take falling into such error as a sign that things may have gone extensively wrong in your thinking, then you are highly likely to persist in your nonsense.

                • junker says:

                  Bijan, you’re just failing to consider that liberalrob KNOWS that Obama privately secretly gave up on a public option way earlier than he said.

                  It’s funny that Obamas public statements about CPI are considered obvious truths and statements of his position but his statements about the public option don’t count because liberalrob knows in his heart of hearts that Obama wanted to kill it.

                • Bijan Parsia says:

                  It’s so confusing!

                  What I like is that the demands grow as they are met. Why didn’t Obama try to convince people about the public option, y’know give a few speeches! Whoops, he gave a lot of speeches, well why didn’t he succeed? Because they weren’t good enough speeches as proven by their failure to succeed!

            • Scott Lemieux says:

              I don’t agree that the public option was far outside the plausible negotiating space.

              Indeed, which is presumably why it was consistently in Obama’s proposals.

      • cpinva says:

        “If a label president is behind a record bill he can ram it RIGHT DOWN THEIR THROATS.”

        but Obama Didn’t.Even.Try!

    • Murc says:

      Many people of all ideologies want full proper ideological bills rather than something thats a bit of this or that.

      Speaking only for myself, I care less about compromise (though I am, of course, against compromises I feel are a worse deal than could otherwise be gotten) than I do about the dishonesty surrounding them. Aside from generally not being in favor in dishonest, it makes it unreasonably hard to evaluate a politicians actual policy preferences when their history has a whole lot of them getting up and praising to the high heavens utterly shitty legislation that nonetheless represents the most viable option at the time.

      • Anonymous says:

        What was it that Bismarck said about comparing legislation and sausage-making? The dishonesty behind compromise is the necessary theatre that keeps the political system working. Just sit back and enjoy the show.

    • DAS says:

      We know that lots of people do not like that politics is that art of the compromise and horse-trade, especially in the American system with all its veto points. Many people of all ideologies want full proper ideological bills rather than something thats a bit of this or that. Thats why so many people would prefer Obama go for a doomed single-payer bill than the actually could be passed ACA. – LeeEsq

      I, for one, have no problem with compromise and horse-trade per se, especially if it gets needed stuff done. What I do have a problem with

      (1) the idea that some in the media (*) have that “the truth is always in the middle” and a compromise policy is always the best one

      (2) when one side goes into deal making taking what, by all rights, would be the compromise position — while I agree with Scott that you don’t win starting outside the negotiating space, you also don’t win if you start in the middle of it … and you may not win at all anyway when the other side is as nihilistic as today’s GOP is

      (3) compromises in areas where the preference function and expected results are non-monotonic: if there is some change I like, I’d be willing to support a half-assed change provided said compromise would be likely to produce at least some of the gains of the policy I would want ideally. And if there is some change I dislike, I’d be happy with a half-assed version of the change if I felt that it was easier to undo than the full version and would result in less damage than the full version of the policy that I fear. OTOH, if the half-assed version of the policy wouldn’t work, I would just assume not make a compromise because the half-assed policy would only serve to discredit any future changes. Similarly if the half-assed version of a policy had all of the disadvantages that the full version would have, why should I support the compromise?

      IOW: if my preference is A < B < C and the other side's preference is C < B < A, I'd support B if I can't get C. OTOH, if my preference is B <= A < C and/or the other side views C <= B < A, why should, other than because of golden-mean idolatry, the "compromise" position of B be adopted?

      *and, FWIW, my mom when she was in her 40s-50s, now that she's creeping toward alter-kocker-heit, she's more refreshingly cantankerous politically and recovering some of her youthful liberalism

  5. Murc says:

    But Ginsburg and Breyer weren’t lying or acting in bad faith in Northwest Austin (although their strategic judgment might have been wrong); voting for the viable position closest to your own is a perfectly ordinary and defensible practice.

    There’s nothing wrong with voting for the viable position closest to your own, and it doesn’t represent bad faith, but it almost always does involve lying.

    I have trouble thinking of many examples of a judge saying “oh, this decision was a legal mockery, of course. I voted for it because the alternative was letting something even worse sail through. I don’t believe the opinion is legally sound and my signature on it is purely a matter of damage control.”

    • Scott Lemieux says:

      Really? Can you point to where any of the four liberals who joined NW Austin publicly said they agreed with any of the dicta?

      • Murc says:

        The part where they joined NW Austin?

        Seriously. They joined the opinion. They may have done so purely out of political expediency. In fact, I would be shocked if Breyer’s vote wasn’t pure political expediency. That’s fine! They’re a lawmaking body. That’s what happens.

        But I do believe it is the case that if you’re lying one way or the other because you believe you don’t have a choice, you have an ethical obligation to disclose that. Either Breyer and Kagan agree with the dicta or they don’t. If they don’t, they have an obligation to say “this opinion is unsound and I joined it because the alternative is worse.” If they do, they have an obligation to say “my views on the Constitutionality of these matters have changed.”

        You don’t, in my opinion, get to have it both ways; signing onto an odious opinion for political reasons but still getting street cred because everyone “knows” you were lying when you did it.

        • Scott Lemieux says:

          But they’re only lying if you assume that joining a judgment means that 1)it’s your optimal position and 2)you agree with all the dicta in an opinion, and there’s no basis for either belief.

          • Dilan Esper says:

            The thing is, you are using justices signing on to an opinion with some troublesome dicta to prove they would make a troublesome holding in another case. Apples and oranges.

            • Scott Lemieux says:

              The thing is, you are using justices signing on to an opinion with some troublesome dicta to prove they would make a troublesome holding in another case.

              I’m doing no such thing. I’m using it to prove that 1)you can’t presume that the votes of justices represent their sincere optimal preferences, and 2)that justices aren’t “lying” when they vote for their minimum acceptable position even if it’s not their optimal position.

          • Murc says:

            But they’re only lying if you assume that joining a judgment means that 1)it’s your optimal position and 2)you agree with all the dicta in an opinion, and there’s no basis for either belief.

            Wait… what?

            Just because everyone knows you’re lying doesn’t make it any less a lie. By this logic, Republicans aren’t lying when they talk about how committed they are to preserving Social Security and Medicare.

            When you sign onto a legal judgment, you are making an affirmative statement that you agree with the dicta. If you don’t actually agree with the dicta, you were in fact lying when you signed your name to it. That may have been the least bad option available to you at the time, but it doesn’t make it not a lie.

            • Dilan Esper says:

              On this one, I am with Scott. Multi-judge courts couldn’t function unless judges sometimes signed onto opinions that contained language they disagreed with. (In the earliest history of the US, courts delivered opinions “seriatim”, and it was often impossible to determine the holding. That was found to be unworkable, so we now have the system where judges sign onto a majority opinion in most cases.)

              But that doesn’t mean that judges routinely sign onto HOLDINGS they don’t agree with. These are two very different things. And the latter requires some proof because generally, we presume that judges are honest about these fundamental matters.

              • liberalrob says:

                Where are Breyer and Kagan’s concurrences where they explain how they disagreed with the holding in Sebelius but nevertheless supported the majority opinion because it was better than the alternative? I guess we’re just supposed to infer that because they’re “liberal.” Maybe keeping their traps shut was part of the deal. Or are concurring opinions not allowed in this instance?

                • Scott Lemieux says:

                  Where are Breyer and Kagan’s concurrences where they explain how they disagreed with the holding in Sebelius but nevertheless supported the majority opinion because it was better than the alternative?

                  Yes, writing a separate concurrence saying that Roberts was wrong sure would have solidified Roberts’s unprecedented swing vote to joining the liberals. I can’t imagine why they didn’t deploy this brilliant strategery. Similarly, I can’t explain why Ginsburg didn’t file a concurrence in Shelby County concurring in he judgment but noting that she rejected virtually all of the reasoning.

              • Scott Lemieux says:

                On this one, I am with Scott. Multi-judge courts couldn’t function unless judges sometimes signed onto opinions that contained language they disagreed with.

                It’s not just judges, either. Murc’s requirement that everyone be fully candid about their sincere preferences all the time would make all political leadership impossible.

                • Murc says:

                  Murc’s requirement that everyone be fully candid about their sincere preferences all the time would make all political leadership impossible.

                  That may or may not be true, but it’s also distinct from whether or not deliberately hiding or obfuscating your sincere preferences counts as lying.

                  I say it does.

                • junker says:

                  Based on what you say here, though, why does it matter? Do you think that politicians should always say exactly what they think/feel? And if you don’t, then why does it matter if you label it as lying or not?

                  What I drew from what you have here is that lying is bad, and it’s bad for justices/politicians to mislead about their preferences. I don’t think that it’s always good for politicians to be straight up about what they want.

                • Bijan Parsia says:

                  That may or may not be true, but it’s also distinct from whether or not deliberately hiding or obfuscating your sincere preferences counts as lying.

                  I say it does.

                  Lying per se usually involves uttering a falsehood. You can lie by omission when the omission is tantamount to a positive asserting, but I don’t see how merely concealing your preference is a lie. It might be deceptive in some cases but not all deception is a lie. (Think sleight of hand!)

                  To make a poker analogy, since they are a la mode, maintaining a poker face is just withholding information. Faking a yell is a deception (but not a lie). Saying, “I sure love my flush which I have here” when you don’t have a flush is a lie.

                • Bijan Parsia says:

                  …faking a *tell*, or, at least, an edit button.

        • cpinva says:

          “They’re a lawmaking body.”

          no, they aren’t, that job is left to the legislative branch. in our system, that would be congress. the court’s job is to scrutinize those laws, and ensure they meet the minimum requirements of our constitution, as amended.

          in a perfect world, everyone would say and write just exactly what they really think. this “perfect world” scenario would also end up in chaos, if not total destruction. and so, as a society, we’ve developed the art of discretion/diplomacy, so we can (hopefully) accomplish what needs to be done, while continuing to work for what we believe is improvement.

          if you’ve got a better plan, by all means, let’s hear it.

          • Hogan says:

            Meanwhile the poor Babel fish, by effectively removing all barriers to communication between different cultures and races, has caused more and bloodier wars than anything else in the history of creation.

          • Murc says:

            no, they aren’t, that job is left to the legislative branch. in our system, that would be congress. the court’s job is to scrutinize those laws, and ensure they meet the minimum requirements of our constitution, as amended.

            Er, the Supreme Court is definitely a lawmaking body, dude. Judge-made law has a long and proud tradition stretching back hundreds of years. It’s a big part of both American and British common law.

  6. DAS says:

    Obama puts Chained CPI in his budget with conditions that make it unpassable [...] almost everybody who assumed that Chained CPI in his budget reflected Obama’s passionate commitment to killing Social Security also assumes that Obama spent most of his first term secretly stopping Congress from adopting legislation he publicly supported.

    There is a bit of an excluded middle here: that Obama is in fact committed to saving social security and he thinks chained-CPI is a good idea or at least necessary to save the program. The other argument is to agree with the fact that Obama was being strategic here (to try and make it clear that it was the GOP who wasn’t really open to any sort of compromise), but outside of “even the liberal media” and the great unwashed masses who still think the media is liberal, it should be pretty clear by now how intransigent the GOP really is on the whole, and anyone who doesn’t know that yet won’t realize it do to some 11-D chess from Team Obama.

    OTOH, that Obama was being strategic rather than proposing legislation based on his true beliefs, to the extent that it was obvious, just re-enforces the idea that Obama really doesn’t have any core beliefs (or that his core beliefs are, depending on what side of the aisle you’re on, “extreme radical socialist communist” or “neoliberal sell-out to big $$$” and that he is trying to hide them) as well as opens up Obama to the criticism — (a) “he wasn’t really trying to save social security, he was just playing politics with social security to be mean to the GOP … why isn’t Obama interested in saving social security?”. And to the extent that people don’t realize he was being strategic it open to (b) “Obama wants to cut our social security (even as he’s moving to increase food stamps, etc.”

    Interestingly enough (a) and (b) are sometimes said by the same people! I guess the point is that maybe Obama was being strategic with chained CPI, but given how messed up our political discourse/environment really is, did that strategy make sense?

    • Scott Lemieux says:

      As I’ve said, I think the Chained CPI proposal was a dumb idea, even though it was a presented in a form that had no chance of passing.

      • mpowell says:

        Well, you can believe that Chained CPI is a bad idea while recognizing that there is room for legitimate dissent. SS should try to use an accurate measure for inflation. If regular CPI is a good measure use that. If chained CPI is better, use that instead. Don’t just use the one that gives you the greatest measure of inflation. That breaks the guaranteed fixed benefit concept.

    • gratuitous says:

      Well, that’s a relief! Knowing now, absent any clear statement one way or the other and relying solely on the public record, the President was just fucking with the Republicans with his feigned support of chained-CPI. I mean, I was taking that sort of seriously, and counting the cost of what this would mean to me when I retire in 10 12 15 (Oh, who really knows anymore?) years.

      I spent all that worry, wrote letters, signed petitions, talked to other voters nearing retirement, for nothing, because the President was cunningly playing some 12-dimensional chess with my financial well-being at stake. Dopey me! This was just Sequester 2: Electric Boogaloo. Just like the Chained-CPI pas-de-deux, Sequester was a poison pill that would never actually pass in a million ye–waitasecond.

      You know, why is it when the politicians are screwing around with things to scare people but they’re not really serious, isn’t it with the bloated defense budget or the obscenely low tax rate on capital gains? But making a public show of messing with social security is deemed acceptable, and only the rubes believe it’s actually going to happen. Until it does. Then it’s all the rubes’ fault for not speaking up sooner, and you got what you deserved for thinking it wouldn’t really happen.

    • liberalrob says:

      A lot of people believe Chained CPI is a good idea because of how it’s presented. How could you be against a proposal to make COLA more accurately reflect economic reality? Sounds pretty reasonable. But then you look at it more closely, and see what it really is, and then it doesn’t look so reasonable anymore. Supply-side economics also looks reasonable, until you sit down and think about it carefully. Then you see it really is stupid.

      I imagine the President (who is not an economist) got an Executive Summary of what Chained CPI was, said “hey, that sounds pretty good,” and that was as far he went. He’s a busy man, surrounded by busy men, and those busy men have their own agendas too.

      • DAS says:

        I imagine there are people in this country who hear experts say “chained-CPI will ensure social security benefits increases better reflect the actual rate of inflation” and think that chained-CPI will mean that social security increases would be higher with chained-CPI … because “clearly there is more inflation than the gummint says … I had to pay $3.50/gallon for gasoline … I remember when gasoline was < $1.00/gallon"

  7. Marek says:

    But.. but… balls and strikes!

  8. Grumpy says:

    I know this is largely off-topic, but speaking of strategy, what’s everyone’s take on Ginsburg and whether she should retire? I’ve now read both Bazelon and Lithwick’s critiques of the “RBG should retire” camp, and found them remarkably unpersuasive. There’s a lot of huffing and puffing about RBG’s dignity, sexism, etc., but this seems to me like a straightforward case where the downside risk (of RBG having to step down during a Republican presidency) is so bad that everything else simply falls by the wayside.

    • Lee Rudolph says:

      The upside risk, of course, is that the Republicans won’t let Obama fill her vacated seat at all.

      Though the prospect of seeing him do it anyway as a recess appointment is almost worth it.

      • junker says:

        Well, as Scott has said in the past, it’s hard for a party to serially reject Supreme Court nominees because it’s so much higher profile than anything else. I also think that if the downside is that Republicans prevent the confirmation, then that’s not really any worse than her stepping down with a Republican President. Rather I’m not sure what the upside to waiting is.

        • Grumpy says:

          If RBG stepped down now, how would the Senate Republicans stop Obama’s nominee from being confirmed, given that the Democrats currently control the senate?

          • junker says:

            Supreme court nominees can still be filibustered, if I recall correctly. So theoretically they could serially filibuster nominees but as I said above, the Supreme Court is so high profile that it’s hard to imagine they could keep it up.

        • DAS says:

          Why would it be so hard for the GOP to reject a SCOTUS nominee? The GOP just needs to get a 1-2 Dems on board for a rejection vote or, short of that, filibuster (as Junker points out just below). The issue would be the political cost the GOP would pay for doing this … and frankly, I don’t see any cost: if the GOP gets 1-2 Dems on its side, it pays no political cost because the media headlines will read “Bipartisan Coalition Rejects Obama SCOTUS Nominee” with the implication being that Obama nominated some partisan shrill pinko or something. Even if the GOP filibusters, the headlines will just be “Washington Disfunction Blocks Obama from Appointing SCOTUS Justice”, with the take-home message being the GOP message of “government doesn’t work”.

    • … what’s everyone’s take on Ginsburg and whether she should retire? …

      I think the only take that matters is Ginsburg’s.

      • Grumpy says:

        How are you defining “matters”? Obviously she has exclusive power to make the decision, but the fact that our debate can’t change things doesn’t preclude having the debate … does it?

        Or have I missed your point? Are you just being a pointless scold?

        • … but the fact that our debate can’t change things doesn’t preclude having the debate … does it?

          It seems like it makes a debate pointlessly divisive.

          If she had become unable to discharge the duties of her office that would be another matter.

          • Grumpy says:

            You must be kidding. This is a progressive blog maintained by a bunch of obscure academics–and Paul Campos. 95% of what they post cannot change any outcomes anywhere. Does that make 95% of the blog needlessly divisive?

            If you don’t feel like talking about it, simply don’t post.

    • Murc says:

      I know this is largely off-topic, but speaking of strategy, what’s everyone’s take on Ginsburg and whether she should retire?

      I will consider Ginsburg to be grossly derelict in her duties as a lawmaker if she doesn’t step down at the end of this term.

      Part of being a responsible Supreme Court justice is doing your best to ensure that your successor is ideologically congenial. If Ginsburg doesn’t retire before 2015, she won’t be replaced until after the 2016 elections. And that just runs a colossally high risk she’s replaced by another Sam Alito.

  9. … And, certainly, the only thing we can safely infer from the Breyer and Kagan votes is that they preferred .5NeoCon to NeoCon.

    I think a possibility is being overlooked here. Suppose SCOTUS had upheld making receipt of existing Medicaid money conditional on accepting the expanded program. Then I think it is likely that some (perhaps many) red states would have refused to accept the expansion and dared the federal government to take away their existing money (which would cause the termination of the existing Medicaid program in those states). That would have placed the Obama administration in an awkward position and perhaps Breyer and/or Kagan thought it best avoided. After all it is generally assumed that all the holdout states will eventually sign up just as happened with the original program.

  10. [...] a position on the Supreme Court is a political job, and those who hold it behave politically. They assemble coalitions to strategically advance issues they care about. They are at least somewhat sensitive to public opinion. Justices may be insulated from elections [...]

  11. […] just like the permanently unassailable Dred Scott v. Sandford!!!!!” argument.  Even in the enormously unlikely event that Breyer and Kagan weren’t voting strategically, all this would prove is that Breyer and […]

  12. […] and Elena Kagan, voted for this unprecedented limit on the federal spending power. Some observers (including myself) have interpreted Breyer’s and Kagan’s votes as strategic, doubting that either would have been […]

  13. […] and Elena Kagan, voted for this unprecedented limit on the federal spending power. Some observers (including myself) have interpreted Breyer’s and Kagan’s votes as strategic, doubting that either would have been […]

  14. […] also reinforces my belief that Kagan and Breyer would not have been the swing vote to re-write the Medicaid […]

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