Matt Yglesias has a very disturbing post. I’d guess that most intellectuals who read the post will yawn, which makes it even more disturbing:
The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.
This is just incredibly sad. I don’t fit into Yglesias’s generalization (making me inessential?), but even if I am 100% wrong about the Halbig case, I would not change a single word of this post. It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.
Then it gets worse:
The judicial branch is supposed to operate separately from the contours of partisan politics. But judges are human beings, subject to the same cognitive failings as everyone else — and the cognitive failings associated with polarized political disputes are large. And the judiciary is becoming more polarized along with everything else in America. David Paul Kuhn, for example, has shown that 5-4 decisions have become drastically more common over time.
The Supreme Court gets to choose which cases it hears, and this shows a Court that is increasingly inclined to hear cases that sharply divide the justices — and therefore the legal community — rather than to rule on questions where there is broad consensus. The justices also seem increasingly inclined to write maximalist rulings that can secure minimum winning coalitions, rather than to enter into compromises to secure broader agreement.
Another sign of polarization is in the selection of clerks. In recent years, Justices appointed by Democrats have come to almost exclusively select clerks who worked for Circuit Court judges appointed by Democrats and Republican justices behave the same way. Rather than seeking to surround themselves with intelligent young aides of varying views who will challenge their knee-jerk opinions, Justices seek assistants who share their outlook. Institutions like the Federalist Society and the American Constitution Society operate to ensure that politically-active lawyers operate in separate intellectual and professional networks from an early age.
So the Supreme Court is becoming increasing politicized, just like everyone else. Is that bad? Let’s just say it means we are becoming more like Venezuela. I’ll leave it up to you to decide whether it is bad.
Then it gets even worse:
Vox’s Ezra Klein mounted an argument that it’s very unlikely the Supreme Court will affirm Halbig, citing the pragmatic reality that taking away health insurance from millions of people who already have it could be a political disaster. This makes a ton of sense to me. But as a forecast it would carry more credibility if we were seeing it on Fox News or The Wall Street Journal editorial page. Justice Scalia has gone so far as to say he doesn’t read the New York Times or the Washington Post because they’re too liberal, so it’s not obvious that ideas circulating in the non-conservative press tell us much about the thinking of conservative judges.
So it’s not just Paul Krugman who brags about reading only one side, the same is true of Scalia. What Scalia doesn’t understand is that the bias of the NYT (which is real) makes it even more essential that he read that paper. Think about it. If the NYT and WaPo have liberal bias, how likely is it that the WSJ and Fox News do not have conservative bias? About one in a billion?
I find that when I read only one side of an issue like Halbig I get a biased perspective. Only after I read both sides do I have enough information to have an informed opinion. I compare the facts presented, the logic of the arguments, etc. You can usually tell who has the better argument. In this case I thought the liberals did, but that’s immaterial. I could easily be wrong. The point is to see both sides of the argument.
I once got into trouble for calling Krugman ignorant, by which I meant unaware of conservative viewpoints. People thought I was calling him stupid. Krugman and Scalia are obviously brilliant, but if they just read one side of the debate then there are not getting the maximum benefit from that brilliance.
Now go read a post by Brad DeLong or Mark Thoma to balance out my anti-Krugman bias!