The NYT and WaPo have liberal bias, which is why conservatives need to read them

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!


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74 Responses to “The NYT and WaPo have liberal bias, which is why conservatives need to read them”

  1. Gravatar of Becon Becon
    24. July 2014 at 11:25

    “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.”

    Is that how legal opinions are authored? “We the majority, citing the pragmatic reality, think it would be too disruptive to strike down this unconstitutional practice. So we won’t. Have a nice day.”

  2. Gravatar of Russ Abbott Russ Abbott
    24. July 2014 at 11:30

    I see Krugman referring to conservative blogs and papers quite frequently. He often does so to criticize them. But he reads them.

    Also (and you may dismiss this as a typically liberal position) I don’t think it’s symmetric. Conservatives are far more ignorant of liberal thinking than the other way around.

  3. Gravatar of David R. Henderson David R. Henderson
    24. July 2014 at 11:59

    @Scott,
    I would change a few words in Matt’s post. Specifically, when he discusses “congress’ [sic] goals,” he takes it as given that Congress’s goal was to give those subsidies and tax penalties in states that did not have exchanges. [I’m assuming he’s a supporter of ACA.] How would he know that? Does it occur to him that this could have been part of a political compromise to get 60 Senate votes and a majority in the House?

  4. Gravatar of foosion foosion
    24. July 2014 at 12:08

    @David

    How would Matt know congress’s intent? There was a lot of public discussion about the ACA leading up to and following its passage. Matt followed this discussion rather closely.

  5. Gravatar of CA CA
    24. July 2014 at 12:10

    Russ Abbott, here’s Krugman’s own words.

    “Some have asked if there aren’t conservative sites I read regularly. Well, no. I will read anything I’ve been informed about that’s either interesting or revealing; but I don’t know of any economics or politics sites on that side that regularly provide analysis or information I need to take seriously. I know we’re supposed to pretend that both sides always have a point; but the truth is that most of the time they don’t. The parties are not equally irresponsible; Rachel Maddow isn’t Glenn Beck; and a conservative blog, almost by definition, is a blog written by someone who chooses not to notice that asymmetry. And life is short …”

    I won’t post the link because if I do my comment will get help up. So just google “Krugman Other Stuff I Read” to find the blog post.

  6. Gravatar of zed zed
    24. July 2014 at 12:17

    Scott,
    First observation: You interpret this to mean intellectuals cannot be trusted to argue in good faith, but I think it means you need to re-evaluate who you consider to be an intellectual (as opposed to intelligent hacks or gifted trolls).

    Second. I have sympathy with your position generally, but this is a very borderline case, perhaps a more borderline case couldn’t be imagined. This court challenge is a symptom of the law’s extraordinary path: (i.e., no chance for scrutiny and likely slipshod construction), it’s absurd complexity (difficult to grasp in its timeframe), and it’s unpopularity (preventing simply fixing it). Support it or not, as legislation it probably deserves what its getting.

  7. Gravatar of J Mann J Mann
    24. July 2014 at 12:33

    In limited response to Matt, I think he’s partially confusing correlation and causation.

    If you’re generally sceptical of government power, then you’re likely to believe both (a) that the government shouldn’t take over large swaths of health care and (b) that Congress should be held to the terms of the laws it actually writes, at least when those terms are clear, rather than allowing regulators to decide what Congress really meant.

    And if you trust Congress and HHS to design a health care payment and regulation system, then you’re more likely to trust HHS to ignore plain language and determine what Congress wishes it had written.

    So there’s some co-variance as well as causation.

    I do agree generally that 90% of the people writing on legal issues start with the outcome (is it fair that workers have to file sex discrimination cases within 6 months of learning of the discrimination) or even just the players (do you support women or corporations) instead of asking what the law is.

    If one’s default measure of judging legal cases is to ask whether one likes the outcome, then it’s not surprising to see the split that Matt intuits.

  8. Gravatar of TravisV TravisV
    24. July 2014 at 13:10

    Dear Commenters,

    Has the Halbig surprise had a strong impact on the price of any major healthcare stocks?

  9. Gravatar of Phi Phi
    24. July 2014 at 13:16

    J Mann, Matt Yglesias is not confusing anything and your comment is a really good illustration that he isn’t, at least from the conservative side.

    Funny how skepticism of government power leads one to believe that “Congress should be held to the terms of the laws it actually writes” whereas trust in government power means you’ll trust it to “ignore plain language and determine what Congress wishes it had written.” That’s all language that suggests you’ll inherently disagree with Matt on general principle because he’s a liberal.

    Even though you actually agree with him.

  10. Gravatar of Dustin Dustin
    24. July 2014 at 14:04

    Scott,

    I find this argument a bit similar to arguing against the obvious bias in right handed people selecting only baseball gloves that for their left hand.

  11. Gravatar of Dustin Dustin
    24. July 2014 at 14:06

    RE: ACA, does anyone actually know what congress intended? Or is everyone assuming congress’ intent in a manner to support their own opinion of the decision?

  12. Gravatar of ChacoKevy ChacoKevy
    24. July 2014 at 14:29

    @Dustin:
    “Senate staffers: We meant for everyone to have access to subsidies”
    http://www.vox.com/2014/7/23/5927169/halbig-says-congress-meant-to-limit-subsidies-congress-disagrees

  13. Gravatar of TravisV TravisV
    24. July 2014 at 14:49

    Map: The happiest places in America

    http://www.vox.com/2014/7/24/5931565/map-the-happiest-places-in-america

  14. Gravatar of JNCU JNCU
    24. July 2014 at 14:54

    “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”

    Reading liberal sources is functional and positive for conservatives policy makers and activist, not justices. Justices decide if a law has been broken or not.

    They interpret law, they do not make it. What can Scalia learn from NYT? That the text of the Constitution means the opposite of what it meant to the Federalist writers?

    That just because the outcome of a JUDICIAL decision does not align with the Democratic Party’s policy preferences then the text means different than what it says?

    Tea Party members and Occupy members should read the other side sources, the would make everybody a MM : ).

    Justices are in a totally different situation.

  15. Gravatar of Major_Freedom Major_Freedom
    24. July 2014 at 15:22

    Dear readers,

    Read this closely, and read this well:

    Every single person in the world who shows discomfort, or resentment, or concern, or any other non-accepting behavior towards “polarization”, are themselves a polarizing person.

    Ygelsias is not against polarization. In fact, his article is a battle cry to polarizing lefists and progressives to gain more political power in order to eradicate disagreement *with his own* desires and wants. His politics, ethics, and motivations are all predicated on introducing guns and violence into otherwise peaceful cooperation. His definition of compromise abolishes voluntary association. Some compromise! Doctors and patients deciding for themselves when and on what terms healthcare exchanges will take place? Abolish it! Replace it with guns forcing doctors what to do and who to treat and on what terms, and guns forcing the hapless taxpayers to finance it all. Oh he pretends to want compromise. The room for compromise is so huge, so open and varied that the only “approved” way you can challenge his crusade, would be through the super gigantic window between force and guns, and force and guns. Compromise by slightly “relenting” on just how many dollars will be stolen. Compromise by slightly relenting on just how many and which government “approved” doctors and which services “qualify”. Compromise by slightly relenting on the minutiae of the Affordable Care Act, but it will be imposed on the minority whether they like it or not. But don’t you dare be absolutely against introducing government violence into healthcare!

    He wants the government to introduce force and coercion against those who would otherwise politely decline his desired ends for their lives and who would go about their lives and trade and talk with others as *they* see fit for themselves.

    Yglesias is a polarizing person who wants to increase and exacerbate master and slave like relationships in the world. Masters who control government, slaves who are told how to live their lives in their own healthcare.

  16. Gravatar of [insert here] delenda est [insert here] delenda est
    24. July 2014 at 15:38

    In Scalia’s defence, he always does read both sides of an issue. … Does it really matter if he reads the NYT??

  17. Gravatar of ssumner ssumner
    24. July 2014 at 16:17

    Russ, You said:

    “I see Krugman referring to conservative blogs and papers quite frequently. He often does so to criticize them. But he reads them.
    Also (and you may dismiss this as a typically liberal position) I don’t think it’s symmetric. Conservatives are far more ignorant of liberal thinking than the other way around.”

    He says he doesn’t read them. You think he’s a liar?

    Scalia also says he doesn’t read liberal stuff. Maybe he lies too.

    When I was young conservatives knew far more about liberals than vice versa, just as Canadians know more about America than Americans know about Canada. Now it’s about equal. Tyler Cowen certainly knows far more about Krugman’s views, than vice versa.

    David, Maybe, but on balance I find the other argument more persuasive.

    Zed, That’s certainly a reasonable argument. This post is more about my frustration with the politicization of the Court. If this was a one time example, I’d be less worried.

    J Mann, I’ve seen too many other cases like this. If it was the opposite issue, the right would be arguing for the Congressional intent, not literal wording. You get the same splits with question like whether Clarence Thomas was telling the truth. Things that should have nothing to do with ideology.

    JNCU, Yes, they should interpret the law. And their research aides should present both points of view to them. Do they? I doubt it.

    delenda, It annoys me when people brag about not reading things they disagree with. Especially when the reason given is that they don’t agree with it. I presume he also doesn’t read the New Yorker, or the LA Times, or The Nation.

  18. Gravatar of J Mann J Mann
    24. July 2014 at 16:28

    You’ll have to take my word for it, Phi, but I’ve been a rules based contactual and stultify interpreter since the 90s – I prefer Corbett.

  19. Gravatar of J Mann J Mann
    24. July 2014 at 16:31

    D’oh! CorBIN

  20. Gravatar of Sg Sg
    24. July 2014 at 17:37

    The failure of liberals to understand the difference between the subjective intent of congress and the intent of congress expressed by the text of a statute is galling. Perhaps it’s intentional.

    But Ezra Klein’s “punditsplaining” on a potential Supreme Court decision striking the subsidies was hilarious.

  21. Gravatar of ivar ivar
    24. July 2014 at 17:40

    While I agree in principle with Scott, in practice, it is not balanced to read both the NYT and the WSJ except on specific individual issues. A person educated at a leading university and who lives in most upper class enclaves is exposed to 100x more liberal views than conservative or libertarian. A conservative receives 1000x more liberal messages (adding up left liberal and libertarian social views) than conservative. Even the news pages of the WSJ are widely accepted to be close to the liberal mainstream. Only the editorial pages are notably right wing. There is no counterpart to Hollywood on the right unless one only reads books or watches films from the period before the early 1960s.

    I personally have stopped reading the NYT except on occasion. I find that its core views are so readily reflected in every mainstream outlet and around the water cooler that it’s not worth the effort of dealing with its smarmy — of course we are neutral and you are biased neanderthals — view of the world. De long is the same only he adds sneering and rudeness. And which leading intellectual on the right is as rude and unreasonable as Krugman? The fact that one must look to O’Reilly or Rush to get a counterpart tells you how unseemly elite opinion on the left is that a leading academic finds it acceptable to be so offensively partisan.

  22. Gravatar of Jim Glass Jim Glass
    24. July 2014 at 17:56

    Regarding these claims….

    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…

    Two-thirds of the Supreme Court’s opinions in the current term were unanimous, as in 9-0, the most since the 1940s. The number of 5-4 decisions was the lowest in a decade.

    This in spite of the fact that the Court has indeed taken a larger proportion of cases that are prone to divisive opinion — but in exactly the *opposite* manner claimed above, i.e. by focusing on doing its fundamental job of resolving disputes that have split the lower appeals courts, taking a much larger proportion of those cases and fewer cert cases.

    Cases that have already actually split the appeals courts *obviously* are the most divisive — and even so, while the Supreme Court is taking a record high proportion of these most-divisive cases it is deciding them with a 70-year high record of unanimity! A remarkable achievement.

    Did any of you catch any of this from Yglesias?

    A typical-quality performance by him, as I’ve noted in these comments before. He always gets everything wrong — he was wrong in *everything* he said here: about the divisiveness, how the court has changed its pattern of accepting cases, the expected result of that change, everything — but he’s such a good poser you’d swear he’s right! And enlightenedly insightful too!

    Reality is, he *is* exactly what he complains about here.

  23. Gravatar of Major_Freedom Major_Freedom
    24. July 2014 at 18:10

    “Reality is, he *is* exactly what he complains about here.”

    Bingo.

  24. Gravatar of Jim Glass Jim Glass
    24. July 2014 at 18:12

    Scalia also says he doesn’t read liberal stuff.

    Where does he say that? And what “liberal stuff” do you say he was talking about?

    Krugman can easily avoid reading conservative economic stuff. There is no way on the good green earth that Scalia can avoid constantly reading liberal court opinions, briefs, precedents, and being up on all of them.

    So you’ll have to clarify, or this will appear to me to be just the old moral equivalence ad hominem.

  25. Gravatar of JNCU JNCU
    24. July 2014 at 18:23

    Sumner

    I can see you are not familiar with judicial interpretation views. There is where the court’s polarization comes from.

    The best way to see the court is that the liberal “living Constitution” view does not interpret the constitution, it makes decision base on the outcomes preferred by the Democratic Party or the liberal elite if you like. It is purely political, not judicial, and polarizing.

    The textualist view, Scalia’s, just uses the text, and intent only when necessary. It is not political. It leaves politics to Congress.Done. Then different views makes sense because we are talking about policy. In Congress, not int he judicial process.

    There is no way an aid can give the justice other opinions because others opinions are about the outcome liberals want, not the text. How the NYT can change what the text says?

    Just listen to Scalia’s discussion of “substantive due process.” I will try to find the best video and post the link.

    “Substantive Due Process” is the reason for all the polarization, not political preferences. The concept is not even hinted in the Constitution, it just became popular among justices because it allows them to make policy on the fly. No democracy needed.

    Scalia’s interpretation is the only that allows for democracy.

  26. Gravatar of JNCU JNCU
    24. July 2014 at 18:30

    Long but explains a lot,

    “the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

    What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

    Now, what liberties are they? The Court will tell you. Be patient.”

    [http://www.cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm]

  27. Gravatar of JNCU JNCU
    24. July 2014 at 18:31

    Long but explains a lot,

    “the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

    What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

    Now, what liberties are they? The Court will tell you. Be patient.”

    [cfif.org/htdocs/freedomline/current/guest_commentary/scalia-constitutional-speech.htm]

  28. Gravatar of JNCU JNCU
    24. July 2014 at 18:33

    This explains a lot,

    “the doctrine of “Substantive Due Process.” Only lawyers can walk around talking about substantive process, in as much as it’s a contradiction in terms. If you referred to substantive process or procedural substance at a cocktail party, people would look at you funny. But, lawyers talk this way all the time.

    What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It’s a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

    Now, what liberties are they? The Court will tell you. Be patient.”

    Lecture: Constitutional Interpretation the Old Fashioned Way.

  29. Gravatar of Dustin Dustin
    24. July 2014 at 18:35

    ChacoKevy

    Thanks for the link. Seems congressional intent was obvious for those close to the creation of the law but not evident within the law itself.

  30. Gravatar of Bababooey Bababooey
    24. July 2014 at 18:39

    Jim Glass beat me to it, but it bears repeating:

    “Two-thirds of the Supreme Court’s opinions in the current term were unanimous, as in 9-0, the most since the 1940s. The number of 5-4 decisions was the lowest in a decade.”

    Though, I suspect that’s not so much collegiality as the Solicitor General bringing ridiculous case on behalf of the administration.

    The partisan divide seems larger to people focused on Washington D.C., who spend inordinate amount of time on internet blogs and whatever you call Vox, Brietbart, Slate, and Ace of Spades.

    The NYT is just a bad newspaper to me, too many credulous, lazy reporters giving lite re-writes to press releases and anonymous sources. Give me the great, grizzled skeptics like Ron Bailey, Dan Niel, Michael Kinsley, Mickey Kaus, Jack Shafer and so on.

  31. Gravatar of John Thacker John Thacker
    24. July 2014 at 18:58

    But the Justices themselves are pretty consistent in philosophy, far more so than voters or politicians. Take the recent Aereo. All nine Justices basically agreed that the law as written didn’t cover Aereo, that they had found a loophole in the law, and all basically agreed that Congress probably would have meant to ban Aereo if they had thought about it.

    And the three most conservative justices, Justices Alito, Scalia, and Thomas, ruled for textualism and the letter of the law, whereas Breyer and the liberals wrote an opinion that favored the spirit of the law over the text.

    Most people outside the Justices responded on the basis of liking Aereo personally or not. One person’s carefully following the law is another person’s loophole. Many of those progressives who know in their hearts that the ACA should be upheld based on what Congress meant were outraged that Aereo’s loophole was struck down. It was about good guys vs bad guys, about policy results.

    But the Justices themselves are pretty consistent.

  32. Gravatar of Benjamin Cole Benjamin Cole
    24. July 2014 at 19:32

    JNCU-

    My take on Scalia is that he is a textualist, or originalist, except when he is not. He has taken to calling himself a “modified originalist.” That’s convenient!

    And no, the liberal judges are not better. Maybe even worse.

    The Bush v. Gore 2000 decision cannot be explained by any appeal to logic, or judicial reason. It was simple gut politics, on both sides.

    In that particular case, probably most of the reason was on Gore’s side, but the libs voted for Gore as they were libs, not for any reasons that made sense.

    Frankly, I find it impossible to be a 100 percent originalist, or strict constructionist. People were put into stalks and suffered public humiliation back when the Constitution was written. Our Founders did not consider that cruel and unusual punishment.

    Or consider the 2nd amendment, which gives me the right not only to have guns, but “bear arms” and form militias.

    “Arms” even in the 1770s included rockets, bio-weapons, cannons, and guns. Really, I can form a militia armed with bio-weapons, cannons, RPGs and M16s? Can the Black Panthers?

    And why have well-regulated militias been totally eclipsed by a federalized, permanent and standing, professional military of the very type our founding fathers loathed, detested and reviled?

    Do you wish to disband the military and replace it with bona fide citizen militias?

    I think we should just state the obvious: We have liberal and conservative judges, and they vote the way they want.

    The same thing is true of macroeconomists, mostly.

  33. Gravatar of TravisV TravisV
    24. July 2014 at 19:55

    Great stuff, Benjamin Cole, great stuff!

  34. Gravatar of JNCU JNCU
    24. July 2014 at 20:41

    Cole

    I know Scalia is not perfect, but as you said the lib are worse. Why? Because they do not care about the text. At least you can make Scalia, which I have, and Thomas accountable to the text. The libs are out in the wild with their heart and rhetoric.

    This is the core of the issue. You said:

    “People were put into stalks and suffered public humiliation back when the Constitution was written. Our Founders did not consider that cruel and unusual punishment.”

    I agree with you. Let’s make a law against that or even better, a Constitutional amendment. DO NOT take it to court. The judicial branch needs a text against that punishment to declare it illegal. Let’s give to them.

    If you take it court they are going to make something up inside of their mind. But if we pass a law or an amendment they have to judge base on the text we gave them. That means we decide, not the justices.

    You have great ideas, let’s take them to Congress. That is what I like about this blog, everybody is looking for solutions. Congress is where the democratic process is found. Imperfect yes, but that is part of democracy.

    Great stuff Cole by the way.

  35. Gravatar of Jon Jon
    24. July 2014 at 20:58

    Scott, the editorial page of the WSJ is quite conservative, but the editors of the opinion pages are not the editors of the newspaper, and the WSJ “A” section is to the left of the WaPo. The authors & editorial tone of the soft pieces are to the left of the NYT.

    BTW, if you do carve out a bit of time for the WSJ in the future, I suggest reading first and foremost Mary O’Grady. As far as reporting on South America, she does a much better job than the Economist.

  36. Gravatar of Benjamin Cole Benjamin Cole
    24. July 2014 at 22:42

    Travis and JCNU–

    Thanks, and I hearby hand my soapbox over to yous. Yes, that is plural of you, in Brooklynese.

    I actually wonder if we should go back to a citizen military.

    A permanent, professional military has become a powerful lobby group, with far worse effects and influences than even imagined by President Eisenhower in his excellent farewell message.

    And yes, SSDI and food stamps need to go too! Okay, now you can have the soapbox….

  37. Gravatar of Kevin Erdmann Kevin Erdmann
    24. July 2014 at 22:52

    Did you see this, Scott (via Tyler)?

    http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube

    Jonathan Gruber in 2012 telling an audience that states that didn’t create their own marketplaces would be giving up the subsidies……

  38. Gravatar of Jim Glass Jim Glass
    24. July 2014 at 23:14

    “Reality is, he *is* exactly what he complains about here.”

    Bingo.

    I never imagined I’d be agreeing with MF about anything, but a Yglesias can make it so.

    Well, Mises and Keynes agreed about Chartalism.

    How much is Yglesias exactly what he is supposedly complaining about?

    Well, think how easy it would have been for him to check on his ideological beliefs empirically by looking up what the 9-0 and 5-4 decision numbers actually are. He could have Googled it in five seconds. (And at Vox, isn’t that his *job*) “Hey, unanimous decisions have risen to the highest rate in 70 years!” (Since so few people know that or would believe it, especially people in Yglesias’s own orbit, maybe that could be good story for Vox? No.)

    Now check his bogus follow-up ‘logic’: His premises being his false belief that the Court has been more divided than ever (instead of the most unified in 70 years), and that the Court simply chooses the cases it wants to hear (not having a clue how cases get to the Court) his conclusion is that the Court is intentionally choosing divisive cases! QED!

    (“rather than to rule on questions where there is broad consensus” — leaving open the curious questions of (1) how issues on which there is broad consensus manage to get litigated all the way to the Supreme Court, and (2) whether the Supreme Court best serves the polity by using its limited resources to rule on what everyone already agrees on, or by settling, you know, open disputes that actually need to be settled — like conflicts between appeals courts.)

    He’s wrong within wrong there — but I wondered if a quick Google would also show his errors on the changing type of cases getting to the Court and their expected effect on divided opinions. Sure enough, my very first search on “Supreme Court unanimous” had produced Volokh

    The degree of unanimity on the court is even more remarkable given that the court continues to accept certiorari in a smaller number of cases. Thirty years ago the court might decide 150 cases per term. This year there will only be 73 cases decided after oral argument.

    As the court’s docket shrinks, the cases that remain tend to present the most difficult legal issues. This court rarely reaches out to accept certiorari petitions, focusing its efforts in areas where there are genuine circuit splits. And if issues have split lower appellate courts, they are more likely to provoke disagreement on the High Court. Nonetheless, we see a court unanimous in the judgment over 60 percent of the time.

    How more wrong could Matty be in such a short space? He got how the court takes cases wrong — apparently unaware of appeals court conflicts — and the shift in kind of cases wrong, and the probable effect of this shift on the number of divided opinions wrong, and of course “the remarkable degree of unanimity” of the court, in spite of that probable effect, utterly wrong.

    All because he wouldn’t do one little Google search, investing maybe one minute, to fact-check his beliefs. (Maybe even try reading a legal blog a little bit before lecturing on law? Possibly even one like Volokh, with a slightly different ideological slant than his own?)

    Hey, *why* would he want to fact check his own beliefs? He knows what he believes and has built his logic of further beliefs upon it. See all the above. It would be some effort to change all that!

    It’s others who are so ideologically committed that they don’t fact check their beliefs! Or read contrary sources. Shame on them! Right, Matty? Shame on them!

    OK, I’ve given some hints … if anyone asks me outright, I’ll say what I really think of the guy.

  39. Gravatar of Jim Glass Jim Glass
    24. July 2014 at 23:20

    As to Scalia, let’s be better than Matty — and be open to what Scalia says on a subject by listening to him actually say what he says, instead of ‘knowing’ what he says from the Wapo chat columns via Matty or Huffpo or Bill Maher, DeLong, Harry Reid or somebody else who’s not Scalia.

    Here’s the CSPAN video of Scalia talking on Constitutional Interpretation, which JNCU referred to.

    http://www.c-span.org/video/?185883-1/constitutional-interpretation

    If there’s any deficiency in that notably resulting from his not reading enough of the NY Times, let’s discuss it.

  40. Gravatar of Jim Glass Jim Glass
    24. July 2014 at 23:29

    So the Supreme Court is becoming increasing politicized,

    I hope we’ve put that canard to its final rest.

    just like everyone else. Is that bad? Let’s just say it means we are becoming more like Venezuela.

    Fear not — for who is “we”?

    It sure is not me and the solid majority of the American people. Gallup and the other pollsters show that *fewer* people today identify with the political parties and their ideological issues, and more people are politically independent, than at any time since they started asking the question 50+ years ago — which means *ever*.

    In my own memory: Crowds outside the White House for two years chanting: “Hey, hey, LBJ, how many kids did you kill today?” … soldiers shooting down students on campus … annual race riots in inner cities … campus riots, protests, takeovers and closures … domestic terrorists (not foreign terrorists) bombing buildings, including one two blocks from where I live in Manhattan, — the Weather Underground, SDS, etc … Spiro Agnew as Nixon’s life insurance policy … etc. etc. etc.

    Pick any other time in US history: Rep. Preston Brooks of North Carolina beating Senator Charles Sumner of Massachusetts very nearly to death on the Senate floor — then being overwhelmingly re-elected as a state hero for doing it (that’s partisanship!) … The sitting Vice President of the USA shooting the recent Treasury Secretary and his current fierce journalistic critic dead, then returning to preside over the Senate.(Cheney shot a friend, slightly, by accident — if he’d killed Krugman he couldn’t have returned to preside over the Senate) … any other time you want. The *people* were far more partisan than today.

    After remembering all that, *now* we are turning into Venezuela?

    Today the great masses of American people are more fat, dumb and happy; er, hefty…; er… fat, content and politically apathetic than ever before. True fact. The ratings of any “contest” TV show or football game dwarf the ratings of all the politically partisan cable networks combined.

    It’s not “we” who are polarized, it is the *parties* that are increasingly polarized, which is basically a return to pre-WW II normalcy — and that’s largely being driven by the increase in direct democracy. The smoke-filled rooms, where bosses gave party hacks jobs on the basis of their being able to get things done, have been replaced with primaries where the *few* militant outside extremists in both parties have ever-more disproportionate power to purge their moderates who don’t pass the ideology test.

    Though, hey, party bosses and smoke-filled rooms were bad, and more direct democracy is good, right?

    But again, it is *not* “we”, the people who are growing in partisanship, we are less so than ever.

    It is *them*, the parties and their activists who are — and their minions in the press who personally benefit from it, who sell sell sell this false idea (like Matty does).

    Speaking of such selling jobs, take a look at who actually cared about Piketty’s book. It certainly wasn’t “America”. That huge splash it supposedly made was in a pretty small pond.

    Just one example.

  41. Gravatar of Morgan Warstler Morgan Warstler
    25. July 2014 at 00:42

    Scott, sorry buddy, the science is quite clear here.

    Conservatives are far more able to understand and explain liberal positions. If you disagree it’s time to update your priors. Moreover, it WRONG for you to equivocate and pow both houses.

    If you or I took a test that was “what does MattY think and why” and his took one about us…. we’d all agree happily drinking beer, that you and I did better.

    Jon Haidt’s research doesn’t say conservatives don’t feel what liberals feel, it says clearly, we FEEL IT EXACTLY, we just also feel other stuff too.

    If i turn off 3 of your 6 senses, your other ones will get stronger, but you are in no way shape or form a better reporter of what the hell is going on.

    Morality is as “genetic” as sexuality. it can be reprogrammed, but it takes a MASSIVE amount of new life experience to rewire your brain. Think 10 years in a mens prison of nights with your brain rewiring to get turned on by men.

    https://medium.com/@morganwarstler/is-liberalism-a-handicap-part-ii-801a2aacf6ce

    What can do that?

    Technology.

    Mark Twain had this thing about traveling being the thing that raises empathy and reduces fear of new ideas.

    In 15 years time, the Internet has turned every conservative into a world traveller, so like 10 years in prison, we have gay rights and legalized drugs.

    Liberal’s lack a strong sense of concerning themselves with cheating when worrying about fairness.

    Again technology, this time Data Darwinism, productivity analytics and reputation trackers is fundamentally altering Liberal moral foundations, giving them day in day out overwhelming proof that “that son of bitch is lazy!”

    Their brain, like their conservative opponents are being rewired.

    Technology makes everyone a Libertarian.

    Rejoice.

  42. Gravatar of JNCU JNCU
    25. July 2014 at 00:59

    Glass

    Thanks, just perfect.

  43. Gravatar of Nick Nick
    25. July 2014 at 03:29

    Travis,
    As far as I can tell the market has totally shrugged in response to Halbig. Broad Healthcare ETFs underperformed the S+P significantly and briefly from around the 14th-18th, mostly due to a big drop in biotech that happened to coincide with the Feds comments on overstretch valuation in biotech, but has made up all of that ground since Halbig (again due to a comeback in biotech). So at first blush it would appear that 0% of this fluctuation has to do with Halbig.
    Obviously the Halbig decision might be ‘surprising’ in a news cycle sense but utterly expected in the market. I saw Rich Lowry on the Mcglaughlin group last week guarantee what the Halbig decision would be and when it would come down, for example.
    However if the market ‘discounted’ Halbig at some earlier time it doesn’t appear to have mattered much, since large insurers have kept pace with or beat the s+p over a variety of recent time horizons.
    Of course, who knows? Maybe today’s the day the dam breaks.

  44. Gravatar of Vivian Darkbloom Vivian Darkbloom
    25. July 2014 at 03:56

    I’m not sure whether the Supreme Court is being “politicized”, but I’m pretty darn sure that a lot of folks not on the Court are trying there best to make it so.

    I think the “politicization” it is mostly coming from sources *outside* the court and ironically the pressure comes mostly from those same folks who claim the Justices are being “partisan”. Inside the court, despite obviously being human with human biases, the Justices have, I think, mostly judged cases on the basis of what the law is, i.e., have respected and followed the law and precedents as they honestly understand them. The fact that they are human should be obvious.

    The perception at least, that the Court is the result, I think, of:

    1. The increase of attention by *politicians* who appoint and nominate persons to the court as to the nominee’s perceived “legal philosophy”, party affiliation and perceived sense of “loyalty” to those affiliations. The pubic is largely lined up in a predictable partisan manner behind them on this (witness recent articles by liberal media pundits arguing that Bader-Ginsburg should resign to make way for a younger “progressive” candidate). And, that’s not “politics”? These are the same folks that complain the court is filled with partisans! If your criterion for appointing and approving these folks in the first place is not their legal expertise and acumen but other irrelevant factors (such as politics, sex, race, etc), then I find it a bit rich to later bemoan the alleged “politicization” of the court.

    I’m surprised that folks like Scott are not more sensitive to the causes of this given the obvious analogy to the Federal Reserve.

    2. Even after these Justices are sitting on the court, recently they have been subject to enormous pressure *from the outside* to judge cases in a manner that partisans think they should. If individual Supreme Court Justices are partisan and this is infecting their legal judgements, then that’s because nearly everyone wants them to be that way and are constantly insisting on it from the peanut gallery! Folks like Yglesias, Klein, Breitbart and other blowhards are exactly the problem.

    3. A terrible development in this whole thing was when the President of the United States got up before the nation in the State of the Union address and chastised the Supreme Court (well, indirectly, a majority of individual Supreme Court members) for not ruling on a politically sensitive case they way he thought they should (without even attempting to give reasoned and cogent *legal argument* as to why he thought they were wrong). If media pundits like Y want to bemoan the politicization of the court, I suggest that might have been a better time and place to start.

    4. It doesn’t really bother me that Scalia does not read the NYT (if that is, in fact true). What would a Supreme Court Justice gain in doing his or her job on the bench from reading that or the WSJ, for that matter? To gain a better “political perspective” from which to render political judicial opinions? I’d much rather he or she stick to the literature that is truly relevant to the job. The same, by the way, goes for the FOMC. I, for one, don’t want Supreme Court Justices learning about the Constitution or the rules of statutory construction by reading a journalist’s editorials. Most of the stuff one reads in the media is designed to move public opinion so that opinion can, in turn, create pressure on the court. They are not trying to sway Supreme Court members on the finer points of the law. The point is to use public opinion as a bludgeon.

    5. Rather than make a litmus test of which papers one allegedly reads (or does not read), I would suggest a better test of partisanship with respect to complicated legal issues like the one in Halbig would be: Does the person taking a stand on that case present any actual legal or logical argumentation for the conclusory opinions put forward? Or, is the person making uninformed conclusory judgements without having first read the cases, etc., necessary to make such an *informed legal judgement*? When challenged, one can always go try to find support after the fact (much like the after-the-fact posturing that has likely taken place in the case at issue here). Rarely do I read anything on blogs (particularly by non-lawyers) that are the results of such effort. Reading someone like Yglesias or Klein or Breitbart (if this is one’s idea of “considering both sides”) is not exactly doing one’s homework and those are not exactly the kind of “filters” that contribute to unbiased conclusions. Why anyone would want to form a “balanced” opinion on a legal case by reading those folks is entirely beyond me. Or, is the idea that one should have a “balanced” *political* view of the work of an institution that is not supposed to be political in the first place? Rather, I suggest one go to the text of the opinion and read and judge for oneself. It’s all online these days, so you don’t have to search the stacks anymore for the Supreme Court Reporter. As others have pointed out, it is the apex of ignorance for Yglesias, Esquire to bemoan the fact that the Supreme Court is increasingly focused on cases that are “divisive”. Newsflash for Yglesias: that’s their job! Believe it or not, cases are selected for review, and have always been so, primarily to resolve *divisions* among lower courts. If cases coming up to the Court are “political” it is not because the Supreme Court has made them so—it is because they were politicized by the politicians and the media before they got there. Now, I’ll wager a bet that if only one of the Courts of Appeals struck down the PPCA and the Supreme Court refused certiorari, we’d be hearing the complaint from the same corner that the Supreme Court is *refusing* to hear “divisive cases”.

    6. Here’s my advice: If you don’t want to have a politicized Supreme Court, then leave them alone to do their job and insist the other branches of government do the same. If you want to make a constructive contribution to their work, write an amicus brief, an academic article, or at the very least, get some legal argumentation and logic to raise the bar on the too-casual punditry going around that’s for some reason being taken too seriously by too many.

    7. I guess the legal profession and the practice of law is more accessible to amateurs than, say, the far more difficult science of economics or quantum mechanics. That’s why everyone can have an opinion and not be shy about expressing them even when they are completely uninformed and totally devoid of any attempt at legal precedent, analysis or logical argumentation. On the other hand, if you want to have a hand in directing monetary policy, you’d better do your homework and have a Phd in macro economics, with a concentration on monetary, rather than say, micro or for God’s sake, community banking. Funny, how seemingly “objective” people tend to have radically different views when making occasional forays into other professions.

  45. Gravatar of TravisV TravisV
    25. July 2014 at 04:42

    Dear Commenters,

    See what Nick wrote above.

    Is this a big deal? Is it HUGE, as David Henderson wrote three days ago?

    No.

  46. Gravatar of Vivian Darkbloom Vivian Darkbloom
    25. July 2014 at 05:04

    Over at Marginal Revolution, Tyler Cowen linked to the following video in which Jonathan Gruber in early 2012 clearly outlines what he perceived to be the politics behind forcing states to open up exchanges and opines that the failure to open an exchange would result in loss of tax credits to that state’s residents (while at the same time acknowledging that the feds could step in to set up an exchange).

    http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube

    Start listening at about 31:20 of that video.

    Jonathan Gruber is not, as far as I know, a member of Congress, nor is he a legal scholar. However, I understand he was a consultant to the drafters and a strong supporter of that bill. His opinions should be irrelevant to the legal debate, but I think quite relevant to the debate here as to why we should be less attention to “public intellectuals” on questions such as this one. Not surprisingly, now that the stakes are clear, Gruber is taking the opposite position. Just in case anyone has any doubt as to where the “politicization” of legal issues like this one have their origins. At the very least, it has entertainment value.

  47. Gravatar of Benny Lava Benny Lava
    25. July 2014 at 05:11

    Scott, a very thoughtful post. Thanks for sharing. Around 2008-2010 I had to curtail a lot of my political reading because it started to devolve into mere talking points repetition. I’m sad to see that tend continue.

  48. Gravatar of J Mann J Mann
    25. July 2014 at 05:32

    Thanks Jim – it literally never occured to me that Matt could be so wrong in his particulars.

    Here is my prediction: confronted with the apparent fact that by Matt’s measures, the court has been growing LESS contentious since 2009, Matt will decide that it’s no longer a valid test, while Scott will update his priors slightly, but will continue to (1) believe in widespread division based on other observations and (2) generally accept Yglesias statements of fact without double-chekcing them. (I’m more confident about Matt, though).

    http://www.usatoday.com/story/news/politics/2014/06/22/supreme-court-unanimous-decisions-roberts/10900049/

  49. Gravatar of TravisV TravisV
    25. July 2014 at 05:36

    Off-topic.

    Last year, remember everyone arguing that with the taper, U.S. interest rates had nowhere to go but up?

    Hmmmmmmmm……….

  50. Gravatar of Dan W. Dan W.
    25. July 2014 at 06:04

    The intent of socialized health care is for people to receive free health care, the politicians to receive the credit and for someone else to pay for it. The lack of clarity in the law of who pays and how much is a feature and not a flaw. Otherwise it would be obvious that the premise of free health care is a lie.

    As for the matter of law it is my opinion that liberty can only be sustained as long as the law is equitable and not arbitrarily applied. If it is decided that laws can mean whatever government wants them to mean then there is no law. What accountability can those who make the law have if it can be decided after the fact the law means something other than what the text of the law was when it was passed?

  51. Gravatar of J Mann J Mann
    25. July 2014 at 06:18

    This is pretty brutal if true:

    Supposedly, there’s 2012 video of health care expert Jonathan Gruber arguing that states need to set up their exchanges because if they don’t, they don’t get subsidies. (In 2012, Gruber explained that his presentation was made up of “verifiable objective facts.”)

    But by 2013, Gruber had flipped – that same idea was now “nutty” and “every single person” agreed that it was a typo.

    http://reason.com/blog/2014/07/24/watch-obamacare-architect-jonathan-grube

    “What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits—but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges. But, you know, once again the politics can get ugly around this.”

  52. Gravatar of Brian Donohue Brian Donohue
    25. July 2014 at 06:20

    Jim Glass on fire!

    Morgan, interesting as always.

    Travis, I’m picking up what you’re laying down.

  53. Gravatar of TravisV TravisV
    25. July 2014 at 06:41

    Morgan is always interesting!

    And he often makes a lot of sense! But sometimes he’s a little too abstract (particularly when he roots for tight money)……

  54. Gravatar of ssumner ssumner
    25. July 2014 at 06:44

    Let’s see, the split on the Supreme Court is not about politics, but rather methods of judicial interpretation. That means about 1/2 the time the conservative justices will line up on the liberal side of an issue, and vice versa from the liberal justices.

    Come on people, I wasn’t born yesterday.

  55. Gravatar of J Mann J Mann
    25. July 2014 at 06:48

    Wow, I didn’t predict that. That’s like the opposite of Bayesian updating – Yglesias is correct because he’s correct, even in ALL of his facts are wrong.

    (I kid! I am sure I am misunderstanding you, Scott, but let me assure you that I am misunderstanding you very deeply.)

  56. Gravatar of Nick Nick
    25. July 2014 at 06:49

    OT but anyone want to comment on the new rules for institutional money market funds? I usually consider this the most under discussed part of post-crisis navel gazing in the mainstream, but maybe I just don’t read he right people. I puzzle a lot over IOR and breaking the buck on money market funds. Even if we take it for granted that ngdplt could have allowed us to bypass this element of the crisis, it remains a troubling incident, yeah?

  57. Gravatar of Vivian Darkbloom Vivian Darkbloom
    25. July 2014 at 06:54

    Scott,

    If 60 percent of the cases are unanimous 9-0, that’s already more than 50 percent. Or, it perhaps means that in those 60 percent of cases, there is no “liberal or conservative side”. Nonetheless, even not counting the remaining 40 percent, wouldn’t you call those 60 percent non-political? How does that compare, say, with the split in Congress or the FOMC?

    What is your statistical analysis?

  58. Gravatar of Vivian Darkbloom Vivian Darkbloom
    25. July 2014 at 07:01

    And, how does this establish, was Y claims, that any such divisions are *increasing*?

  59. Gravatar of J Mann J Mann
    25. July 2014 at 07:35

    Vivian, tautologically, the “conservative” judges vote on the “conservative” side of splits more often than they vote on the “liberal” side, and vice versa.

    That begs the question of why the justices tend to vote on those sides of the splits. Scott assumes its because they prefer conservative or liberal policy outcomes.

    The problem is that Scott’s working outside of his area of expertise (I think), so we almost have to start at the beginning.

    Legal realism is a black hole at a certain point.

    I think Scott believes that *HE* thinks that we should give administrative agencies latitude to reform statutes to comply with Congress’s apparent intent primarily because he thinks that’s good policy, but that most other people have an opinion on intent vs expression that’s much more heavily based on their subconsious biases. His evidence for this is that in this particular case, his preferred rule militates against his policy preference.

    To which I say: I wasn’t born yesterday either. What’s more likely – that Scott has a personal benefit associated with his preferred rule that he hasn’t disclosed or that he’s the world’s only honest man?

  60. Gravatar of J Mann J Mann
    25. July 2014 at 07:37

    (I should also say that when I try to represent Scott’s beliefs, I have almsot always been importantly wrong, so on second thought, I probably should just get back to work.)

  61. Gravatar of J Wynn J Wynn
    25. July 2014 at 08:15

    The reason conservatives might not feel the need to read progressively biased publications like the NYT or WaPo is because –on big issues– they are already stewing in the progressive POV. If you listen to NPR, or watch any of the network/public news shows or CNN will hear several renditions of the progressive arguments.

    Even if a conservative only listens to conservative outlets, she will hear the arguments of progressives presented so they can be refuted (not the ideal method, but still they will hear them).

    Progressives are far more unaware of conservative/libertarian POV because you have to look for them…or watch Fox News or FBN or listen to Rush Limbaugh: actions which progressives consider *beneath* them.

  62. Gravatar of Tom Brown Tom Brown
    25. July 2014 at 10:52

    Scott, a bit O/T here, but I thought it’d be fun to modify the Richard Feynman quote that Noah Smith recently posted to attempt to make it apply to economists. Here’s the result:

    “It’s a kind of integrity amongst economists, a principle of economic thought that corresponds to a kind of utter honesty–a kind of leaning over backwards. For example, if you’re evaluating a hypothesis, you should report everything that you think might make it invalid–not only what you think is right about it: other causes that could possibly explain your results; and things you thought of that you’ve eliminated by some other set of results, and how they worked–to make sure the other fellow can tell they have been eliminated.

    Details that could throw doubt on your interpretation must be given, if you know them. You must do the best you can–if you know anything at all wrong, or possibly wrong–to explain it.”

    My question to you: does the above sound laughable? *Should* it sound laughable? Should economists spend 40% of their time publicly trying to poke holes in their own hypotheses, and publicly musing about all that might be wrong with the way they’ve interpreted the evidence? Should they be “leaning over backwards” to “cast doubt” on their own ideas?

    Perhaps this does happen all the time, but I’m just your average ignorant layman who reads econ blogs, not journals, so perhaps I’m looking in the wrong place.

  63. Gravatar of JNCU JNCU
    25. July 2014 at 13:01

    Yes, hard to believe, but the issue is judicial interpretation not politics. I used to believed the same until I started studying constitutional law.

    Obviously justices are humans and they will deviate, but the core issue is still interpretation philosophy.

    Conservative politicians chose textualist for the SC because textualism limits what government can do by its very nature. It limits it to the text. Which is what conservatives want.

    Good example, Scalia has said, against his political views, that base on the text of the e Constitution states can marry people of the same gender or not. Not on the text, so no way for textualist to decide against it.

    Would political conservative like that? No, but it is a consequence of textualism.

    So when talking about the SC, the labels should be textualist against “outcome preference.”

    “Outcome preference” can be political conservative or liberal. But that is a different topic. Alito is more on the conservative “outcome preference” camp but not as obvious as the lib.

  64. Gravatar of dwb dwb
    25. July 2014 at 14:22

    “the Supreme Court is becoming increasing politicized, just like everyone else”

    First, this is downright false and shame on Yglesias (I don’t read him much anymore).

    Lets go over to scotusblog stat pack (here: http://www.scotusblog.com/reference/stat-pack/ )
    and find the “Justice Agreement Table” or 2013 term (OT13).

    Wow, look at that, for OT13 (most recent term): Kagan fully agrees with Alito 67% of the time. Breyer fully agrees with Alito 56% of the time. Breyer “Agrees in Full, Part, or Judgment Only” with Alito 77% of the time, and only disagrees 23% of the time. Sotomayor only disagrees with Alito 25% of the time.

    I see significantly more agreement than disagreement. Where is the alleged partisanship? Oh wait, the only cases you hear about in the media are the sensational ones, usually where there is a split.

    How many 5-4 cases where there in OT13? 14% (see “5-4 cases”), or ten. TEN! Wait someone thought it was more than 10? Of course, if you only read the headlines. And, of those 10 cases, there were 6 different alignments of justices, and a “conservative victory” 40% of the time. Wait, what? conservatives only won 40% of the 5-4 cases?

    Of the 73 decides cases (See “Strength of the Majority”) 48 were 9-0, 2 were 8-1, and another 7 were 7-2.

    78% of the decided opinions were decided by a 7 justice majority or more.

    The Obama administration has been shot down 9-0 a completely ridiculous 20 times (including the recess appointments case), so much for the liberal saviors on the court. Not even one vote, twenty times. {where justices often disagree more is in how they reach the judgement, so Obama got creamed in the recess appointments case, but there were really two legal analyses that arrived at the same conclusion).

    Now, as for Halbig, I have not been particularly persuaded by either the 4th circuit or the DC circuit opinions. As is often the case in legal analysis, people get lazy and think that “establish an exchange” is the opposite of “failure to establish an exchange.” Well, no. Perhaps in math or logic, not in Law. These are defined terms in the statute, and there are possible scenarios where a state has not “Established an Exchange” nor “Failed to Establish an Exchange” falling in neither category. Defined terms in statutes which are supposed to be opposites but end up leaving gaps often leave exploitable “loopholes” and grey areas.

    Supreme Court does not typically take one opinion or the other, they use each as a starting point (which is why they typically do not take cases until there is a clear circuit split). [Which is what smart people do: "Only after I read both sides do I have enough information to have an informed opinion."]

    Even in the 5-4 cases (like the Illinois Union case this year Harris v Quinn) they rarely go as far as the right (or left) wants them to.

    My educated prediction is that no one is right. If there is way to find a loophole (I think there is) and split the baby like Solomon, strike part, while leaving some intact, so everyone is unhappy, I predict they will find it. There is an 85% chance it will not be 5-4, so I’ll bet against that.

  65. Gravatar of Jim Glass Jim Glass
    25. July 2014 at 14:26

    A bit more on the level of polarization in America — with a Krugman bonus!…

    By coincidence I just came across presidential historian Jeremi Suri describing the political scene of 1970 when Nixon made his trip to meet with the crowds of protestors at the Lincoln Memorial…

    ( http://www.c-span.org/video/?317357-3/presidential-illness — but apart from this, a pretty boring panel). Quoting:
    ~~~~~

    “Even at 4am hundreds, perhaps thousands of people filled the Lincoln Memorial to protest the war in Southeast Asia. This was two years after the assassinations of Martin Luther King Jr and Robert Kennedy… Convulsive protests were underway on campuses across America.

    “After three years of rising public unrest, what many had seen as the ‘unraveling of America’ — look at the titles produced by authors like Arthur Schlesinger and others during this period, used time and again — in 1970 it had all only become worse. This was a time when the war at home was truly becoming a war at home.

    “In May 1970, in an incident my undergraduates still cannot fathom, National Guard soldiers entered the campus of Kent State University and killed four student protesters. Eleven days later, the tragedy repeated itself at Jackson State College, where National Guard soldiers killed two and injured 12 student protestors, an event that gets much less attention…

    “The country appeared to be cracking apart, and that is not an exaggeration. Students could not go to class. Some people could not go to work. In early May 1970 more universities were shut down than open. Those still open operated under siege mentality…

    “At this moment soldiers from the Third Army entered Washington DC, for the second time in three years — they had also entered after the assassination of Martin Luther King Jr — and positioned a ring of buses around the White House to help protect the President against hostile crowds that the army feared even it could not control…”
    ~~~~

    I remember all that, and a lot more — it got me out of class! But does anybody under age 40 remember ever seeing political partisanship anything like that?

    Yet people claim political partisanship now is worse than ever???

    Anybody who tells you that is either selling you bill of goods for his own benefit — as do all the activists and punditcrats who can hardly gain by saying, “you know, things really are a lot better now than they used to be!” — or has already bought that bill from such a seller.

    Speaking of which, all this brings to mind one of my favorite Krugman Whoppers of all, when to Kevin Drum he lamented the loss of those very same Nixon good old days described above…

    Is this the same country that we had in 1970? I think we have a much more polarized political system, a much more polarized social climate. We certainly aren’t the country of Franklin Roosevelt, and we’re probably not the country of Richard Nixon either, so I think we have to take seriously the possibility that things won’t work out this time.

    If only the Ohio National Guard could come back to save us!

    http://www.washingtonmonthly.com/archives/individual/2003_09/002152.php

    (This one’s a good read all the way through — PK in the time capsule. Compare Bush-edition PK to Obama-edition PK.)

    PS: Krugman’s thinking about everybody else’s opinions being so much more polarized today, very likely explained — http://psycnet.apa.org/psycinfo/2012-10798-001/ Doubtless applies to a whole lot of other crusader activists too, in our actually less polarized than ever real world.

  66. Gravatar of ssumner ssumner
    25. July 2014 at 15:33

    Vivian, I’m still trying to figure out your 7 point comment:

    1. You seem to think I claim I’m qualified to serve on the Supreme Court. I don’t even think I’m qualified to serve on the FOMC. So where is my hypocrisy?

    2. You seem to think that Matt Yglesias and I are the cause of bad decisions at the Supreme Court. If we’d just keep our mouths shut and minded our own business the experts would be able to do their job. But the distraction of TheMoneyIllusion makes that impossible.

    Is that about it?

    BTW, It doesn’t bother me in the slightest that Scalia doesn’t read the NYT. I never criticized him for not reading it.

    J. Mann, You implied I said;

    “Yglesias is correct because he’s correct”

    And where did I say that? Are my commenters on drugs today?

    You said;

    “What’s more likely – that Scott has a personal benefit associated with his preferred rule that he hasn’t disclosed or that he’s the world’s only honest man?”

    Wow, since I don’t have a personal benefit at stake, and since I oppose ACA, I guess you are calling me the world’s only honest man. Thank you. But alas it’s not true, there are more honest people out there.

    Tom, No one does that in any science, but maybe they should.

    Nick, I did a post on that a while back.

    Jim, The issues were much more serious back, yes, but the split was not on party lines—lots of liberal Republicans and conservative Dems.

  67. Gravatar of Ken Ken
    25. July 2014 at 18:22

    The phenomenon Yglesias refers to is not new. I recall clearly the Bush-Gore recall battle in Florida. Seemingly every day a new, highly technical legal issue came to light. And, shockingly, 100% of conservative commenters agreed with the position favoured by the Bush camp on these technical issues 100% of the time, while 100% of liberal commenters took the opposite view.

  68. Gravatar of ssumner ssumner
    26. July 2014 at 07:34

    Ken, Yes, in 2000 all the liberals stood for “states rights” in the election, and the conservatives stood for federal power. I’m sure than had nothing to do with the fact that Bush was leading when the counting stopped. It must have been their “judicial philosophy.”

  69. Gravatar of Paul Zrimsek Paul Zrimsek
    26. July 2014 at 09:29

    Bush v. Gore is actually not that good a showcase for the “it’s all politics” theory, considering that the liberal Breyer and Souter signed on to the decision’s 14th Amendment rationale, while the conservative Kennedy and O’Connor weren’t having any of Rehnquist’s Article II argument.

  70. Gravatar of Isaiah Isaiah
    26. July 2014 at 18:18

    Responses to ACA and Legislative Intent + Matt’s Belief in Political Court

    Legislative History and Intent

    It really doesn’t matter what Senate Staffers thought the ACA authorized or what even Senators or Congressmen thought was being authorized. They lack power in their individual capacity. What matters is what the corpus of Congress thought, of which the best evidence is the law itself. While contemporaneous statements might be helpful, they are very easy to manipulate. Maybe Congress thought the law was authorized subsidies for federal exchanges, a la the Senate staffers. Or maybe they thought the exact opposite. The opinion that counts is Congress’ opinion, not the opinion of staffers.

    Scalia’s best work has been dismantling the belief in legislative history, pointing out that the loser’s history often ends up in legislative history. After all, if you want X to happen and have the votes for it, then make a statute requiring X to happen. Do not write Y and then explain via legislative history that Y means X.

    Moreover, given political cycling theory we know that the outcome of a bill is made up of numerous compromises. Contemporaneous remarks by a bill’s leader regarding the bill’s purpose generally do not incorporate those changes. The reason is that the bill’s sponsor starts out with idea XYZ. In order for the bill to happen, he must make it WXY. But he will still explain it as XYZ, because that is what his constituents want to hear or that is what he wants a court to interpret the statute as after the fact. But given cycling, the bill never would have passed Congress as XYZ. It therefore would be incorrect to change the bill from WXY to XYZ judicially, because the intent of Congress as a body was WXY.

    Once more, the best evidence of Congressional intent is the only thing Congress as an institution can offer: the statutes (and early versions) themselves.

    Divided Court:

    Some above have demonstrated the falsehood of Matt’s claim that the court is more divided currently. One does wonder if people like Matt only read SCOTUS Blog when decisions like the ACA or Hobby Lobby come down.

    Even if Matt were true, he misses a fundamental point: the institutional framework of the SCOTUS naturally creates 5-4 decisions. SCOTUS generally sits as an appellate body. Moreover, they can choose which cases they wish to hear. They generally choose to hear cases when there are circuit splits. Circuit splits generally only occur when the law is murky. Otherwise, smart appellate judges can rather easily apply the law. When is the law murky? When SCOTUS cannot issue strong opinions because of disagreements amongst the Court. So, the opinions that are easy, i.e. 9-0 generally never get to the Court because they settle them with clear legal statements. It is the pathologies, the hard areas of law that are constantly being sent up to the SCOUTS. And because of the 5-4 nature of decisions, it isn’t unreasonable for appellate courts to conclude that slightly different facts could lead to different outcomes.

    So, 5-4 or 6-3 decisions are natural. They aren’t a symptom of political judging, but instead the result of natural appellate litigation within our system.

  71. Gravatar of Mike W Mike W
    27. July 2014 at 08:19

    “You can usually tell who has the better argument. In this case I thought the liberals did…”

    I respect your reasoning and would like to know what or whose arguments you found persuasive. The rest of this discussion just seems to be intellectuals posing.

  72. Gravatar of ssumner ssumner
    27. July 2014 at 12:51

    Paul, In that case, it’s all the more amazing that everyone “just happened” to vote in a way that supported their party. What is 2 to the ninth?

    Mike, See my newest post on this subject (Mea blog-o)

  73. Gravatar of J Mann J Mann
    29. July 2014 at 06:30

    Scott, sorry if I got more confrontational than usual, and if I was as about as unclear as usual.

    I meant to say that after Jim Glass pretty convincingly demonstrated that many of the supporting facts in Yglesias’s argument were wrong, I expected to see a Bayesian update of your confidence in his conclusion.

    I took “I wasn’t born yesterday” to mean “grow up, it doesn’t matter if the facts in Yglesias’s argument that the justices are partisan are false, because we all know the justices are partisan.”

    In light of your response, I was almost certainly misinterpreting you. Sorry for leaping to conclusions, then expressing them unclearly. ;-)

  74. Gravatar of Patrick R. Sullivan Patrick R. Sullivan
    29. July 2014 at 07:36

    There were three votes in the Supreme Court on Bush v. Gore. The first was 9-0, the second was 7-2, both in favor of Bush.

    It was only the third, where the majority said, in effect, Enough, this is over!, that we got the 5-4 partisan split.

    I make that 21-6 for Bush.

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