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Why I see SCOTUS packing as inevitable

This is Joseph.

I have, for a while, held the opinion that the US supreme court is almost certain to be packed. One thing that needs to be clear is that the US supreme court is, at least partially, a legislative arm of the government. After all, no law can stand in the United States unless it can pass judicial review. Like a lot of things, judicial review sounds simple until you put it into practice. 

Just look at how complicated the history and interpretation of the second amendment is.  Now imagine trying to apply this to individual cases. This is ok if there is a lot of judicial restraint but activist judges can quickly make things very complicated. 

Now look at recent cases like SB8 which seem to be tilted towards allowing certain, less favored, constitutional rights to be suppressed. Or the affordable care  act and Medicaid expansion, which is nearly a decade old and still seems questionable. Even Bush versus Gore pushed important boundaries. 

Now some of this is older law. What has changed? I argue the following

1. Merrick Garland showed that the senate majority would keep a seat open for a year for a more favorable president (and if they will do it for a year then why not three? If your answer is shame look at point two)
2. We also saw the senate speed a candidate through in the last two months of a congressional term a candidate on a 100% party line vote. 
3. We also saw a strategic retirement to bolster the youth of the Republican justices, meaning a one-term president appointed one third of the court, people like to serve for decades. 
4. With a narrow senate majority and a democratic president, the 83 year old senior liberal has ruled out senior status. 
5. With the 6-3 court, we now have a part of the court (5 members) who appear to be abandoning a slow and cautious implementation of the conservative agenda and instead are becoming firebrands. 

Point 5 is probably the most controversial but see what the Republican appointed Chief Justice has to say about Whole Women's Health versus Jackson:

The clear purpose and actual effect of S. B. 8 has been to nullify this Court’s rulings. It is, however, a basic principle that the Constitution is the “fundamental and paramount law of the nation,” and “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Indeed, “[i]f the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” United States v. Peters, 5 Cranch 115, 136 (1809). The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake.

To be clear, this is a George W Bush appointed conservative justice who is fine with the destruction of many cherished rights or programs of Americans on matters like healthcare and voting.  

Furthermore, the arguments against packing are so weak that they are embarrassing. Consider this one:

Term limits, by providing each president with two Supreme Court appointments in every four-year presidential term, would risk enmeshing the appointments in the presidential election cycle, further politicizing the appointment process.

It seems possible, even likely, that presidential candidates would announce their Supreme Court choices as part of the campaign, turning potential nominations into political fodder. 

Like does nobody remember these news stories?  

It is the way that these all tangle together that make me think that packing is now inevitable (just like ending the filibuster on SCOTUS nominations became inevitable when the stakes got too high). Holding seats open means that you'll get campaigning on court nominations. Loud decisions that make a big push, SCOTUS already defending themselves because they look political, and extremely long appointments mean that this will become a crisis, sooner or later. Packing is a sacred tradition in the US -- just ask why there is a North and South Dakota. 

Now could it all work out? Well, what stopped the last few crisis points. Well, Andrew Jackson decided to just ignore the supreme court, which seems like an unlikely strategy in the modern legal environment. Going into the civil war, SCOTUS was adamantly opposed to Lincoln but he ended up defusing the crisis by appointing FIVE justices (including an expansion of the court from none to ten justices -- later revised by Andrew Johnson to 7 and US Grant to 9). The court survived these court size changing schemes quite handily. The last major crisis point was FDR, where a single switched vote could matter. But that was a 5-4 court and we might already be seeing that switch with Chief Justice Roberts. 

This history is also why I am so annoyed about Breyer's retirement. If the court drifts 7-2, then it gets harder to imagine moderation on some of the more forceful decisions. CJ Roberts is hardly a friend of the left (bitter enemy is more correct) but he at least is willing to be incrementalistic and defuse confrontation with the other branches. But passing over a clean chance for a successor is mad. He is 83 and the oldest member of the court by a decade (Trump's 3 nominees are 49, 53, and 48 -- likely to be with us for 3 decades with these retirement ages). There are currently 3 retired SC judges (retired at 69, 75, and 82) -- all 3 appointed by republicans and all three strategic. The last three judges to die in office were: Ruth Bader Ginsberg (87), Antonin Scalia (79), and William Rehnquist (80). This is not an early retirement that is being suggested. 

Now consider this comment from him:

Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

And now I return to where this all began. Interpreting the law is hard and words are inherently ambiguous.  It is quite compatible for a person to both believe they serve the law first and to have a view of the law that is favorable to a particular political movement. Sooner or later this will be an issue and I suspect we'll follow the footsteps of Lincoln and Grant. 

Happy New Year's -- Little Nemo grows up

Season's greetings from Windsor McCay.

Apologies for the formatting. Copy and paste for the full effect. (I hate blogger.)

So would this be Happy Halloween een^297? *

* You do realize I just made up the number of days to Halloween, right?

Why the right to a lawyer is so important

This is Joseph.

I was talking to Mark and this video came up. One of the reasons why having a lawyer is so important is that mere civilians cannot be expected to know the subtle nuances of the law. 

One of the eye-opening moments of this video, at least for me, was discussing the consequences of the police making a mistake. The example of a mistaken identification contradicting your alibi is exactly the sort of complication that one really, really wants a trained professional to navigate. 

Here is a more complicated example via Ken White:

Imagine this scenario, based on an actual situation:

A business associate calls you and says, "my dear business associate, the shit has hit the fan; Federal Agency X is investigating Project Y we did together. Two Agency X agents are interviewing people."

"Oh coitus," says you, or words to that effect, and terminate the conversation.

Later that day, two well-dressed and polite agents of Agency X visit you. Because you despise me and want me to weep and gnash my teeth, you consent to be interviewed. At some point, they ask you "have you talked about this investigation with anyone?"

"No," you say.

They smile.

At the end of the interview, it occurs to you to ask, "Hey, am I in trouble? Do I need a lawyer?"

The agents smirk. "No," they say. "I mean, unless you lied about talking to anyone about this investigation."

See, you've fallen into a false statement trap, which I've talked about before. The feds know that you've talked to somebody about their investigation. They were probably standing next to your friend when he made that call this morning. And now you've talked your way into a felony.

This is the sort of fact that will come up in discovery and a skilled lawyer will know about. You don't need to worry about a failure of recollection or the proper interpretation of a discussion. Innocent error could easily be an explanation for the scenario above, but it becomes a felony. 

Lawyers are an important part of criminal justice and right to competent counsel is extremely important. Here are some more examples of how this can go wrong. I am not a big fan of the sociopath one, but the rest are all great examples of how unprepared discussion can go quite wrong. 

Extrapolating out of range: education edition

This is Joseph.

Matt Yglesias had a post on the effects of closing schools on learning:

I think that if at any time pre-Covid someone had suggested that regular, in-person school attendance was not that important and kids would be okay just watching video lessons and doing online work, that would have been understood as a kind of right-wing techno-libertarian crank viewpoint. Thanks to the pandemic, though, we got to find out if the techno-libertarian cranks are right about school.

It turns out that they are not. In Virginia, for example, student test scores plummeted and the racial gap in scores exploded 

And we’ve seen this basically everywhere. McKinsey and NWEA found huge learning losses concentrated in poorer kids nationwide. Texas and Indiana reported big early test score declines. A study from the Netherlands indicated that during an eight-week period of virtual schooling, students learned basically nothing on average. 

and

For years, study after study has shown that the effect sizes of education interventions tend to be really small. And when they don’t look small, they tend to be very difficult to scale up. That led some people to infer that schooling is largely pointless. But we learned during the pandemic that if you try something out-of-sample like not having school at all, the effects are actually very large. 

I think that this example illustrates two major themes.

One, which we've been discussing for ages, is that it is very difficult to extrapolate data out of the range of observation. When there is effective teaching going on then small tweaks with how it is done seem can be challenging to show as having an impact. But let us be frank -- the human species has been educating children in numeracy and literacy for (literally) thousands of years. The Lyceum and the Academy were founded before the dawn of the Roman empire. China has been using exams to evaluate qualified graduates for centuries. Now there can be possibilities to use improved technology and such, but the basic idea is old and small tweaks have been tried for (literally) millennia. 

Two, is that disruption is often not focused on the basic delivery of services. Far more common is regulatory evasion. Uber evaded taxi regulations far more than it had a new idea -- taxi companies quickly mimicked the app, the innovation that they had trouble with was the ability of Uber to classify employees as independent contractors. Financial companies often do better by finding ways to evade regulation that protect investors than just finding better investments. [EDIT: In conversations with Mark, he pointed out the precise mechanism by which education disrupters can save money: fewer students with disabilities given the ADA. While this gap is closing, it is still the case that charter schools end up serving fewer students with disabilities than traditional public schools. Insofar as there is any strategy here, this could create a perceived efficiency gap]. 

It is this second point that always worries me with education reform. There is a lot of money in education, finding a way to skim 1% off of the top would be worth billions per year. When real progress is hard because a system has already been extensively optimized then one should be suspicious of claims of important advances, especially if there is a lot of opportunity for the investment to pay off for the "innovators" involved. Taking away 1% of educational spending and inflating a few numbers might well be a easy pathway to success.

But the first point is well worth remembering -- the system, as is, is already delivering a lot of value and taking it away shows immediate and large effects that reduce outcomes. These are despite the efforts of teachers and parents to continue online. 

Or, in other words, one can innovate but always be worried about the arguments that a system centuries in the making is fundamentally flawed. It might be for some areas (e.g., computer programming is relatively new and perhaps autoshop is less related to other crafting skills than I suspect) but this is not a place where the current equilibrium is obviously easy to beat. 

The biggest problem in California right now is that we don't have enough fires

It's raining as I type this, snowing not that far from here. We've gotten lucky in the past couple of weeks and we are supposed to have another major storm before New Year's Day. All of this means that we desperately need to start planning as soon as possible for teams to go out into the forest and start some fires.

As Elizabeth Weil explains in her Pulitzer-worthy Propublica piece (which we discussed earlier here). [emphasis added]

Yes, there’s been talk across the U.S. Forest Service and California state agencies about doing more prescribed burns [a.k.a. controlled burns -- MP] and managed burns. The point of that “good fire” would be to create a black-and-green checkerboard across the state. The black burned parcels would then provide a series of dampers and dead ends to keep the fire intensity lower when flames spark in hot, dry conditions, as they did this past week. But we’ve had far too little “good fire,” as the Cassandras call it. Too little purposeful, healthy fire. Too few acres intentionally burned or corralled by certified “burn bosses” (yes, that’s the official term in the California Resources Code) to keep communities safe in weeks like this.

Academics believe that between 4.4 million and 11.8 million acres burned each year in prehistoric California. Between 1982 and 1998, California’s agency land managers burned, on average, about 30,000 acres a year. Between 1999 and 2017, that number dropped to an annual 13,000 acres. The state passed a few new laws in 2018 designed to facilitate more intentional burning. But few are optimistic this, alone, will lead to significant change. We live with a deathly backlog. In February 2020, Nature Sustainability published this terrifying conclusion: California would need to burn 20 million acres — an area about the size of Maine — to restabilize in terms of fire.

...

[Deputy fire chief of Yosemite National Park Mike] Beasley earned what he called his “red card,” or wildland firefighter qualification, in 1984. To him, California, today, resembles a rookie pyro Armageddon, its scorched battlefields studded with soldiers wielding fancy tools, executing foolhardy strategy. “Put the wet stuff on the red stuff,” Beasley summed up his assessment of the plan of attack by Cal Fire, the state’s behemoth “emergency response and resource protection” agency. Instead, Beasley believes, fire professionals should be considering ecology and picking their fights: letting fires that pose little risk burn through the stockpiles of fuels. Yet that’s not the mission. “They put fires out, full stop, end of story,” Beasley said of Cal Fire. “They like to keep it clean that way.”

Why is it so difficult to do the smart thing? People get in the way. From Marketplace.

Molly Wood: You spoke with all these experts who have been advocating for good fire for prescribed burns for decades. And nobody disagrees, right? You found that there is no scientific disagreement that this is the way to prevent megafires. So how come it never happens?

Elizabeth Weil: You know, that’s a really good question. I talked to a lot of scientists who have been talking about this, as you said, literally, for decades, and it’s been really painful to watch the West burn. It hasn’t been happening because people don’t like smoke. It hasn’t been happening, because of very well-intended environmental regulations like the Clean Air Act that make it harder to put particulate matter in the air from man-made causes. It hasn’t happened because of where we live. You don’t want to burn down people’s houses, obviously.

The term "controlled burn" is always at least slightly aspirational, and as the Western fire season gets longer and longer, our window for safe prescribed burns gets shorter and shorter. As a result, this may be the most urgent environmental action places like California need to take. If the weather takes a bad turn, a delay of two or three weeks can mean missing an opportunity to mitigate disaster in the Summer and Fall. 

We've missed too many already.

 

Against feral disinformation, the very liars themselves contend in vain.

Feral Disinformation

Without feral disinformation and the cultivation of the lunatic fringe, we never would have had a Trump nomination. The Republican establishment was forced to accept a candidate whom they felt was extremely dangerous to the future of the party because the conservative movement had lost control of the narrative they created; it took on a life of its own.

Initially, Trump spread more more disinformation -- downplaying the severity and promoting worthless cures -- because that approach appeared to help him politically. Now, it is in his advantage to take credit for the vaccines and their impact, but the narrative kept evolving until even he isn't allowed to correct the lies he told.

“The ones who get very sick and go to the hospital are the ones that don’t take the vaccine. … if you do get it, it’s a very minor form. .. People aren’t dying when they take the vaccine.” -Donald Trumphttps://t.co/DobGKouFKo

— Edward-Isaac Dovere (@IsaacDovere) December 23, 2021

Candace Owens is doing damage control after “so many donors and supporters” are upset over Trump’s vaccine comments. She says he is old, isn’t tech savvy, doesn’t keep up with or read obscure internet conspiracies, and only follows the main stream media so doesn’t have the facts. pic.twitter.com/XAuTFfellE

— Ron Filipkowski (@RonFilipkowski) December 24, 2021

Alex Jones: “This is an emergency Christmas Day warning to Pres Trump. You are either completely ignorant .. or you are one of the most evil men who ever lived .. What you told Candace Owens is nothing but a raft of dirty lies.” pic.twitter.com/rNCNdvgNrm

— Ron Filipkowski (@RonFilipkowski) December 25, 2021

FRIDAY, JULY 23, 2021

Feral Disinformation

Another one for the lexicon.

Disinformation has gone feral when:

1. It is no longer in the control of the group that created it.

2. It has continued to grow in popularity and influence.

3. It has started to evolve in such a way that the nuisance/threat it presents is as as great to the people who created it as it does to the original targets. 

The most prominent example of the moment is the right wing movement opposing covid vaccines and increasingly vaccination in general. 

The Conservative Movement spent decades depicting the scientific establishment as alarmist and corrupt because undermining it served a clear political purpose at the time. Recently this narrative took on an added usefulness as the Republicans tried to contain the fallout from the pandemic. It was an unspeakably evil position to take, greatly adding to a horrific death toll, but it had a certain ends-justify-the-means logic, "had" being the operative word.

In 2021, being the anti-vax party is not in the Republicans' best interest. It devastates  areas that voted for Trump and it makes the most comically crazy people imaginable the face of the GOP. On top of that, it's bad for business. 

The best messaging for the Republicans at this point would be to start referring to the "Trump vaccines" and to work the phrase "Operation Warp Speed" into every statement and interview response, regardless of topic, then take credit for the end of the pandemic. That is, however, not an option. Control of the narrative has been lost, Things have gone feral.

Over the past the past week, the GOP establishment made a coordinated effort to move away from this disastrous message. 

The pivot is not going well.

Merry Christmas from Little Nemo

  

"Albert and Pogo's Christmas" by Walt Kelly

 

Perfect last-minute gift idea

Jemima Kelly of FT Alphaville has just the thing.

Excited for this new venture, which combines my passion for art and commitment to helping our Nation’s children fulfill their own unique American Dream. #MelaniaNFT https://t.co/XJN18tMllg pic.twitter.com/wMpmDDsQdp

— MELANIA TRUMP (@MELANIATRUMP) December 16, 2021

From FT

That’s right. Generous billionaire’s wife Melania is giving an (unspecified) portion of the proceeds from the sale of her “new NFT endeavor” to assisting “children in the foster care community”. Who said philanthropy was dead?

The NFT, named “Melania’s Vision”, gives the buyer a string of code that supposedly represents “ownership” (this is literally all an NFT is) of “a breathtaking watercolor art” that celebrates Mrs Trump’s cobalt blue eyes. We, not owners of this receipt, have nevertheless copied and pasted the contents of this collectible below for you all (isn’t digital art great like that):

Well we’re not sure if it’s Omicron or Melania, but our breath has certainly been taken away. 

But this is a non-fungible token with a twist. Because it is actually . ... non non-fungible. That’s right, until December 31 you can buy as many of these little wonders, all representing the exact same breath-taking picture, for the microscopic price of 1 Solana (a crypto token), currently worth around $170. She’s practically givin em away!

If you've gone through the holidays without hearing "Sugar Rum Cherry"...

  ... you have not had a cool Christmas.

The NYT weighs in again on California housing and it goes even worse than expected

[If you're just tuning in, this should get you up to speed.]

The gray lady has doubled down on the liberal hypocrisy housing narrative with a highly promoted video featuring two of the paper's stars and the results are... not good.

Checkout the 3:40 mark.




Obviously, this graph wasn't telling the story they thought it was telling. My first thought was that we were just seeing the impact of the collapse of the housing bubble which didn't particularly support the NYT's argument, but on closer scrutiny (assuming we can trust the x-axis), I realized it was even worse.

If you take a close look, you'll see that the drop started well before the 2008 collapse.

For the record, I don't know if permits issued is the best metric here -- I'd feel much more comfortable if we had an actual researcher to weigh in -- but the decline is a big part of the NYT's argument so we should probably ask ourselves if anything else of note happened in California around this time...

The Schwarzenegger administration went from 2003 to 2011, or roughly...

One of the odd facts about California (and a major source of its dysfunction) is that in order for a party to control the legislature it pretty much has to have a supermajority, so for these eight years, the state had a Republican governor and effectively a divided legislature, clearly making it the period of peak GOP influence over the past two decades. 

Just to be clear, I'm not saying that Republicans are to blame for California's housing crisis. We are talking about an eight-year run that ended a decade ago followed by a Democratic supermajority. The largest driver of the housing crisis appears to be asset inflation and its ripples, but to the extent that one party owns this, it would have to be the Democrats.

So, while you can certainly argue that liberal and/or Democratic policies on the state level caused or at least exacerbated this situation, the NYT somehow managed to pick the one statistic that supports exactly the opposite point.

But what about the other half of the argument? Could these dynamics be responsible, but at a local level? The video spends pretty much all of its remaining housing segment on Palo Alto.  The behavior described does sound rather appalling and pretty damning if you're making the point that there are lots of assholes in Silicon Valley, but with respect to housing, it's not just anecdotal; it's a headless clown argument (ducks are better than clowns because ducks have heads). 

To make this a real argument, the NYT would need to show some correlation within California cities. Compared to the Bay Area, the far more conservative/Republican Central Valley should have higher vacancy rates and stable housing prices, but we're not seeing any indication that the big valley is evading the crisis. By some metrics, it's getting hit worse. 

It has become increasingly obvious that this is a story the NYT really wants to tell, and no matter how logically flawed and factually challenged it may be, they are by God gonna keep telling it. Somewhat more pressing concerns like plague, flood and an ongoing attempt by the GOP to overthrow American democracy get pushed aside so the editors of the paper of record can spend a little more time scolding California liberals. 

The three things which the New York Times loves above all others are putting itself in a position of moral superiority, displaying its "impartiality" by criticizing Democrats, and taking condescending shots at other parts of the country. Add in the paper's well-established preference for talking about rich people and the hypocritical California Democrats narrative is nearly perfect which means we're probably in for still more installments.  

An almost complete checklist of the Fall 2021 NIMBY/YIMBY thread

 

MONDAY, SEPTEMBER 13, 2021

Yes, YIMBYs can be worse than NIMBYs -- the opening round of the West Coast Stat Views cage match

THURSDAY, SEPTEMBER 16, 2021

Yes, YIMBYs can be worse than NIMBYs Part II -- Peeing in the River

FRIDAY, SEPTEMBER 17, 2021

The cage match goes wild [JAC]

MONDAY, SEPTEMBER 20, 2021

Krugman then told how the ring of mountains almost kept the Challenger Expedition from finding the lost city of Los Angeles

TUESDAY, SEPTEMBER 21, 2021

Cage match continues on development [JAC]

THURSDAY, SEPTEMBER 23, 2021

Yes, YIMBYs can be worse than NIMBYs Part III -- When an overly appealing narrative hooks up with fatally misaligned market forces, the results are always ugly.

MONDAY, SEPTEMBER 27, 2021

Did the NIMBYs of San Francisco and Santa Monica improve the California housing crisis?

TUESDAY, SEPTEMBER 28, 2021

A primer for New Yorkers who want to explain California housing to Californians

FRIDAY, OCTOBER 1, 2021

A couple of curious things about Fresno

THURSDAY, OCTOBER 7, 2021

Does building where the prices are highest always reduce average commute times?

FRIDAY, OCTOBER 8, 2021

Housing costs [JAC]

WEDNESDAY, OCTOBER 13, 2021

Urbanism [JAC]

MONDAY, OCTOBER 18, 2021

Either this is interesting or I'm doing something wrong

And a study we'll want to come back to:

A spatiotemporal analysis of transit accessibility to low-wage jobs in Miami-Dade County

Food prices

This is Joseph.

There as a good article on rising food prices recently. In it, there was discussion of how a basket of goods had become expensive. Some commentators focused on the presence of Lindt chocolate: 

First, there’s a distinct “people on a budget don’t deserve nice chocolate” vibe to many of these comments, which I take umbrage with. Food shaming is pervasive on social media, whether it’s people yucking other people’s yums on a recipe post, commenting on what or how much they are eating, or acting like spending money on a pre-chopped salad kit is tantamount to burning down an orphanage.

And while I agree learning to cook is an important life skill and the best form of self-care you can engage in, there are lots of reasons people lean on convenience food — chief among them being convenience, which is right there in the name. Time is our most valuable finite resource, especially in a world that demands a lot of it.

You can see the chocolate below:

I see three bars of decent chocolate, of the type that people usually eat small pieces of mixed in with actual vegetables and lean chicken breast. I see a lot of bagels and some chips. This is a person who probably either lives alone or lacks the time to do a lot of cooking. I can totally see that. Meal preparation is labor intensive and it is easy to imagine reasons that one might not want to do a ton of it -- especially as time costs don't do a lot of scaling so it helps when somebody else can take a turn or do the dishes.

But finally, I want to argue that this is also the most counterproductive line of attack on this basket of good. Saving a small amount of money to buy the higher sugar/fat cheap chocolate seems like it makes this basket worse, not better. 

Finally, low food prices are a good thing. Full stop. High food prices mean hunger and, in a world of spiraling housing costs, budgets are not often able to handle new forms of inflation. We want people to buy  bar of Lindt chocolate (or any mid-range brand) and not feel like their budget is being stressed. It was once a sign of prosperity and political success for middle class working people to be able to afford decent food. 

That said, Mark covers the "how to shop effectively for food" beat much better than I and may well have some counterpoints.