Randomize The Supreme Court
A couple weeks ago the big headlines were about House Democrats’ ill-fated crusade to avenge themselves of the Garland Affair.
The surprise isn’t that the bill will fail in the Senate. What ought to shock the conscience of any sentient being is that in an age of so much available information, the most obvious plan for ending partisan warfare over the judiciary isn’t what’s actually being pursued as a solution, let alone the single most nonpartisan one1.
While there are a lot of culprits in how the court ended up in a position where it would even need to be rebalanced by Congress, the single most influential actor has been the pro-life movement. The rigging of the Supreme Court is almost entirely a story of their decades-long crusade to overturn Roe2, and the biggest challenge they faced was how to reliably rig the court in favor of this outcome. Jurists kept balking or standing on pesky things like “precedent” and “principle”, most famously Kennedy in Casey back in the 90’s. The Federalist Society and the broader pro-life activist network was the way around this, but took time to get up and running. But when it finally did? Bam. Predictable judges. It was only a matter of time.
The main reason why parties never did this in previous eras is… wait… *checks notes* ah, yes, they have done this before! Dred Scott was decided by a rigged SCOTUS. I’m not sure about Plessy v. Ferguson, but it was decided 8-1… you do the math. The Hughes court was rigged as well. So let’s not get hysterical and catastrophize the present more than we have to. I think the most by which we can actually accuse the Late Roberts court of being an historical outlier, is just that the parties have never been so firmly consolidated into two coalitions, and thus have never really had quite the same level of ideological ferment attempting to clothe nakedly partisan judicial goals, nor the same level of buildup of the interest groups and political intermediators like Super PACs and the Federalist Society trying to achieve those goals.
So, the goal here should be to restore unpredictability to the bench, and to do so in a way that neither side will be able to easily reverse. Randomizing the court fits this bill! The reasoning is that (1) it makes it impossible for parties to predict which jurists will even sit their pet cases, and (2) it threatens jurists tempted to overturn precedent using hack-y arguments, with the possibility that they themselves will be overturned by future hackery.
As for undoing the policy, that requires a congressional majority to repeal, and it’s a Constitutional nightmare to boot! In order to randomize the court in the first place, the entire federal bench needs to be confirmed as associate justices, whom the Constitution is quite clear “shall hold their offices during good behavior”. Straight repeal thus means emptying the entire federal bench (who will need to be replaced!), and upgrading them into a SCOTUS of several hundred justices.
To the extent that no one’s seriously engaging with such an obvious policy that would more or less permanently departisanize SCOTUS, I think it just demonstrates how blinded our politicians are by the bad incentives of the zero-sum electoral system that creates our heinous two-party system. Republicans think they’ve won their holy grail, while Democrats can’t think past the basic math of “9+4”.
The Messaging Constraint Problem
I generally agree with Matt Yglesias3 on popularism4 and that we should better appreciate the basic dynamics of antiracist messaging, instead of just making up “theories of the case” that we don’t actually test, whenever we want to Be Right On The Internet.
However, I think he’s fundamentally missing something in the approach. If we’re ever going to achieve real change in leftist messaging strategies from behind our keyboards, as opposed to, say, by bothering to show up at annoying activists’ meetings and conventions, and heckling them with our statistics, then we need to build a consensus among the intellectual class about how to target and constrain messages.
By targeting, I mean that someone’s thought of an audience for their message, and they’ve crafted their message for that audience - in content, in distribution, style, etc.
By constraint, I mean the extent to which messages’ distribution is limited to only the target audience.
Right now, by Matt’s own description of the scenario, I’d estimate that most of the left’s “advocates and activists” messages are consciously targeted with varying levels of competency, but not well constrained. We see this in the messages Matt criticizes: as he explains, misframing the minimum wage as a racial equity issue is clearly what we can describe as “consciously targeted by advocates at liberal donors”.
The problem is, advocates and activists do almost nothing to constrain their misframed messages’ distribution! In fact, they’re usually actively doing the opposite. And as Matt intimates, it’s no wonder why: they think everyone agrees with them! Framing everything in racial equity terms is a winning message with the donors, and when the only people you talk to are donors and other advocates and activists trying to woo those same donors, you end up with a lot of groupthink. But critically to our discussion, it’s clear that these guys all basically hope that every message of theirs goes viral, because that’s the best way to get attention, and attention means donor dollars, both small and large.
A good contrast is Spanish-language messaging from the 2020 Biden campaign5. The messaging was targeted with middling competence6. And although it was already inherently constrained by language, what’s more relevant to us is that almost all modern presidential campaigns engage in what they call “microtargeting”, but which we can more properly understand with our definitions here as “microconstraining”. [Ed: The point is that they’re trying to avoid spillover of counterproductive messages to unintended targets, while maximizing the effect with intended targets.]
Anyways, if we don’t want to constantly have to have our moderate and even not-as-moderate politicians disavowing various leftist messages… or if we don’t want the establishment getting hip to Matt’s ideas and instituting its own blacklist of leftist messages, as it’s wont to do… both of which anger and demoralize the base… then we need to look for ways to get advocates and activists on board with implementing constraints to their messages.
Not that I take great stock in those, either. Nonpartisanship is a stupid, intellectual-dead-end fetish that is memeishly stuck like a rickroll in the American ethos, but that’s precisely why we should be appealing to it here.
Although long before the social right ever started this, the economic right (AKA Big Business) had been eager to re-rig the court for their own purposes ever since FDR forced the Hughes court to submit to the New Deal.
On most things, really.
As he defines it, it’s basically the thesis that “Democrats should espouse popular positions and message them in popular ways” as a vehicle for electoral majorities that can actually accomplish things, as opposed to campaigning on a solidly left platform in a country whose institutions and distribution of popular sentiment are biased in favor of the right.
It’s a curious coincidence that presidential nominees’ campaigns are less-motivated by donor dollars - they already have an entire coalition behind them, giving them money.
Biden probably did better than most Democrats with eschewing the “Latinos care only/most about immigration” narrative popular among advocates and activists, but only by dint of his pure obsession with jobs. That said, the narrative’s purchase among the ranks of campaign and PAC staffers still did its usual damage of turning off rural and conservative-leaning Latinos who may actually have been gettable with a more strictly disciplined message.
I think a lot of Democrats think of Latinos as a bloc. They aren't. Cuban-Americans have their own peeves, as do each of the other *-Americans that fall in the Latino group. But, the biggest thing is that they are Americans and jobs/money, healthcare and education are going to be big worries for them, same as every other American.