Month: July 2012

In an introductory American Government course the judiciary will get one chapter and about a week – two or three lectures – of attention before moving on to other topics. I hardly qualify as a master of the subject, but I try to cover one basic theme in addition to the time that must be devoted to the nuts-and-bolts of what the judiciary does and how it works. The American public and media are often critical of the courts, and particularly the most highly visible one, for being "politicized". That is, they appear to be assuming some role other than what we have been taught they are since childhood: impartial arbitrators. The idea that the Supreme Court decides whether abortion is legal or who won a presidential election is understandably disagreeable to many Americans. After all they are unelected and nearly impossible to remove, two characteristics designed to insulate them from politics. Therefore, it follows, they should keep their distance from political questions.

Considering the reality of the Court, however, it becomes clear that anyone shocked to learn that it is political has managed to overlook some fairly obvious red flags.

First, the members of the Court are chosen in a political process and carefully vetted by self-interested elected officials. From the presidents' perspective, these appointments are their legacy. For Congress, nominations are an important position-taking vote.

Second, there is no reason to believe that legal questions will have strictly legal implications. The political process creates the law, so interpreting the law has political consequences.

Third and most importantly, the Supreme Court is and always has been political because the other branches (and states, for that matter) essentially force it, through action or inaction, to resolve political questions.

This third and final point is key, because it gives rise to the one legitimate complaint that exists on this subject: that the Court is becoming more political over time. Simply put, there is a good argument to be made that the Supreme Court is resolving a greater number of political issues because the actual political process – Congress and state legislatures, presidents and governors – refuses to do so. Our elected officials, rather than make decisions about hot button issues and risk infuriating half of their constituents, willingly punt to the guys who can't be punished on Election Day.

Consider the choice facing members of Congress. One option is to introduce a bill about some controversial topic – abortion, gay marriage, healthcare reform, etc.

– and then go on record for or against it. Another is to tread water, maintain the status quo, talk out of both sides of one's mouth on the issue, and wait for the Supreme Court to issue a decision that may end up being unpopular.

Rational self-interest suggests that the second option is superior for most elected officials. Consider the Republican House majority after 2010, which could very well have debated and voted on one of the "repeal and replace" bills for "Obamacare" that candidates talked about so much during the election.
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In practice, and recognizing how popular some (but not all) parts of the law are among the public, they decided to wait and let the Supreme Court strike it down. Obviously that strategy failed, although tomorrow we'll talk about how they manage to turn this failure into an asset and undermine the efficacy of our government in the process.

It is popular in recent years to write about the failure of leadership in today's political class, often by resorting to sophomoric references to "common sense" and "guts" (Ed Rendell's ridiculous A Nation of Wusses: How America's Leaders Lost the Guts to Make Us Great or any of Glenn Beck's pablum come to mind). Perhaps it is a lack of resolve; perhaps it is simply a rational response to the incentives laid out in our elections, particularly the financial incentive to placate the greatest number of interest groups to the greatest possible extent. Regardless, the Federal bench and the Supreme Court in particular resolve contentious political questions for an uncomplicated reason: someone has to, and the lawmakers won't.

Stop me if you've heard this one before: a perfectly ordinary summer heat wave strikes across the U.

S. and millions of people are without power at the worst possible time. It's something of an annual ritual at this point.

Americans sure are "frustrated" at the thought of experiencing triple-digit temperatures without basic modern conveniences like ceiling fans and air conditioning* but as usual they do not appear to connect the dots. The fundamental problem is that like so much of our infrastructure, the American power grid belongs in decrepit. We have first world prices and a third world grid. The outdated fossil fuel power generating stations look downright modern compared to the transmission system. So Americans – Woo! We're #1! U-S-A! U-S-A! – get to enjoy brown- and blackouts during the height of summer. You know, blackouts; like they have in Uzbekistan and Angola. But I'm sure there's nothing wrong with our grid – the power must be out because the lazy union linemen aren't fixing it. What's beige and sleeps four? The ComEd truck, amirite people? Ha!

I never had high hopes for the current President, but there was some talk during the 2008 election and transitional period about a "New New Deal" type stimulus in which billions would be devoted to the long overdue overhaul of our nation's crumbling infrastructure. It never fails to amaze me how easily most Americans can reconcile our wealth and self appointed greatest-country-ever status with the overall shabbiness of so much of their surroundings – the collapsing bridges, the antique power grid, the slowest-in-the-Western-world broadband internet infrastructure, the 19th Century rail system, the two generations old cellular network, the old (and increasingly privatized) water supply, and so on. Of course it didn't happen. As usual, the only thing we managed to do is fix and repave some highways. And we don't even do a very good job of that.

A summer power outage is neither unprecedented nor unexpected, but it is a very visible reminder of the way that our country as a whole is starting to reflect the saddest aspects of its crumbling cities – the sense that this place was shiny and new in the 1940s and 1950s and it has been all downhill since then. We used to be able to handle ideas like massive government projects (rural electrification, the Interstate Highway System, etc.) to improve our standard of living. Now we sit around waiting for Private Sector Santa to save us; he never quite gets around to it. The idea that we could publicly employ millions of people to make the country less like your grandmother's 100 year old house – the hoarder, not the sweet one with all the doilies – simply doesn't fly before. Even if one rejects Keynesian economics, you'd think there would be some appeal to the idea of not living in a shit hole.

I underestimate our capacity for self-loathing sometimes. Let's start a pool for the first internet hack to call this "Obama's Blackout", with bonus points for naming the first to make it explicitly racist.
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*How is Willis Carrier's birthday not a state holiday in the former Confederacy and the Southwest?