Monday, December 29, 2014

Checks, balances, bells

Most American school kids learn about the system of checks and balances written into the U.S. Constitution. At that level, it is very attractive and (seemingly) limits the damage that any one group can do to the rest of us. The whole arrangement was (seemingly) settled by the 1803 Madison v. Marbury ruling.

But the reality is much more complex and much more interesting. Public choice economics reminds us that all of the players are people who consider incentives and constraints -- and who also have their biases. Judges cannot be expected to be a race apart. They cannot be expected to operate outside any political context. This is one reason one can lose money betting on judicial rulings and, especially, Supreme Court decisions.

All of this and more is nicely rendered by Damon Root in his Overruled: The Long War for Control of the Supreme Court. Spoiler alert: the book's last chapter is titled "No Peace."  Nothing is settled. The idea of judicial deference to legislation (by the states or by Congress) has been embraced by the likes of Oliver Wendell Holmes, Jr., Robert Bork and John Roberts -- and many others. The Fourteenth Amendment to the U.S. Constitution and its various clauses are also embraced and ignored in zig-zag fashion.

Read the book. Do not bet on how Obamacre will fare in the upcoming King vs Burwell decision this Spring. Do not expect that the public comments of Prof. Jonathan Gruber will not be a factor. Rung bells are never un-rung.


Here is a review of the book by a legal scholar.