Comments on: As Good A Theory as Any

By: SP

SP — Fri, 14 Jul 2006 01:47:02 +0000

I've noticed that. It seems like Justices writing for the minority side are often happy to strike down laws and declare acts of government unconstitutional. I guess its easy to be bold when you know nothing will come of it. Meanwhile, the majority opinion always upholds everything.

This gives the false impression that the Court is serving its watchdog function when it isn't.

By: Matthew Brown

Matthew Brown — Fri, 14 Jul 2006 01:16:59 +0000

It’s also easier to stand on your principles if you know you’re on the minority side anyway.

By: dearieme

dearieme — Wed, 12 Jul 2006 15:41:44 +0000

SP: principles? They are lawyers.

By: JohnDewey

JohnDewey — Wed, 12 Jul 2006 15:19:10 +0000

I would prefer the court be biased toward reigning in administrative agencies. Elected officials are accountable to the electorate, and serve for short terms. Bureaucrats seem accountable to no one, and their actions possess great inertia.

By: SP

SP — Wed, 12 Jul 2006 06:53:09 +0000

Maybe, but the great insight of public choice economics is that the incentives politial actors are supposed to face and in reality face are not always the same, and often quite different.

As you note, they often don't stand up to their respective principles. Why not? What's the disincentive there?

By: Matt

Matt — Wed, 12 Jul 2006 05:41:32 +0000

What sorts of incentives? Well...they have an incentive not to piss off enough people that they're likely to be asassinated. Other than that...um...not much. The system was built that way on purpose.

The problem is that, while intrinsic prejudices might break down in the face of counterincentives, in an incentive-free system they have virtually unlimited reign. Sometimes you'll find a man (or woman, although neither of the women to serve on the Court so far has managed it) with principles strong enough to stand up to his prejudices most (but never, so far, all) of the time, and you'll end up with a Scalia or Thomas. But that's not the way to bet.

This problem may or may not be solveable in theory. But it's never been solved in practice so far, except by means which create worse problems.

By: SP

SP — Wed, 12 Jul 2006 05:21:48 +0000

To date, has anyone attempted some sort of public choice analysis of the Supreme Court? I've never found anything like that. But surely there must be grounds for some kind of analysis. For example, there is probably a big difference in overruling a recently enacted statute and overruling one upon which rests a giant bureaucracy that would have to be dismantled as a result. I'm guessing the extent of the "real world" effect of a particular ruling is significant.

What sorts of incentives do the Justices face? How signficant is the selection process? Who is writing about this kind of stuff?