Cliff Winston on Judges and Courts
Clifford Winston, an economist at the Brookings Institution and someone whose work on economics I highly respect, sent me an email about some recent SCOTUS decisions. I told him that I think very differently about these issues and asked his permission to quote him. He responded that he wanted to add some words for clarity but if my quotes included these additions, I could do so. By the way, the works he added caused me to disagree with him less than I did, but I still disagree with some of his statements. Here are the five paragraphs I have permission to quote. He added the words in bold.
I won’t respond to everything below, but I will respond to some of the issues on which Cliff and I most disagree.
Posner made two critical points that are central to current discussions. First, he argued that because justices do not share a commitment to a logical premise for making decisions (for example, cost-benefit analysis), they must be ideological because they cannot be anything else. Note, the point is not that judges should decide cases based solely on cost-benefit analysis or explicitly ignore unambiguous rules and laws. However, cost-benefit analysis should be a consideration with experts providing guidance on identifying and estimating the costs and benefits, which judges would hopefully consider.
Second, Posner was a pragmatist and he pointed out in an NYT interview that “A case is just a dispute; forget about the law—see if a recent Supreme Court precedent or some other legal obstacle stands in the way of ruling in favor of that sensible resolution. And the answer is that’s rarely the case, or when you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
To that end, what would a pragmatic approach suggest about how to think about resolving the recent cases? The web designer may benefit by exercising her religious preferences, but I suspect that she will lose a lot of business when her behavior is publicized, and certain consumers boycott her services. Consumers will lose if she offers a superior service that they eschew. So, is a lose-lose outcome a sensible resolution? Wouldn’t society be better off if market behavior was not used to suppress output? Of course, the economic benefits of greater output should be compared with the costs of not allowing the web designer to exercise her religious preferences.
The education loans and college admissions cases raise the fundamental questions of: (1) What are we trying to accomplish as a society by suspending the loans and allowing race to be a factor in college admissions?; and (2) What is the best way to accomplish that goal? The answer to the first question is presumably that we want to help groups that will be disadvantaged in life by their financial debt and that have been disadvantaged by their race and ethnicity in various ways throughout their life. Note, whether those are worthy goals is ultimately determined by the democratic process. In any case, it would be helpful to have a thoughtful discussion about the best way to achieve those goals. If people who are relieved of certain debts respond by accumulating new debts and if certain races and ethnic groups are better able to gain admission to certain colleges but the earnings gap between those races and ethnic groups and other groups is not affected, then SCOTUS arguably made sensible decisions, which are not impeding the aforementioned goals. But I would like to see the evidence to back that up and I would still like to identify the best approaches to solving those problems (e.g., before individuals approach college age).
As noted, economics and cost-benefit analysis should not be the entire basis for SCOTUS decisions, but those modes of analysis certainly should not be excluded. I argue in the attached paper that lawyers are siloed in their training and professional careers and that they would more likely to have a broader perspective in their rulings if the legal profession were deregulated. Importantly, SCOTUS would be more likely to be receptive to expert panels, which could greatly help them to reach more sensible resolutions of disputes.
First, he argued that because justices do not share a commitment to a logical premise for making decisions (for example, cost-benefit analysis), they must be ideological because they cannot be anything else.
Either Cliff is misquoting Posner or Posner is wrong. He leaves out the possibility of looking at the Constitution, seeing what it says, and judging accordingly.
Now comes the part I most disagree on. And I disagree not only on the law but also on the economics.
To that end, what would a pragmatic approach suggest about how to think about resolving the recent cases? The web designer may benefit by exercising her religious preferences, but I suspect that she will lose a lot of business when her behavior is publicized, and certain consumers boycott her services. Consumers will lose if she offers a superior service that they eschew. So, is a lose-lose outcome a sensible resolution? Wouldn’t society be better off if market behavior was not used to suppress output? Of course, the economic benefits of greater output should be compared with the costs of not allowing the web designer to exercise her religious preferences.
Whether or not he recognizes it, Cliff is playing to the narrow stereotype of economists. My wife told me that when she told someone that her husband is an economist, the person said, “Oh, he studies money.” She replied, “No, he studies human behavior.” We are motivated by more things than money. It’s not a lose-lose outcome. The woman who wanted not to be forced to express herself in ways that she disagreed with surely understood that she would be giving up business: that’s the whole point. So giving up this business she didn’t want, although it would make her less profitable, would cause her to gain, not lose. Cliff adds, “Of course, the economic benefits of greater output should be compared with the costs of not allowing the web designer to exercise her religious preferences.” But that’s exactly what she’s doing. We don’t need a government agency, whether a court or a regulatory agency, to do that. If a government agency were to require her to trade, we know that there would be net losses: the loss to her from being forced to trade would be less than the gain to the consumers who miss out on the trade. If that weren’t so, they could raise their offer and she would accept.
The education loans and college admissions cases raise the fundamental questions of: (1) What are we trying to accomplish as a society by suspending the loans and allowing race to be a factor in college admissions?; and (2) What is the best way to accomplish that goal? The answer to the first question is presumably that we want to help groups that will be disadvantaged in life by their financial debt and that have been disadvantaged by their race and ethnicity in various ways throughout their life. Note, whether those are worthy goals is ultimately determined by the democratic process.
Accomplish as a society? I remember one federal judge, in rebuking George W. Bush in a case involving a prisoner at Guantanamo, stating, “The president is not a commission.” Similarly, Joe Biden is not a society. He’s one guy. He’s the one who suspended the loans. That’s where rules come in. Cliff seems to recognize this with his last sentence above. It’s not one I agree with: it gives way too much power to “the democratic process” instead of to people’s rights. But Cliff’s the one advocating it. Given that, he should recognize that the democratic process–I assume he means Congress–didn’t see fit to suspend the loans.
“We want to help groups that will be disadvantaged in life by their financial debt.”
Then help them. There’s nothing stopping people from giving their own resources to help them. But, by the way, the tough love solution is to insist that they pay their debts; it will help them learn a lot about responsibility. They might be much more disadvantaged if they don’t learn that.
“and that have been disadvantaged by their race and ethnicity in various ways throughout their life.”
If being black per se disadvantages people, why do white people often wish they could claim, on college admission applications, that they are black?
“As noted, economics and cost-benefit analysis should not be the entire basis for SCOTUS decisions, but those modes of analysis certainly should not be excluded. ”
I agree.
“I argue in the attached paper that lawyers are siloed in their training and professional careers and that they would more likely to have a broader perspective in their rulings if the legal profession were deregulated. ”
I agree that the legal profession should be radically deregulated. I’m not sure that lawyers as judges would have a broader perspective in their rulings, but my agreement on deregulation doesn’t hinge on that.
Where I fundamentally disagree with both Cliff Winston and Richard Posner on is the role of judges. Both seem to see judges as central planners. In that way lies peril.
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