“What is really different — and dangerous — about today’s justices is not partisanship, but rather a cognitive trap that Nobel Prize-winning psychologist Daniel Kahneman has called the “most damaging” of all human biases: overconfidence. Put simply, today’s justices possess a frightening degree of certainty that they can alone answer society’s most pressing problems with just the right lawyerly argument.
The roots of this certitude developed, perhaps surprisingly, from a noble place. When confronted with legal challenges to a slew of racially discriminatory laws in the mid-20th century, the justices needed the ability to proclaim those laws inconsistent with our Constitution’s one, true meaning. For good and important reasons, that is exactly what the court did.
But the power to declare the law’s meaning — and to override democratically enacted policies — is seductive. High constitutional theories such as living constitutionalism and originalism were advanced to justify judicial intervention in disputes ranging from guns to abortion and religion to the death penalty. And our overconfident Supreme Court was born.
The evidence of this overconfidence is everywhere around us, and it affects both sides of the political spectrum. One rough measure is the frequency with which the court overrules the judgment of our nation’s elected lawmakers. Whereas the court struck down less than one act of Congress per year between 1788 and 1994, the court has invalidated an average of more than three federal laws per year since then.”
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“Perhaps most significantly, the court’s overconfidence problem is apparent in its opinions. In overturning the right to abortion, for example, Justice Samuel Alito’s opinion declared that the legal reasoning embraced by respected jurists such as Sandra Day O’Connor, Anthony Kennedy, and Thurgood Marshall was “far outside the bounds of any reasonable interpretation.” Never mind that the “most important historical fact” on which Alito rested his own conclusion — the number of states that banned abortion in 1868 — was riddled with historical inaccuracies.
Opinions reaching liberal results often reflect overconfidence bias, too. In Kennedy v. Louisiana, for example, the court struck down the death penalty for cases of aggravated child rape. Although the Constitution was far from clear on the matter and elected officials had reached differing views, a bare five-justice majority wrote that “in the end,” it is “our judgment” that must decide “the question of the acceptability of the death penalty.””
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“Overconfidence bias has led to the court’s legitimacy crisis by unleashing the justices’ underlying partisan instincts. Humble justices can overcome those instincts by admitting uncertainty and deferring to others.”
“Yes, those publications have liberal biases. And, yes, some progressives are using the Thomas/Alito/Gorsuch reports to undermine the conservative majority’s legitimacy and push dangerous court expansion plans. But all of these nondisclosures, luxury trips, and gift-taking still seem sleazy.”
“House Republicans narrowly passed their version of an annual defense bill 219–210, after stacking it with controversial amendments on social issues that are dead on arrival in the Senate.
The debate on the National Defense Authorization Act, or the NDAA for short, now heads to the Democrat-controlled upper chamber, which is set to consider its own take on the bill later this month. Eventually, the two chambers will work to reconcile their differences between the two in the hope of finding a compromise.
The NDAA, one of Congress’s must-pass bills, effectively lays out what the military’s budget could look like for the next year and which programs will be funded. This year’s House bill authorizes $886 billion in funding, including a 5.2 percent pay raise for service members and the appointment of an inspector general to oversee Ukraine funding.
Much like the debt ceiling legislation and annual spending bills, the NDAA is a prime opportunity for lawmakers to add unrelated amendments making policy changes to pet issues, since it has to pass every year. This week, Republicans capitalized on this opportunity to put forth controversial amendments favored by their right flank, including restrictions on abortion and LGBTQ rights. It’s a move that’s meant to send a message about their position on social issues, and it’s also one that makes what was a bipartisan bill much more contentious.”
“Roberts’s attempts to make the Heroes Act mean something other than what it says are at times confusing and difficult to parse. But it basically boils down to this: In order to provide for the particular mix of student loan relief prescribed by the Biden administration’s policy, the secretary had to both “waive” some student loan obligations and “modify” others. That is, the policy only works if the secretary has the power to outright eliminate some obligations, while merely making changes to others.
The chief’s primary attack on the Heroes Act’s statutory language is that he reads the word “modify” too narrowly to permit these changes. As he writes, the word “modify” “carries ‘a connotation of increment or limitation,’ and must be read to mean ‘to change moderately or in minor fashion.’” And then he faults the Biden administration for doing too much, attempting to “transform” student loan obligations instead of merely making “modest adjustments.””
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““In the HEROES Act,” Kagan notes, “the dominant piece of context is that ‘modify’ does not stand alone. It is one part of a couplet: ‘waive or modify.’” The word “waive” moreover means “eliminate,” so Congress explicitly gave the secretary the power to simply wipe away student loan obligations altogether.”
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“Perhaps recognizing that his attempts to parse the text of the Heroes Act may not be entirely persuasive, Roberts’s opinion also offers an alternative reason to strike down Biden’s student loan forgiveness program — something known as the “major questions doctrine.”
Briefly, the major questions doctrine states that the Court expects “Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’” And, as Roberts writes, there’s little question that this student loans policy, which could forgive hundreds of billions of dollars in student loans, involves matters of great significance.
But the most important thing to understand about the major questions doctrine is that it is completely made up. It appears nowhere in the Constitution, and nowhere in any statute, and was invented largely by Republican appointees to the Supreme Court. It is true that the Supreme Court has invoked this made-up doctrine several times in the recent past — mostly in opinions joined entirely by Republican-appointed justices who wished to strike down policies pushed by Democratic presidents — but, in relying on this fabricated legal doctrine one more time, Roberts effectively cites past power grabs by the justices to justify a new power grab.
And even if you accept the major questions doctrine as legitimate, it’s not clear why Biden’s student loans program still should not be upheld. The doctrine merely states that Congress must “speak clearly” if it wishes to delegate significant authority to a federal agency. And, for the reasons explained in the previous section, Congress spoke quite clearly when it wrote the Heroes Act.”
“NTSB’s preliminary report released Thursday showed that the engineer at the controls of the Norfolk Southern train that derailed in Ohio tried to stop the train following a warning about an overheating wheel, but by that time several cars had already come off the tracks.
According to the report, before it derailed, the train passed three detectors intended to alert train crew to physical problems, including overheating wheels. Though the train detectors showed one of the wheels was steadily getting hotter, it did not reach a temperature Norfolk Southern considered critical until it passed the third detector and alerted, as outlined by the National Transportation Safety Board.
When the train passed that last detector, the detector “transmitted a critical audible alarm message instructing the crew to slow and stop the train to inspect a hot axle,” the report said.
By then, the engineer was already trying to slow the train because it was behind another train. Upon hearing the alarm, the engineer increased the application of the brakes, and then automatic emergency brakes initiated, bringing the train to a stop.
When it stopped, the crew “observed fire and smoke and notified the Cleveland East dispatcher of a possible derailment,” the report said.
Thirty-eight cars derailed and 12 more were damaged in the ensuing fire.
The hopper car with the overheating bearing was carrying plastic pellets, which caught fire when the axle overheated, Homendy said.
The placards that designate which cars are carrying hazardous materials — and which she said are “critical in response and in protecting the community,” were also made of plastic and melted. NTSB may recommend a different material for the placards.
The focus of the investigation is on the wheelset and the bearings. They are also looking at the design of the tank cars themselves, the accident response, including the venting and burning of the vinyl chloride, railcar design and maintenance procedures and practices, Norfolk Southern’s use of wayside defect detectors, and Norfolk Southern’s railcar inspection practices.
NTSB plans to hold a rare investigative field hearing near the site in the spring with the goals of informing the public, collecting factual information from witnesses, discussing possible solutions and building consensus for change.”
“”Republicans and Democrats are more inclined to say the government has too much power when the president is from the other party, and less inclined when a president from their own party is in the White House.” For more than a decade, Republicans have said that government has too much power, but the intensity of their feelings fluctuates depending on whether they hold the White House. Democrats also vary in their feelings, though they tend to believe the government is too powerful only when the presidency is held by Republicans. Majorities of independents have pretty consistently stuck to their guns in opposing an overpowerful state no matter which party has the edge.”
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“”Negative partisanship is the idea that people choose a party not necessarily based on the party’s platform or even the candidate. They do so out of animosity or dislike or disdain toward the opposing party,” Chris Weber, an associate professor in Arizona State University’s School of Government and Public Policy, commented in 2020. Weber points out that Americans haven’t really changed their feelings towards their own parties over the years, but their dislike of political opponents has intensified.
“Viewing half of the country or a large section of the country as antithetical to American democracy is actually really harmful,” he added. “It’s an outgrowth of political polarization that has potentially very serious consequences.””
“partisan animosity suits the authoritarian elements on the left and right just fine. Their goal is power, and they have little patience for procedural niceties that interfere with its exercise. As history teaches, a base whipped up into fear and fury is ready to accept almost anything to ensure its own survival. Perhaps even the destruction of the institutions and ideals that make America distinctively itself.”
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“At a time of polarization, you might expect the right to react by doubling down on support for free markets and private property. Instead, concurrent with democratic socialism’s ascendance, many prominent conservatives have taken a leftward turn of their own.
In June 2019, Tucker Carlson spent five full minutes during his prime-time Fox News show praising a plan from Sen. Elizabeth Warren (D–Mass.) to promote “economic patriotism.” The proposal, which called for “aggressive” government action to bolster domestic manufacturing and keep American companies from creating jobs abroad, “sounds like Donald Trump at his best,” Carlson enthused.
President Donald Trump exhibited a high degree of comfort wielding state power for mercantilist ends, from his imposition of tariffs to his use of subsidies and bailouts to support American companies facing competition. Now a rising cadre of nationalist conservatives (a.k.a. “natcons”) are happy to provide the intellectual ammunition for this America First agenda.
In 2019, Republican policy wonk Oren Cass appeared at the inaugural National Conservatism Conference to argue for industrial policy—a robust program of federal interventions meant to resuscitate American manufacturing. He went on to found a think tank, American Compass, that promotes such familiar policies as making corporations give board seats to labor representatives.”
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“Economics is the arena in which the left-right convergence is most obviously apparent. But there are other places in which the two movements, though superficially worlds apart, are tracking in the same disturbing direction at a deeper level.”
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“This is what feels most broken in our politics. It’s not the ways left and right are further apart than ever; it’s the ways they’re closer together, with powerful elements on each side having jettisoned the longstanding liberal ideal of respecting the rights of even those with whom you strongly disagree.
The two camps, of course, have different substantive moral visions for the society they wish to construct. But each views a broad conception of individual liberty as a barrier to achieving that vision.
Economic liberty, including international trade and private property rights, stands in the way of progressives’ desire for an egalitarian and democratic order in which no one is ever again expected to work for someone else—and in the way of natcons’ desire for a revivified American manufacturing sector in which male breadwinners can support a large family on a single income. Speech protections prevent both sides from controlling the conversation as they wish. Religious freedom is seen as either a cover for rank bigotry or a rationalization for excluding God from the public square. And liberal toleration, with its norms of fair play and civility, is at odds with the reigning conception of politics as total war.”
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“Individual liberty, equality under the law, protections against the arbitrary exercise of governmental power—these are unmistakably American values. While influential elements on both the left and the right have turned against them in recent years, most Americans are not on board with total-war politics.
Much has been made of rising affective polarization, and there is some evidence to support the concern. People have become more likely over time to say they would be displeased if they had a son or daughter who married someone from the opposite political party, for example. Yet Americans from both parties are still significantly more likely to say they would not be bothered at all. In fact, a 2020 survey commissioned by The Economist found just 16 percent of Democrats and just 13 percent of Republicans saying they would be “very upset” in that situation. Severe affective polarization remains mostly an elite phenomenon.
In a poll commissioned last year by the group More in Common, three in four respondents agreed that “the differences between Americans are not so big that we cannot come together.” Demonization of the other is a powerful political weapon, and those inclined toward authoritarianism are particularly comfortable using it. But what is sometimes called the “grand liberal bargain”—a social truce in which each side broadly agrees to respect the other’s freedom, even if it doesn’t like what the other side will do with it—is a powerful defense, and one in keeping with the natural ethos of America. It’s not too late to choose it.”
“Republicans across America are pressing local jurisdictions and state lawmakers to make typically sleepy school board races into politicized, partisan elections in an attempt to gain more statewide control and swing them to victory in the 2022 midterms.
Tennessee lawmakers in October approved a measure that allows school board candidates to list their party affiliation on the ballot. Arizona and Missouri legislators are weighing similar proposals. And GOP lawmakers in Florida will push a measure in an upcoming legislative session that would pave the way for partisan school board races statewide, potentially creating new primary elections that could further inflame the debate about how to teach kids.
The issue is about to spread to other states: The center-right American Enterprise Institute is urging conservatives to “strongly consider” allowing partisan affiliations to appear on ballots next to school board candidates’ names, as part of broader efforts to boost voter turnout for the contests. A coalition of conservative leaders — including representatives of Heritage Foundation, Manhattan Institute and Kenneth Marcus, the Education Department civil rights chief under former Secretary Betsy DeVos — have separately called for on-cycle school board elections as part of sweeping efforts to “end critical race theory in schools.”
In Florida, school boards are among the last elected officials who blocked policies of Gov. Ron DeSantis. If Republicans succeed in pushing the state to strip school board elections of their nonpartisan status and gain more representation on school boards, they could break the last holdouts who regularly defy the governor.”
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“Making school board races partisan could make an already heated political landscape even more contentious”
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““I do think party labels would produce more informed voters,” West said. “But, at the same time, it would likely accelerate emerging trend of nationalization of local education politics.””
“There were once plenty of senators who represented states that voted for the other party for president. Between 1960 and 1990, roughly half of all sitting senators fit into this group. But over the last three decades, that number has plummeted”
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” Likewise, in an earlier political era, many senators shared their state with a senator from the opposite party. Not only did this serve to reinforce the electoral reality that either party could win a state, but it also gave such senators an obvious bipartisan partner in the Senate, particularly on issues of concern to their home state. Today, though, only 12 senators..have a colleague who’s from the other party.”
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“because Senate elections were more about local issues, both parties were able to compete nationally. Voters didn’t care as much whether they sent a Democrat or a Republican to Washington. What mattered was whether they sent somebody who could represent their state well. And senators could prove their worth by bringing home federal funding for roads and bridges — just the kind of issue that used to facilitate bipartisan dealmaking.
But today’s political campaigns and voters care far less about roads and bridges. They care far more about national culture-war issues — and which party controls the majority in Congress. As a result, Democrats can’t win in much of the Southeast and the Mountain West, and Republicans are now perpetual losers in the West and the Northeast. Only the Southwest and the Midwest remain competitive, and that’s only because state populations are currently balanced between liberal cities and conservative exurbs.
It’s also why bipartisanship in the Senate is waning. Republican senators in solidly Republican states do not have to worry about winning over some Democrats; the senators’ general election win is all but assured. Rather, the most likely way they could lose is if they face a primary challenge to their right. And the most likely way they could draw such a challenger is if they were to publicly work with Democrats.”
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“even for senators who want to publicly prove their bipartisan bona fides, the problem is that party leaders like Senate Majority Leader Chuck Schumer and Senate Minority Leader Mitch McConnell prefer votes that draw sharp contrasts between the two parties. Divisive partisan politics help with campaign fundraising in an era of increasingly ideological donors (both big and small). And high-stakes elections mobilize and excite voters. Bipartisanship, in contrast, muddles the stakes and blurs the lines.”
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“Biden worked harder than Trump to foster a bipartisan deal. But arguably, it was the Democrats’ threat of eliminating the filibuster to pass voting rights legislation that pushed McConnell into supporting a bipartisan agreement in a way that bolstered Sinema and Manchin’s faith in bipartisanship. This is hardly a sustainable formula for bipartisan dealmaking on major issues.
To be sure, Congress can still accomplish some lower-profile bipartisan lawmaking (like a recent major upgrade of our drinking-water and wastewater systems) through what Matthew Yglesias and Simon Bazelon have dubbed “Secret Congress.” It turns out that members of Congress can still work across party lines when issues are relatively noncontroversial and there is not much media attention.
Indeed, if you look beyond the partisan media’s name-calling, you can find surprising amounts of bipartisan activity”
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“But “Secret Congress” works only because it’s secret, and it’s secret only because the issues are not high-profile enough to draw the public spotlight. But if the only bipartisanship that happens in Congress happens on uncontroversial one-off issues, this leaves the most important issues of the day to wither on the shoals of a 60-vote threshold in the Senate or, more commonly, in the gridlock of a divided government.”
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“partisans are the most hostile to compromise — especially those individuals whose racial, religious and cultural identities line up most strongly with one party. But the partisan sorting that has aligned these identities so closely with one party over the last several decades is precisely the reason why voters have come down so hard on politicians who compromise. The more that national political conflict is centered on abstract moral issues and the identity of the nation, the more any compromise feels like a surrender.
To recreate the conditions that allowed bipartisanship to flourish in the Senate once upon a time seems unlikely anytime soon. Instead, the most bipartisan-oriented senators are the most endangered. Manchin is a dying breed. His eventual replacement in West Virginia will almost certainly be a Republican.”