The thorny problem of inconstant judges

One of the periodic themes of this journal is that the reality of power is everywhere and always messy. I have described my conception that the most important high-level problem to be solved is well-defined and secure property rights in the state itself. This is a slightly more formalized way of saying "secure power".  I'm certainly not claiming originality in this idea - Moldbug's formalism is what got me started thinking about this.

In viewing matters this way, I think it's important to know what we're studying. Perfectly secure power in a governing regime seems to be somewhat akin to a perfectly efficient engine. 

In both cases, it's easy to design one on paper. The process is entirely straightforward! Fuel is mixed with air, then inducted into the cylinder, then the spark plug ignites it. What could be easier than that? There's an absolute monarch, and everyone just follows his orders.

And then when you actually implement the thing, you find all sorts of leakages due to annoying complications in details of the machine that you'd largely abstracted away from. Understanding these turns out in many ways to be more of an engineering problem than a pure science problem. 

But even though the perfectly efficient engine or perfectly secure monarch may be a platonic ideal, that doesn't mean that the forces preventing you from getting there should be viewed as mysterious. Indeed, if you do that, you'll have a very hard time improving things. Maybe you can be a menshevik, and slightly improve the design. Maybe you need bolshevism, to start with a new design that doesn't produce these specific frictions (although, of course, it will produce others, perhaps others you hadn't encountered or thought about).

More importantly, in either case you should care very much about how far away you are from the platonic ideal. Otherwise you're just committing Asimov's Relativity of Wrong. Is your government the equivalent of a nuclear power plant, or a coal power plant? And if the latter, how might you change that? Moreover, the messy world of the social sciences makes things hard. Physicists love to mock the social sciences as being unscientific, but there's no escaping the fact that we have to design this particular power plant based on the computational output of a large number of meat sacks, all designed slightly differently, all interacting with each other. 

The modern world presents us with very few serious monarchs to examine. This also liberates us from focusing on the specifics of what went wrong in any one case (what could Louis XVI have done differently? Lots of things, as it turns out). 

A lot of people on the dissident right have thought hard about the problem of delegation, which is definitely a first order problem, probably the largest one. No man rules alone, and the sovereign's decisions have to implemented by his subordinates. What are their incentives to implement it honestly, or competently, or not divert resources to themselves?

But there is another problem that I think gets relatively less focus. Which is the following: how does the monarch prevent himself from being psychologically manipulated or pressured by those around him?

Among the closest modern analogs to an absolute monarch is a US Supreme Court Justice. The analogy is not exact, because there's a very small-scale democracy going on within the nine of them. But this is voting at a level where your vote often might matter, and you know the parties, and it's a repeated game. 

In the court context, the delegation problem is how to make sure the court's decisions get implemented by lower courts, and by other governmental agencies. This is still challenging - what happens if lower courts routinely ignore your precedent, and you have to slap them down over and over (or just let your decision get undermined)? What happens if people just refuse to follow it? That used to be a big problem but is less so these days. 

But if you're on the right, the delegation question is not the central problem with the court today. The Republicans have long made a point of trying to get better, more conservative justices appointed to the court. And yet, as night follows day, maybe half of the supposedly conservative justices turn out to become liberals. Maybe if we vote for Trump, we can get some more rock-ribbed conservative justices like Sandra Day O'Connor, Anthony Kennedy, David Souter, John Roberts, or, increasingly, Neil Gorsuch. 

This problem seems to be wonderfully emblematic of the failures of the mainstream right. They keep losing. They know they keep losing. They are unhappy about the fact that they keep losing. And yet, their state of the art solution is just "push harder!". More of the same should do the trick! More voting. More rallies. More donations to National Review. More Republican Senators and Presidents, so we can get more Republican-appointed judges, just like...the same ones that put us in the unsatisfying position.  For republicans, it's basically a coin flip. Appoint the guy to the court, and maybe he turns out to be a stalwart judicial conservative, like Scalia or Thomas. Maybe he turns out to be mushy, like Roberts. Maybe he turns out to be a complete liberal, like Souter. 

If your best case scenario is a 50/50 chance at being right, congratulations, you getting to appoint every single judge results in a random walk over judicial appointments. Lose a single election, and it's downward drift.

At almost no point does it seem to occur to the mainstream right- why do half the Justices we appoint turn out to be traitors? And more importantly, what can we do to stop this happening? 

Perhaps, dear Republicans, this is a problem you ought to spend more time seriously studying, rather than just turning the same crank over and over and expecting different results

There are a few ways to think about what might be going on.

The first possibility is treachery. Everyone has to hew to a narrow set of Overton Window beliefs to get appointed. Prospective Supreme Court Justices are all skilled at concealing their true feelings, if such feelings should be undiplomatic. They're experts at saying the right thing to get ahead. Republican party chiefs will just never know what a person will do until he's finally unconstrained. Power tends to corrupt, and absolute power corrupts absolutely, as Lord Acton put it. These guys don't get absolute power, but they get enough of it that when you can't force them to do what you want, they do as they please.

The main problem with this hypothesis is that it stumbles on the fact that Democrats never seem to have this problem. When the chips are down, and the issue before the court is politically charged, rather than just some arcane matter of trusts law, Democrat appointees always seem to toe the party line.

So if this is our explanation, we've largely just kicked the can down the road a little. Why is there treachery among Republican appointees, but not Democrat ones? Even if the field is littered with sociopath traitors, is there nobody talented enough to get appointed by a Democrat, then drop the mask and reveal their inner Scalia?

Let us instead consider an alternative. All these justices started out intending to be conservative, but instead buckle under the social pressure brought to bear upon them. 

From the comfortable distance of one's armchair, this seems like a small thing. So what if some law school students don't like you? 

Reader, do you know what it's like to be hated? I mean, viciously hated, smeared in the New York Times, denounced as a stoolie or a rapist or sexual harasser or an Uncle Tom, day in, day out? Publicly stabbed in the back by people you helped and trusted, over and over? Like the pressure brought to bear on people by hostile journalists and the police, this is something that it's easy to sneer at until it happens to you. 

The reality is that most people just aren't good at dealing with being hated in a vicious and public manner. Despite their best intentions, it sways their choices. 

It's tempting to explain this in terms of concrete quid pro quo arrangements. If you switch to writing liberal judgments, you get invited to better parties and events, or have more fun friends or whatnot. This is definitely part of it. But I suspect there's a pure psychology aspect too. 

To pile metaphor on metaphor, look at the home team advantage in sports. Mosokowitz and Wertheim looked at this. The main driver of the home field advantage is not that it makes the players perform better. I was always skeptical of this myself,even before this study. These are professional athletes, with huge amounts of money at stake. Do they just not try their hardest without cheering? As it turns out, no, the effect seems to mostly be on the referees. And this is nothing but pure psychological pressure, on people literally selected and professionally rewarded for impartiality. The referee is anonymous. He's not getting invited to any swank parties. Even if he makes a lousy call, it's very unlikely that he's going to be harassed by name. The cost is just fifty thousand angry people yelling at you if you grant the penalty kick, and the same fifty thousand cheering if you just let it slide. 

And I suspect this is a large part of what's going on with Republican appointed justices too. Most of these people are law school strivers. They've been groomed for success for a long time, told they were the smartest in their class, voted most likely to succeed in high school, all that stuff. Then, they get made into some lower court judge, where they get less power, but almost total deference. Yes, your honor! No, your honor. And if you do something controversial, what happens?  You are mostly just "a federal court judge in Hawaii". You are the epitome of the machine - a cog, implementing something, replaceable with another cog. No sense hating the cog! But once you're on the Supreme Court, you are now Chief Justice Roberts, and your choices reflect on you, not the machine. 

Look at smiling John Roberts in his confirmation hearing:

Do you think that, before he took on the job, this guy had any experience of being hated? To ask is to laugh. The words on everyone's lips were "looks like nice guy". Good luck with that. He's a nice guy alright.

This is part of what soft power is. It's not always just a euphemism for hard power in disguise, the polite note before the US air force crushes your town. The reality is that psychological constraints are real constraints. We can't see them, but that doesn't mean they're not there. Most people simply aren't good at dealing with this pressure, or at a minimum, will be worse at dealing with this pressure than they think they will be if they haven't yet been subjected to it. It's reminiscent of the Randall Collins point about violence. Most people also don't like inflicting random violence on people, except in a limited range of circumstances. 

Most people also don't like being yelled at with curses and hatred, even if that hatred is very unlikely to result in actual violence to them. Monkey brain knows what's going on. Monkey brain knows that an angry crowd yelling at you is highly correlated with you being dismembered. Monkey brain responds, for the same reason that you get queasy when walking on a glass floored skyscraper walkway. 

To solve the problem of the social pressure being brought to bear on Supreme Court Justices is probably a coup-complete or regime-complete problem - something you can't solve without first changing the government. A good giveaway for such things is if at any point they involve the step "next, we reform or replace the New York Times".

But if you were of the menshevik mindset, there is probably still progress that can be made. The petrol engine can be improved, even if we can't yet turn it into a fusion engine. 

In particular, one useful rule of thumb when judging appointees - what experience do they have with being smeared and hated? And do they have a personality likely to be more resistant to this, inasmuch as it's possible to forecast this. Are they naturally combative and devil-may-care, like Scalia? Do they thrive on having haters? Do they have a history of being outspoken? Unfortunately, this tends to make it hard to get confirmed in the first place these days, so that may not be possible.

In an ideal world, they might have some concrete experience with similar jobs. One obvious case - running a medium sized business, and having to fire people. Yeah, you'd better believe that will toughen you up. Can you inflict pain upon people, and deal with their anger and contempt, while keeping your eye on the larger purpose? Have you had to command troops in battle, and know that making the wrong call on whether to breach that door will likely result in either your guys getting shot, or civilians being shot?

Ironically, the main pre-job exposure people have to being hated is from Democratic and media efforts during the confirmation hearings. While you have very small number of observations here, I suspect that Clarence Thomas being viciously smeared before he started probably had a searing effect on his choices. It likely made him permanently bitter, as there was basically no worse smears that could be thrown at him than what he faced before he started the job. But he knew what his enemies were like,  and exactly what their good opinions were worth, and wasn't going to cave to them after that. 

An interesting question will be to see what happens to Kavanaugh. I think it's easy to overextrapolate the Thomas outcome, and ignore the possibility that some people overreact in the other direction - they cave harder sooner in order to make the smearing stop, or they rationalise it. I'll show I'm the bigger man by not being the right wing monster they accused me of being, and instead implement this unprincipled exception for liberalism. 

You may think this doesn't really apply to monarchs. They can just fire the hostile press, or implement lese majeste laws to execute people who insult them. 

But remember, the pain point is psychology. What if you get a monarch who just really wants to be loved, and can't deal with being despised, or even just with causing necessary pain on citizens? 

I don't hold myself out as any kind of expert, but that's certainly the description I've read of Louis XVI. He wore civilian attire, rather than military. A man of the people! That worked out well for him.

Maybe you think this is all old hat. Very well. Here's a simple test. Take the sentence 

"Previously conservative judges are susceptible to public pressure, and probably will end up changing their views to conform to it."

Ask yourself - would this apply to...me? Would I be susceptible to public pressure, and change my views to conform to it?

Ha, no, of course not. Biases for thee, cold-iron robotic logic for me. 

If you are certain that the answer is "no", and yet you've never had any firm experience of resisting exactly such pressure, I suggest that there is a large chance that you may be greatly underestimating the forces at work here. 

To paraphrase one half of my nom-de-plume:

Hath not a judge eyes? hath not a judge hands, organs, dimensions, senses, affections, passions? If you scream in his face, does he not flinch? If you mock him, does he not feel stung? If you slander him, does he not bristle? If you selectively apply pain, does he not learn the lesson?