What is less clear is whether the Massachusetts citizenry will rise up against a latter-day judicial oligarchy — four members of the state's Supreme Judicial Court — that makes King George III look positively benign by comparison.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil power.

For Quartering large bodies of armed troops among us:

For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefits of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences.

It’s no coincidence that states where judges are elected are less likely to experience judicial activism of the sort Massachusetts must now work to undo * * * The requirement that judges go before the voters periodically provides a much-needed restraint on the activist impulses of what was once regarded as the “least dangerous” branch of government.

Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people’s elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; “judge[s] represen[t] the Law.” Chisom v. Roemer, 501 U.S. 380, 411 (1991) (Scalia, J., dissenting). Unlike their counterparts in the political branches, judges are expected to refrain from catering to particular constituencies or committing themselves on controversial issues in advance of adversarial presentation. Their mission is to decide “individual cases and controversies” on individual records, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 266 (1995) (Stevens, J., dissenting), neutrally applying legal principles, and, when necessary, “stand[ing] up to what is generally supreme in a democracy: the popular will,” Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1180 (1989).

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the Constitution and the laws.

Capitalism and the Law: Top Ten Outrageous Antitrust Cases of 2003 

:: Posted by Nicholas Provenzo at 9:57 PM

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Rights & Reason: Gerrymandering Reality 

:: Posted by Skip at 6:49 PM

Remember when Democrats in the Texas legislature fled to neighboring states to avoid voting on a Republican-backed congressional reapportionment plan? Yesterday a three-judge federal court rejected a Democratic challenge to the now-approved plan, turning away arguments that the Republicans engaged in racial discrimination. Ironically, the leading defender of minority voters is Rep. Martin Frost, a white Democrat whose district was effectively dissolved by the GOP. Frost remained on the warpath, however: “By judicial fiat, a three-judge federal panel has effectively repealed the Voting Rights Act and turned back the clock on nearly 40 years of progress for minority voters.”

Actually, minorities are just as free to vote today as they were before the Texas legislature’s shenanigans. The original objective of voting rights legislation was to end state practices that actually prevented minorities from voting—poll taxes, literacy tests, voter intimidation, etc. What happened was minority voters, as a bloc, decided to slavishly follow the Democratic party. This allows the Democrats to argue that any reapportionment that benefits Republicans, by definition, disadvantages minorities.

This is why the courts and the Justice Department insist on a certain number of “majority-minority” districts in certain states, or what amounts to affirmative action for congressmen. The theory is that minority votes will only “count” if there’s a critical mass of them to affect the outcome of an election. There is no difference between this application of critical mass theory and the one propogated by the University of Michigan policies recently challenged (and partially upheld) by the Supreme Court. Maybe this explains why the Bush Justice Department went soft on Michigan—they realized it would force them to disavow much of contemporary voting rights law. The White House would prefer to compete for minority voters on the issues—or more accurately, by pandering to these votes—rather than incite them by decisively standing against affirmative action.

The objective truth, however, is that no amount of partisan gerrymandering can disenfranchise minority voters. Only the voters themselves can do this by reflexively backing one political party regardless of self-interest. In antitrust law, regulators discuss anticompetitive behavior by producers. In elections, it is the consumers that act anticompetitively by refusing to cross racial and party lines. When the Democrats know they don’t have to compete for minority votes, they’ll put their resources into keeping other constituencies within the fold.

Perhaps the best example of this is the District of Columbia, an overwhelmingly black Democratic jurisdiction. For decades D.C. residents have asked Congress to expand genuine voting rights—that is, for voting House and Senate members—to the District. Despite the long Democratic domination of Congress prior to 1994, there was never any action on this issue despite plenty of lip service from Democratic leaders. The party never acted because there was no consequence for not acting—D.C. residents won’t vote Republican—and because other factions demanded more immediate attention. For their part, Republicans won’t acting on D.C. voting rights because there’s nothing for them to gain; if they succeed, they would just hand the Democrats three more seats in Congress.

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The Courts: Happy Anniversary! 

:: Posted by Skip at 9:22 AM

Thirty-two years ago today, William Rehnquist was sworn-in as an associate justice of the Supreme Court. Not only is the now-chief justice the longest serving member of the current Court, but Rehnquist is also the only one of his current brethren who never served as an appellate judge—or a judge of any kind—before his Supreme Court appointment. Rehnquist was an assistant attorney general in President Nixon's administration at the time of his nomination and appointment. Prior to that, he was a civil litigator in Arizona.

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:: Tuesday, January 06, 2004 ::

Antitrust & Sports: Judging Landis 

:: Posted by Skip at 4:58 PM

With all the attention paid this week to Pete Rose’s sorry situation, let’s take a moment to congratulate Paul Molitor and Dennis Eckersley for their election today to the Baseball hall of Fame. Over at ESPN.com’s group blog, Chuck Hirshberg suggests tossing some folks out of the Hall, starting with baseball’s first commissioner, former federal judge Keensaw Mountain Landis:

It's hard to say which Landis harmed more -- America's National Pastime, or its Common Decency * * * For two decades, this succubus sat on the federal bench, torturing the poor and defenseless. Anyone who displeased him was sentenced to jail. He even sentenced a U. S. Congressman, Victor Berger, to 20 years in Leavenworth for speaking in opposition to America's involvement in World War I. The Supreme Court overruled Landis on that one, but he was used to being overruled and later complained that "the laws of this country should have permitted me to have Berger lined up against the wall and shot." You can see why he appealed to baseball owners.

Virtually every hateful outrage in baseball history can be ascribed, in some measure, to Landis' INTEGRITY AND LEADERSHIP. It started around 1915, when competition from the upstart Federal League threatened to undo the notorious "reserve clause," which bound each player to his team like an indentured servant. The clause was laughably illegal, an obvious violation of the Sherman Antitrust Act, but Landis took care of that. First, he arranged a backroom deal in which the Federals were paid off and the monopoly restored; then, in a breathtaking masterstroke, Landis almost certainly used his influence to obtain baseball's antitrust exemption from the Supreme Court. With competition gone and players stripped of all legal protection, he was soon able to suspend Babe Ruth for having the audacity to play ball in the offseason. All the sordid details can be found in a marvelous scholarly paper called "Larceny and Old Leather" by Prof. Eldon Ham of Chicago-Kent Law School. Ham also pronounces Landis "the game's chief racist," and notes that it is no coincidence that desegregation occurred only after Landis' death.

Now, I’ve defended baseball’s antitrust exemption many times, not for its virtue as a stand-alone policy, but as a demonstration that antitrust laws don’t accomplish their stated objectives. The “reserve clause” was a bad business model. It was not, however, an “obvious violation” of the Sherman Act. The Sherman Act bans “[e]very contract [or] combination . . . in restraint of trade”. Read literally, this bans every act of commerce in the United States. That’s why the Supreme Court has spent nearly a century saying that the Sherman Act only bans “unreasonable” restraints; what constitutes “unreasonable” can’t be objectively defined. When baseball was exempt from the antitrust laws by the Supreme Court, the antitrust laws were still in their developmental years, and it was hardly clear how far the laws should be applied.

And keep in mind, the old reserve clause no longer exists, not because of antitrust enforcement, but because the players finally unionized and stood up to the owners. Unions, it should be noted, are also exempt from the antitrust laws, yet you rarely hear anyone calling for that exemption to be repealed.

That said, Hirshberg’s overall criticism of Landis is on the mark. He was an autocratic racist who hurt the game far more than he helped it. Even Landis’ signature accomplishment—banning the Chicago “Black Sox” players for life for taking money to fix the 1919 World Series—was tainted:

By far the most scandalous aspect of the Black Sox scandal was not the fix, but the legal proceedings that followed it. Three players confessed and eight were indicted, but before the case went to trial, the grand jury records, complete with confessions, went a-missin'. They turned up four years later in the possession of one George Hudnall, who just happened to be [White Sox owner] Charles Comiskey's lawyer. Apparently, someone, or several someones, had decided that a public trial would be bad for the baseball business. So the players were acquitted; but Landis, in a final insult to American justice, banned them from baseball for life, as he put it, "regardless of the verdict of juries."

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Capitalism and the Law: Now that he's looted Visa, what's next? 

:: Posted by Nicholas Provenzo at 4:19 PM

It's no secret that here at CAC we think little of antitrust law and even less of the antitrust bar. Antitrust punishes businessmen for their success and most antitrust lawyers accept its faulty premise, even as they attempt to defend their clients. So when I first glimpsed the headline "Founding Member Resigns From Constantine & Partners" in a press release I received today, I wondered for a moment if Mitchell Shapiro, a prominent member of the antitrust bar suddenly found his conscience and realized the corruption in his chosen field.

In my dreams. It simply seems that now that since Mr. Shapiro is richer that God from his recent victory in the Visa Check/MasterMoney antitrust suit, he’s decided to pursue "new opportunities." Here’s the press release:

NEW YORK, Jan. 6 /PRNewswire/ -- Mitchell C. Shapiro, a member of Constantine & Partners, P.C. has resigned from the Firm effective January 2, 2004. Mitch was a founding member of Constantine & Partners in 1994 along with Eliot Spitzer, Bob Begleiter, Yang Chen, Jeff Shinder, Abby Milstein and Lloyd Constantine. Mitch played a major part in the Firm's role as lead counsel for U.S. Merchants in the landmark Visa Check/MasterMoney Antitrust Litigation, which concluded last month with the District Court's final approval of a settlement of more than $3 billion in compensatory relief and a historic injunction.

In the wake of that victory, Mitch has decided to pursue new opportunities. The Firm wishes Mitch continued success and appreciates all his work for the Firm and its clients.

How grand for him, but I for one, don’t wish Shapiro continued success. I wish him unmitigated failure, on the grounds that I find that a man who dedicates himself to organized looting to be a parasite in the first degree. The sooner the victims of antitrust victims reach the same conclusion, the sooner men like Shaprio and his ilk will be made irrelevant.

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The War: Deep in the heart of Texas 

:: Posted by Nicholas Provenzo at 11:06 AM

Texas remembers a fallen son.

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Sports: Pete Rose (and Bill James) Exposed 

:: Posted by Skip at 10:22 AM

Pete Rose finally admitted he bet on baseball. Hey, how 'bout that?

Thomas Boswell, the Washington Post's chief baseball columnist, nicely explains the reasons why Rose's mea culpa should not gain him reentry into Major League Baseball, which banned him for life in 1989. Boswell describes the position of former MLB commissioner Fay Vincent, who was second-in-command when Rose was banned, on Rose:

"We were misguided [in 1989]. We thought he would be contrite. It just wasn't in him. I wish he were more contrite even now. John Dowd [who headed baseball's investigation] is owed a big apology," said Vincent, adding that Rose even hurt those who tried to defend him. Vincent cites one well-known baseball author who "wrote five pages about how there was 'not a shred of evidence' in the Dowd report" and another "who excoriated us for running roughshod over Pete's rights. Where are those people today?"

The "well-known baseball author" is Bill James. I don't know why Boswell doesn't name him. James has been a Rose apologist since the beginning, and his attacks on John Dowd are well documented. James has been working as a consultant to the Boston Red Sox, whose general manager is a disciple of James' statistical analysis methods. If I were Boston management, I would seriously consider severing all ties to James. For years James insisted Dowd had no evidence, despite the existence of Dowd's report, which presented substantial and credible evidence of Rose's gambling. James essentially argued that Dowd and Vincent were liars. Such an attack on the integrity of the former MLB administration in defense of a man who violated baseball's cardinal rule should not be tolerated in the face of Rose's admission.

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Capitalism & Law: Confirming First Principles 

:: Posted by Skip at 9:50 AM

In an interview with Howard Bashman, Tenth Circuit Chief Judge Deanell Reece Tacha discusses her concerns about the decaying judicial confirmation process:

The tenor of that process concerns me for a very different reason than the effect that it has on the judge. I worry about how it affects the public. There is ample evidence that the public has very little understanding of the court system, the judicial process generally, and even of the way that we decide cases. When candidates for the judiciary are so publicly questioned about their personal views on various controversial issues of our day, I feel that the public is increasingly convinced that judges base their decisions on their personal views rather than case law, statutes, and relevant facts. In my view, the confirmation process is an excellent example of one of the places where the public could be educated appropriately about the role of an independent judiciary, the true meaning of a government of laws and not of people, and some of the basic tenets upon which this nation was founded. Regrettably, when the public is only exposed to such rancorous questioning about personal viewpoints, it reinforces the cynicism about whether the judicial process is fair for all people. I fully recognize and applaud the constitutional role that the Senate has in the confirmation process. I only wish that all three branches of government would spend some time taking the high ground of educating the public about some of the basic first principles upon which this nation was founded. Regrettably, I think the confirmation process as it stands today is counterproductive in that respect.

This is a stinging rebuke of Sen. Chuck Schumer and his ideological lynch mob, although Judge Tacha does not identify the Democrats expressly. When Schumer talks about opposing nominees not in the "mainstream," he is rejecting the "first principles upon which this nation was founded." Indeed, America was not founded by the mainstream, but by revolutionaries who tossed aside centuries of monarchy to create the world's first modern republic.

But more to Judge Tacha's point, the confirmation process has now become a battleground for a handful of interest groups, rather than a place to explain to the public how the courts work. And for all of the preening and posturing, there is virtually no discussion about genuine "ideology". The White House shares much of the blame for this with the Senate. Traditionally the White House—regardless of party—muzzles judicial candidates prior to their appearance before the Senate Judiciary Committee. This neuters potential judges in the face of organized interest group opposition. It also forces judges, when appearing before the committee, to act is if they have no ideology or deeply-held beliefs. Remember, the White House wants judges confirmed. They don't want to see a grand explication of ideology a la the courtroom scene in The Fountainhead.

Janice Rogers Brown, a nominee to the D.C. Circuit, is the most tragic recent example of these policies. In reviewing Justice Brown's opinions with the California Supreme Court and her outside writings, she reveals herself to be a true champion of property rights and other individual rights principles that most conservative jurists wouldn't touch with a ten-foot pole. This puts her outside Chuck Schumer's judicial mainstream, which long ago adopted "group rights" as their organizing principle. Yet when challenged before the Judiciary Committee—a group of mediocre lawyers who couldn't hold their own against an unshackled Janice Brown—the White House largely fell back on its political platitudes without mounting a serious ideological attack.

This of course reflects the White House's lack of commitment to first principles. As these confirmation battles continue to mount, I have started to reluctantly conclude that the White House values their embattled nominees as political weapons rather than ideological clashes. In other words, President Bush would rather have a distraught nominee like Janice Brown—an African-American woman—to parade around come election time than he would a Circuit Judge Janice Rogers Brown. I wonder if the senior White House staff actually bothered to look at Justice Brown's principles, as I did, or if they just saw a black woman they could parade around for the cameras.

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Random Stuff: Absorbency & Accountability 

:: Posted by Skip at 1:11 AM

My man, Steve Czaban, offers this thoughtful critique of contemporary American advertising:

I don't know what kind of man-hating channel I stumbled on to see this commercial, but I swear it exists. Guy and girl are on a "romantic" little rowboat ride on a lake. Rowboat springs a leak in the hull. Guy panics. While guy isn't looking, girl whips out tampon (yes, TAMPON!) and stuffs into hole, stopping the leak. Sweet music plays. What the f***? I mean, really what the f*** is that?

I've seen this commercial. My reaction wasn't quite as virulent, though I did wonder about the meeting where the ad agency pitched this idea. It makes me long for the classic tampon ads where mother and daughter would discuss "freshness".

On a less uncomfortable note, Czaban also calls out the Washington Post for being asleep at the switch on Steve Spurrier's resignation from the Redskins:

In and around town, many people were very skeptical about Steve Spurrier's return, except for one person. The paper's Redskins BEAT WRITER Mark Maske. Maske kept writing, and insisting on local TV shows, that he believed Spurrier would be back. Ooops. Now, speculation has always been, that Maske is the Redskins' "house man" at the Post, and will write basically press releases based on what Dan Snyder wants in the paper. I don't know this for a fact but I know one thing: if you are considered a "great journalistic newspaper" and the beat man for the only team in town that matters is the only guy who gets whipsawed by Spurrier leaving, does that embarrass anybody? I mean, if you were an editor at the Post, and wanted your man to "get the story" then how would you react after the guy who's been with the team for the last three years ends up entirely wrong about the biggest story of the year?

Like Czaban, I won't delve into whether the Post is Dan Snyder's towelboy. But Czabe's right on the merits. Maske mishandled the biggest story on his beat this year, and his editor almost certainly won't hold him accountable. You can say, hey, it's just sports. But it's still part of the news operation. Suppose the Post's Supreme Court beat writer reported the Court was about to rule one way on a case, and it turns out exactly the opposite. This should be a major embarassment for the Post. Still, I doubt the reporter would be punished. Professional journalism doesn't emphasize internal accountability. This is why nobody should be surprised when the New York Times continues to run amok.

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Rights & Reason: Stopping Child Labor Before it Starts 

:: Posted by Skip at 12:55 AM

John Holzmann blogs on H.R. 4319, a nasty piece of legislation that effectively prohibits anyone under the age of 18 from holding gainful employment without government permission. The bill requires all minors seeking employment to obtain a government-issued permit from their local school district. No minor may work during school hours. This sounds logical until you realize that there are private- and home-educated students who don't follow the government school's schedule. Even so, these minors also require a permit from the government school.

Second, the bill bans minors from peddling goods or services door-to-door... unless they're peddling for a school or nonprofit organization. This means it would be illegal for teenagers to work for their parents' business if it involved door-to-door selling for any kind of payment. As Holzmann notes: "Notice, however, that, despite the 'dangers' this law is supposed to protect kids from, it permits use of children by public schools and other non-profit organizations to achieve their ends. Kids "simply" can't go ahead and engage in pecuniary pursuits for their own or their family's benefit."

Third, the bill laundry lists various items a minor can't use while employed, such as riding lawnmowers, ladders, and most importantly, deep fryers. This last item effectively prevents gainful employment at McDonald's. Which is largely the point. Like most labor legislation, this bill is being aggressively sponsored by the unions. It makes sense for them—the more restricted entry-level jobs are, the more room there is for union power to expand. Giving government schools—i.e. teacher unions—the power to control the employment of minors outside the system provides a powerful reminder to parents that the state is prepared to use force to quash individual freedoms.

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:: Monday, January 05, 2004 ::

Antitrust News: Viva Sasol! 

:: Posted by Skip at 4:43 PM

Last month Sasol North America, a chemical manufacturer, asked the FTC to reopen and dismiss a consent order Sasol’s predecessor agreed to in 1991. That agreement required Sasol, then Vista Chemical, to actually create a new competitor. Vista was being acquired by a German manufacturer, and the FTC believed the combination would reduce competition in the market for “high performance alumina,” an industrial compound. The FTC forced Vista’s acquirer to license intellectual property and other “corporate know-how” to a firm called Discovery Aluminas. The FTC told Discovery to open a new alumina production plant in Louisiana, thereby restoring the competition lost by Vista’s acquisition.

Well, things didn’t turn out the way the FTC planned. Discovery did build a plant in Louisiana, but they never entered the market. The EPA and the Justice Department shut down the plant for violating environmental regulations. The plant has since been resold, but the resale effectively ended Sasol’s obligations under the 1991 FTC agreement.

But all was not lost. While Discovery was screwing up, three new firms, all Sasol customers, entered the alumina market on their own initiative. The high performance alumina market is now more competitive then ever, no thanks to the FTC’s Discovery plan. This may come as a shock to those people who believe antitrust is the bedrock of our economy, but as this case demonstrates, a market run by businessmen always outperforms a market run by antitrust lawyers. Hopefully the FTC is contrite enough in this case to grant Sasol’s petition and put an end to a totally useless case.

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Rights & Reason: Altruism for the Soul 

:: Posted by Skip at 10:29 AM

Virginia Postrel reviewed Gregg Easterbrook’s new book, “The Progress Paradox: How Life Gets Better While People Feel Worse,” for the New York Post. Postrel was duly unimpressed:

The book's naive economics is even worse than its folk psychology. Easterbrook treats the economy as an automated machine aimed at "the manufacture and distribution of the maximum volume of goods and services."

In fact, the market is a complex feedback system that maximizes not volume but value, which is as likely to be intangible as physical. But intangible value, at least other people's intangible value, is greedy waste to Easterbrook.

Middle-class people, for instance, are snapping up Maytag's aesthetically appealing Duet washer-dryer, which costs $2,200, instead of buying an equally functional set for $1,000. The extra $1,200 is just "money-burning" and would be better spent on charity.

But consider this: A Duet will last at least 10 years, so the additional $1,200 amounts to $2.30 a week. That's less than half what Easterbrook spends on perishable flowers. Whose aesthetic pleasure is "money-burning"? Easterbrook is understandably sympathetic to the hardships faced by poor people amid plenty. But his solution to poverty is to wave a magic policy wand.

Every American and legal immigrant should have health insurance, he says. What system should we adopt? He doesn't tell us, nor does he address the myriad feedback effects and distortions that any such system entails. Is everyone entitled to knee-replacement surgery?

We should raise the minimum wage to "at least $10 an hour," he says. Doubling the minimum wage would make the "prosperous majority" happier, because they "could enjoy their positions with a clearer conscience."

Easterbrook’s theory, in essence, is that people only feel good when they’re altruistic, and selfishness is a necessary evil that produces necessary wealth while killing the human soul. Like most altruists, Easterbrook emphasizes intent over effect. He wants poor people to earn more money and have health care, and he’s indifferent to how that actually affects other participants, such as employers and doctors. In his view, those people should want to sacrifice their “greed” to make themselves feel better. But it’s just a tradeoff: Feel better now, pay for it later. When the minimum wage cripples your labor market, and socialized healthcare leads to a mass exodus of physicians, people will be less prosperous and less happy. At least then we won’t have a paradox.

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The Courts: Paying Judges 

:: Posted by Skip at 9:51 AM

On New Year’s Day, Chief Justice William Rehnquist issued his 18th annual “Year-End Report on the Federal Judiciary”. The Chief has two major gripes: Judges aren’t paid enough, and mandatory sentencing laws are crimping judicial independence. Congress should pay attention to these criticisms, especially in light of the Senate Democrats’ insistence that only “mainstream” judges be confirmed to the bench. Both Democrats and Republicans fail to recognize over-politicization of the judiciary has actual consequences.

The Chief Justice has no qualms about seeking a judicial pay raise. In 2001, district court judges were paid $145,100, the same salary as members of Congress; appellate judges earned $153,900; and Supreme Court justices, $178,300 (the Chief Justice received $186,300, the same salary as the vice president and the speaker of the House). These figures may seem high to the casual observer, but several factors need to be accounted for. First, judges are paid substantially less than they would earn in the private sector. This is true of almost any government position, but it’s particularly troublesome with judges, since low salaries will tend to lessen the quality of applicants, especially in the lower courts. A junior partner at a major law firm can easily earn $250,000 annually, almost twice a district judge’s salary.

Second, judicial caseloads have increased far more than salaries. In fact, salaries have been losing value in recent years because they’re not automatically indexed to adjust for inflation. From 1993 thru 2001, the real pay of judges declined about 13% because Congress would not provide adequate adjustments. The reason for this failure is simple: Judicial salaries are tied to legislative and executive salaries. Congress won’t raise the courts’ pay without raising their own, and the latter is perceived as politically unpopular most years. Had Congress allowed just the annual cost-of-living adjustments in full, district court judges in 2001 would have earned $159,300 rather than $145,100. At the same time, judicial caseloads, which are not tied to inflation or congressional action, have increased substantially. In 1969, a court of appeals judge handled about 123 cases annually; by 2001, that figure had jumped to 363 cases per judge. And when the Senate refuses to confirm judges for political reasons (or really any reason), this only increases the caseload on the remaining judges.

Third, judicial salaries are uniform throughout the country, whether a judge lives and works in an expensive area like San Francisco or a cheaper one like Topeka, Kansas. Most executive agencies vary their pay to account for differences in cost of living. But this is not the practice with judges, and it only creates another disincentive for individuals in major markets to stay in the private sector rather than take a low-paying district court judgeship.

To add insult to injury, Congress won’t even provide adequate funding for the judiciary as a whole. The Chief Justice’s report takes Congress to task for this neglect:

The Fiscal Year 2004 budget process has been a difficult one, and the Judiciary's appropriation for the fiscal year that began on October 1 will not be enacted until sometime in January, 2004, at the earliest. The delay in enacting an appropriations bill has disrupted the Judiciary and forced it to operate at inadequate levels of funding under continuing resolutions.

We appreciate that, for Fiscal Year 2004, the omnibus appropriations bill currently pending includes $222 million for new courthouse construction and $248 million to repair existing courthouses. The Judiciary's funding for Fiscal Year 2004 included in the omnibus appropriations bill, however, is inadequate.

The continuing uncertainties and delays in the funding process have necessitated substantial effort on the part of judges and judiciary managers and staff to modify budget systems, develop contingency plans, cancel activities, and attempt to cut costs. Many courts may face hiring freezes, furloughs, or reductions in force. I hope that the Congress will soon pass a Fiscal Year 2004 appropriation for the Judiciary, and that in future years the Judiciary's budget is enacted prior to the beginning of the fiscal year.

It’s inexcusable that the judiciary wasn’t fully funded at the start of the fiscal year last October. Even though the omnibus bill has been held up for political reasons, both the military and Homeland Security were fully funded at the start of the fiscal year. The judiciary is just as essential. Unfortunately, the judiciary’s funds are tied into the same appropriations bill with the executive departments of state, commerce, and justice. The judiciary is not considered important enough by the appropriations committees to merit a separate appropriations bill, as is the case with the White House and congressional budgets.

I don’t know how much the Chief Justice wants salaries raised, but personally I would not object to a massive increase. Even if we paid every judge on the federal bench $500,000 annually—about what a senior partner at a successful firm can earn even in a bad year—the cost to the taxpayers would only be about $500 million. Consider what Congress spends money on, and then ask yourself if we can take a half-billion of that to pay our judges competitively.

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:: Saturday, January 03, 2004 ::

Capitalism & Law: Banning Ephedra... But for How Long? 

:: Posted by Skip at 2:10 PM

At first glance, you might think consumers would stay away from a product the government considers dangerous enough to ban. Yet that’s not happening with ephedra:

Online retailers are reporting a run on ephedra products as consumers make last-minute purchases of the dietary supplement that the federal government plans to ban.

The Food and Drug Administration announced Tuesday that it will ban ephedra in March. The agency urged consumers to stop taking the herbal ingredient, which has been linked to 155 deaths in the United States.

* * *

A sales representative at Dps Nutrition Inc., a Taylor, Pa., online supplement store, said ephedra products such as Extreme Ripped Force, ECA Stack and Diet Fuel have been dominating sales this week.

"We're seeing a record number of sales for ephedra products," the sales representative said, refusing to disclose her name.

Bodybuilding.com, a Boise, Idaho, online supplement retailer, posted about 2,000 orders for ephedra products on Tuesday, the Los Angeles Times reported. That one-day sale doubled the company's previous record.

Metabolife's original 356 formula, a weight-loss supplement with ephedra, was selling on EBay yesterday for $60 to $100 per 104-capsule bottle. Its ephedra-free counterpart was selling for $5 to $16 per 90-capsule bottle.

The FDA is treading on shaky legal ground in banning ephedra. Herbal supplements are not subject to prior authorization by the FDA, meaning the agency must affirmatively demonstrate ephedra is dangerous in order to ban its sale. Ephedra producers will almost certainly challenge the FDA ban in court. But the fight is worth the FDA’s time, since a victory will strengthen the agency’s ability to control and regulate other supplements. Like all bureaucracies, the FDA sees itself as a guardian of the “public interest,” and the best way to fulfill that mission is by acquiring as much power as possible.

The market, however, can still undermine the FDA’s authority. Even after the ban takes effect, ephedra will still be bought and sold in unofficial markets, many of them made possible by the internet. Unlike Prohibition of the 1920s, it’s no longer necessary to organize a massive crime syndicate to undermine the government’s authority. We’ve already seen what online Canadian pharmacies have done to undercut the FDA’s ban on importing prescription drugs. The more the FDA pushes for regulation, the more the market will push back. If I were a betting man, I’d put my money on the market ultimately prevailing.

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:: Friday, January 02, 2004 ::

Capitalism & Law: "Board Certified" Commercial Speech 

:: Posted by Skip at 11:47 PM

The commercial speech doctrine reared its ugly ahead again in today’s Ninth Circuit opinion in American Academy of Pain Management v. Joseph. The AAPM is a 15-year old group that maintains voluntary standards for various professionals that administer pain medication, such as dentists, athletic trainers, and chiropractors. AAPM sued Ronald Joseph, the executive director of California’s Medical Board, because the state of California restricts the ability of AAPM members to advertise without the Board’s permission. The issue is whether California can exclusively define the term “board certified”.

“Board certified” generally refers to a physician certified by a specialty board. The problem here is who decides what boards can certify. California law prohibits a physician from using the phrase “board certified” in any advertising unless the board referred to is itself accredited by a group called the American Board of Medical Specialties. ABMS, like AAPM, is a voluntary nonprofit organization that maintains professional standards. Unlike AAPM, however, ABMS has been granted coercive power by most state governments to restrictively decide which specialty boards may “certify” physicians, and which may not. In California’s case, a physician may not claim to be “board certified” by any specialty group that doesn’t meet ABMS’s approval.

AAPM did not meet ABMS’s standards. For example, the Ninth Circuit’s opinion refers to a dispute between the two groups over the length of the certification exam administered by AAPM; it lasted about two hours. ABMS and the California Medical Board require an exam of at least sixteen hours. Reasonable minds can certainly differ on this question, but California allows for no competition or discussion: ABMS sets the rules for everyone, even though it’s a private organization, not a government agency.

AAPM argued that California’s prohibition on using “board certified” in advertising without ABMS accreditation violated AAPM’s First Amendment rights. The Ninth Circuit panel disagreed. Their basic argument is superficially compelling: California law defines “board certified” to mean certification by an ABMS-approved specialty board, thus AAPM’s attempt to use the term amounts to misleading advertising.

This is a compelling argument only if you believe California has the right to define commercial terms of art. We’re not talking about a trademark or intellectual property. ABMS does not have proprietary use of “board certified”. Furthermore, the certification standards are themselves completely arbitrary; they can be changed at the whim of ABMS or California without any rational context. This means the issue is not whether AAPM’s proposed advertising is truthful or beneficial to consumers, but rather whether AAPM is willing to subject its professional judgment to the dictates of ABMS and California regulators. This defeats the whole point of voluntary professional societies.

Unfortunately, under the commercial speech doctrine, California’s position is consistent with existing Supreme Court precedent. The Ninth Circuit held the state has an interest in preventing consumers from being misled into thinking the state is endorsing AAPM’s standards, which apparently the term “board certified” conveys. This exposes the very flaw discussed above: The entire point of voluntary societies is to develop standards and practices based outside of the state’s arbitrary exercise of force.

Put another way, consumers should be free to receive and judge information for themselves outside of state-approved entities. Given the easy accessibility of information today, a consumer can easily review the accreditation standards of different societies and decide for themselves which standards make the most sense. The commercial speech doctrine, however, was created by the Supreme Court long before the Internet, and the justices paternalistically assumed the public was subject to easy manipulation outside of state protection from “false and misleading” advertising. The Court has also failed to recognize state-run licensing regimes as monopolistic cartels. Together, these two judicial errors have produced a litany of useless, “anticompetitive” regulation that violates the spirit and the letter of the Constitution.

(Editor's Note: This post was board certified by the American Academy of Webloggers, Fiskers, and Krugman Stalkers. This certification may not be valid in California, Tennessee, and any state with a "d" in its name.)

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Antitrust News: Pleading in the New Year 

:: Posted by Skip at 10:57 AM

If you think the Bush administration cares first and foremost about preventing terrorist attacks, consider how the Justice Department’s been spending its time lately:

Micron Technology, as part of an agreement to win amnesty from prosecution by the Justice Department, may admit it conspired with competitors to manipulate computer-chip prices, people familiar with the probe said.

Boise, Idaho-based Micron, the world's No. 2 maker of memory chips, is in talks to provide information to bolster a possible U.S. case against three other companies in the $16 billion market for dynamic random access memory, or DRAM, chips, the people said.

The U.S. is probing whether Micron conspired with Infineon Technologies, Samsung Electronics and Hynix Semiconductor.

Cooperating with the agency could allow Micron executives to avoid prosecution.

The DRAM antitrust investigation centers around an alleged short-term price increase that happened two years ago. There is no fraud, coercion, or other criminal act at the center of this investigation, only the DOJ’s insistence that businesses not take any action to affect prices in their markets.

If the DOJ was capable of putting things in context—and they are not—they would see memory chips have never been cheaper or more plentiful. Even if there were some private agreements among competitors, the market as a whole has not suffered. But the Justice Department employs hundreds of lawyers and has empanelled more than 70 grand juries just to investigate antitrust matters. They will find something even where nothing exists.

To be sure, Micron didn’t help itself when one its executives pled guilty to obstruction of justice related to the antitrust investigation. The executive apparently altered notes about chip prices after they were subpoenaed by the grand jury investigating Micron. While I don’t condone this, the truth is Micron would be in trouble either way. The truth does not matter to the DOJ, only altering facts to meet their pre-determined subjective reality.

And I’m not sure I can condemn Micron for seeking a deal. Really, what choice do they have? If they don’t settle, they’ll almost certainly be indicted on criminal antitrust charges. Executives will be sent to jail. I have no trust in a jury’s ability to see the inherent irrationality of antitrust. Most people will simply assume Micron is just another corrupt corporation like Enron or WorldCom, and Micron will be punished for those firms’ sins.

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:: Thursday, January 01, 2004 ::

Foreign Affairs: Can the Irish Save Civilization? 

:: Posted by Skip at 10:58 AM

Today Ireland assumes the rotating presidency of the European Union for six months. This is one of the few encouraging developments at the EU in recent memory. Unlike its continental counterparts, Ireland's government, under Prime Minister Bertie Ahern, has promoted lower taxation and deregulation as the foundation of its economic policy. The result has been faster growth for Ireland when compared to most of the EU. This enrages the EU bureaucracy in Brussels, which wants reduced "tax competition"--meaning higher taxes--throughout Europe. Ahern says he'll use the Irish presidency to promote deregulation in a number of areas. Here's hoping Ahern finds even some success.

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Rights & Reason: Civil Rights vs. Common Sense 

:: Posted by Skip at 10:51 AM

Glenn Reynolds posted this selection from a story in the Washington Times:

The 17-year-old junior says that stance inspired threats from which teachers have refused to protect him. Some faculty members even started a public campaign against his group. . . In a telephone interview, Tim said he's been threatened at least three times . . . . One boy said he was going to "find someone" to beat up Tim. In two of those instances, Tim said two faculty members stood by and did nothing to help him.

Reynolds suggests the Justice department should look into this matter for potential violations of the student’s civil rights, because of “the apparent complicity of state employees in the suppression of speech they find disagreeable.” Based on my reading of the same story, Reynolds is wrong.

First, let’s provide some context. The student, Tim Bueler, founded a Conservative Club at his public high school. The club’s stated mission is to promote “the pillars of the Bible, patriotism and conservative beliefs as balance to the mostly liberal viewpoints of teachers.” The club’s newsletter published an article by Bueler criticizing illegal immigration. The Times cites one passage from the article: “Liberals welcome every Muhammad, Jamul and Jose who wishes to leave his Third World state and come to America.” Bueler says he was threatened by other students, that one teacher refused to help him deal with the threats, and that several teachers have called him a “Nazi” and a “bigot”. The Times quotes a biology teacher, Mark Alton, as calling on students to “take a stand against the neo-conservative wing-nuts who call themselves Americans.” This was in response to the Conservative Club’s maintenance of a “liberal assault hotline” designed to report incidents of teachers that “verbally assault” conservative students.

Alton said he doesn’t oppose the Conservative Club’s presence, but adds, “[w]hat bothers me is the extreme views that border on racism or homophobia, the negative tone, and the hotline that calls teachers ‘traitors’.”

Neither side here—Bueler or the opposing teachers and students—seem to exhibit much in the way of rational or mature behavior. But based on the information provided in the Times, it doesn’t add up to a federal civil rights violation. First, Bueler appears to have gone out of his way to upset the entire school. This is not a case where a student is being singled out merely because he expressed an unpopular opinion. Second, there is no evidence in the article that speech was suppressed. Far from it: Bueler’s club remains operational and no threats have been acted upon. Furthermore, the teachers have responded by defending themselves from Bueler’s verbal attacks. I don’t think civil rights law requires teachers to stand there and not respond what they believe are false accusations, be it from a student or anyone else. Yes, the “Nazi” and “bigot” remarks are out of line, but I’m not sure what can be done about that in the setting of a government school. A private school principal could discipline or fire a teacher who treated a student that way; public school administrators generally lack that ability because of state tenure laws and union contracts. As for the threats against Bueler, assuming they’re genuine, the state and local authorities already have laws in place to deal with this behavior. I presume the entire state of California isn’t part of the conspiracy to silence Bueler’s important message.

This leaves only the issue of the principal telling Bueler to stay home for a few days. I don’t necessarily agree with this move, but again, it doesn’t suggest to me a federal civil rights violation. I’d certainly like more information before even considering Glenn’s call for John Ashcroft to get involved. Once again, context is essential. If you have a student who is deliberately making himself a target by, in essence, calling on students to rebel against “liberal” teachers, you have an order and discipline issue. I’m going to assume the school would act if someone actually hurt Bueler. But given that he’s just inspired hatred, what exactly should the principal do? Should he give special protection to Bueler? If so, you’ve just invited every malcontent student to make even more inflammatory remarks. Would Glenn call for a civil rights inquiry if the school asked a student who went around insulting Jews to stay home until things calmed down?

The larger problem I see in stories like this is the intellectual decay of the conservative movement. From what the Times reports, Bueler strikes me as a pretty pathetic activist. He’s probably read too much Ann Coulter and listened to too much Bill O’Reilly. Rather than advocate his ideas in a responsible manner, Bueler seems more comfortable with cheap stunts designed to annoy his enemies.

You see a lot of this inflammatory confrontation in the young conservative movement. It’s become a modern form of feminism, emphasizing the victim status of conservatives at the hands of the liberal establishment. Conservatives lash out because they believe no thinking person will listen to them otherwise. The standard of success for these conservatives is not winning converts to their side, but making the other side as angry as possible. This explains, in part, the popularity of “affirmative action bake sales” on many college campuses.

None of this suggests Bueler and his ilk aren’t entitled to full First Amendment protection. But let’s keep that in context as well. The First Amendment prohibits only prior restraints of speech by the government. It does not insulate speakers from all criticism and consequences of their speech. The Times report provides no evidence of any prior restraint, merely a lot of upset people. And before Glenn reiterates his call for a civil rights investigation here, he should stop and consider what a liberal Justice Department would do with such an interpretation of the civil rights law in their hands.

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:: Wednesday, December 31, 2003 ::

The War: What's wrong with this picture? 

:: Posted by Nicholas Provenzo at 2:03 PM

Here's a New Year's Resolution: Rather then witness the image of the Statue of Liberty under the barrel of a machine gun, we ought to endeavor to give the capitals of Iran, Syria, North Korea, and Saudi Arabia the benefit of such a sight.

This picture concretizes the failure of the Bush Administration's policy of "homeland defense" in no uncertain terms. Rather than pacify the governments that make terrorism against the US possible, rather then pacify their skies, the Bush Administration is pacifying our skies.

Yet can such a strategy hope to work? For example, could a policy of securing American borders and searching every container ship as it enters American harbors stop an attempt to smuggle a nuclear bomb into America better then destroying the facilities capable of producing such a bomb? I doubt it.

If there are enemies who aim to attack us, every effort ought to be placed on destroying them before they can even think about approaching our borders. I wonder though, even after the horror of 9/11, if the US has the stomach to truly fight all its enemies.

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:: Tuesday, December 30, 2003 ::

Antitrust News: The Atlantic Divide 

:: Posted by Skip at 10:33 AM

Earlier this month the European Court of First Instance—the rough equivalent of the U.S. Court of Appeals for the D.C. Circuit—upheld a $8.4 million fine imposed in 1999 against British Airways. The European Commission found the airline guilty of antitrust violations, specifically that the company “abused its dominant position” by offering rebates to travel agents that sold the most British Airways tickets. Under European antitrust theory, such rebates are illegal because it’s just too darn hard for other airlines to compete against the dominant firm.

This case exposes a key difference between European and American antitrust theory. In the U.S., regulators focus on short-term consumer prices. If a particular action doesn’t substantially raise prices, the FTC and DOJ will usually let a company be. Europe, in contrast, considers any dominant firm to be inherently suspect, and thus any action they take to assert their economic dominance—regardless of impact on prices—is an antitrust violation. Put another way, U.S. regulators consider their mission to protect the competitive process, while European officials want to protect specific competitors from dominant firms. That’s precisely what happened to British Airways, as the case against them was brought by rival Virgin Atlantic.

The European antitrust view will become more problematic for the U.S., as American firms are targeted with greater frequency by Brussels. Microsoft is one such target. Another is Coca-Cola, which runs a rebate program similar to the one that got British Airways in trouble. The Bush administration has made a priority of increasing international antitrust cooperation. But will this cooperation force U.S. officials to adopt the more rigid, anti-capitalist stance of European antitrust regulators? Recent history suggests it will. The White House has allowed its own antitrust regulators to expand their scope and authority without oversight, and there is little indication the administration will stand up against European aggression in this area.

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The Culture: All Children Left Behind 

:: Posted by Skip at 10:17 AM

Yesterday’s Wall Street Journal reported that the “No Child Left Behind” law has had an interesting (and for my money, predictable) consequence: States are cutting back on funds for gifted and talented programs to focus on making all students “proficient” in basic skills. NCLB doesn’t reward students for excelling, only for minimum competence. And because it’s a federal mandate, NCLB leaves little room for local variation or experimentation.

Now, the cuts to gifted and talented programs should not alarm or upset anyone. Such programs are inherently incompatible with public education, which must emphasize collective mediocrity over individual achievement in order to survive. Now if that concept upsets you, then you shouldn’t support government-run schools. But you can’t have it both ways: Demanding excellent achievement for some children while allowing others to languish. Government schools are about egalitarianism. Or, put another way, they’re about “socialization”.

The fundamental error in education policy is the confusion between socialization and education. The two are not coterminous. When men interact in a society, it is for two primary reasons: knowledge and trade. There are of course other purposes, such as friendship and love, but knowledge and trade form the foundation of social relationships. Young children, however, have not yet developed intellectually to the point where they can fully grasp those concepts.

The educators will tell you “socialization” helps children learn in a group setting. But this is a false identification. Nobody learns “in” a group. They can learn from a group, particularly those individual members with existing knowledge. But there is no group consciousness that can substitute for the work of an individual mind.

In a group, children do not form a society based on the exchange of knowledge and trade; they form a society based on peer pressure and force, such as bullying. William Alford, a student at George Mason University, recently offered these insights into this subject:

Children, Dr. Graham tells us, if left to devise their own society, would most likely come up with something resembling William Golding’s The Lord of the Flies. In other words, an 11-year-old’s social milieu is “crude… stupid… [and] savage.” Given the similar authority figure-to-inmate ratio and the detachment, it also resembles prison. G. Gordon Liddy, having spent five years in federal ‘correctional institutions,’ often says on his radio program that the prisons are actually run by the prisoners.

Children are not intrinsically this way, Dr. [Paul] Graham argues. Mongol teenagers or Renaissance apprentices probably did not engage in such bullying behavior because they were busy. Suburban teens are, he continues, instead warehoused in schools mostly for baby-sitting and being drilled information that is perceivably less and less relevant to anything applicable in the real world. Now that children are not working alongside adults as they learn their crafts, they have little identification with [or respect for] the adult world and thus devise their own:

“Since the group has no real purpose, there is no natural measure of performance for status to depend on. Instead of depending on some real test, one's rank ends up depending mostly on one’s ability to increase one's rank. It’s like the court of Louis XIV. There is no external opponent, so the kids become one another's opponents in an inexorable zero-sum competition.”

It is important to point out that the child specialists [in the cited and other researched materials] do not consider bullying to be ‘normal’ -- and certainly not acceptable. They almost universally characterize it as destructive unnecessary behavior that must be actively curbed – some even naming it as a disorder. Although the professional literature certainly demonstrates a clear grasp of what causes bullying, solutions are not as definitive. There are vague recommendations to mobilize parents and teachers to combat the problem. There is little evidence offered of any effective answers.

Bullying, like much of the drug abuse problem among teenagers, can be traced directly to the existence of government schools. This is an admission no government official will ever make. Even a Republican president like George Bush has no political interest in challenging the system’s fundamental premises. Instead he focuses on isolated concretes like raising test scores, themselves a somewhat arbitrary measure.

The biggest threat to the government education establishment is not any politician, but the people who’ve rejected the system—the home educators (I personally dislike the word “homeschooler,” since education and schooling are distinct concepts). Students taught at home by committed parents aren’t “left behind”; quite the contrary, they’re far ahead of their government-institutionalized peers. This is why in many states the establishment is trying to pass new laws to stunt the growth and success of home education. Again, we’re told these laws are necessary to ensure “socialization”. But as William Alford notes, both socialization and education prosper outside of the government’s watchful eye:

In this writer’s not-so-humble opinion, child socialization and education are in many ways incompatible, especially for juveniles. These should therefore be separate experiences, wherein the child is individually educated according to his/her abilities. Socialization should be carefully supervised, with the parents and other concerned adults deciding which children will be interacting with each other and under what circumstances -- not a government-run institution staffed by the likes of NEA members.

(Thanks to Daryl Cobranchi, a proud home educator, for pointing me to the Alford article.)

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:: Monday, December 29, 2003 ::

Capitalism & Law: The Highest Court in the Land 

:: Posted by Skip at 10:50 AM

The Supreme Court’s workload has been decreasing for years under Chief Justice William Rehnquist. Steve Chapman, writing in Saturday’s Washington Times, notes that lawyers have started to complain about the Court’s lack of production:

Philip Allen Lacovara, [h]as argued numerous cases before the court. Writing in the December issue of the American Lawyer, he notes that in 1976-77, a typical year for that era, the court issued decisions after hearing oral arguments in 176 cases. In its 2002-03 term, by contrast, the number was 73, which is about the norm these days.

It's not that the court is strapped for the resources it needs to handle its caseload. Each justice now has four law clerks to provide assistance, up from one or two a few decades ago. Petitions to the court that used to be read by actual justices now are often left to clerks. It takes about $86 million a year to produce those 73 decisions.

Chapman and Lacovara both argue the Court ignores too many important cases worthy of attention. Most notably, the Court “has come to disdain cases that involve economic regulation.” That’s completely true. One example that comes to my mind is the Three O Realty case, which the Court declined to review. In that case, New York State blatantly abused its eminent domain power by falsely claiming “blight” as an excuse to take private property and give it to another private owner—the New York Times, as it turns out. This case screamed for review, yet like almost all eminent domain abuse cases, the justices couldn’t be bothered.

Chapman also echoes my longheld belief that the Court suffers from opinion glut:

The court's shrunken caseload only proves idle hands are the devil's workshop. As the justices have fewer cases to resolve, they spend far more time on gratuitous hairsplitting. Many of them often act like pop divas in concert — less intent on harmonizing than on outdoing each other in showy solos.

One fairly simple Fifth Amendment case last term somehow split the court more ways than a shattered windshield, yielding six different opinions, with few of the justices able to agree on much of anything. The recent decision on the Bipartisan Campaign Reform Act of 2002 was a law student's worst nightmare, running nearly 300 pages and requiring 26 lines of small type just to score the votes. If these nine go out to dinner together, you can bet they insist on separate checks.

Deciding fewer cases doesn't seem to produce happier justices. Nasty sniping is far more common than in previous decades. Justice Antonin Scalia is particularly prone to spice his disagreements with insults. Last term, he said a verdict striking down sodomy laws "is the product of a court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda."

It’s almost like the Court has become a overpriced, underperforming NBA team—lots of star players who can’t come together as a team and win. The fact that the Court is now largely controlled by its star pragmatist, Sandra Day O’Connor, only makes things worse.

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