The next stage in administrative centralization: fiscal policy

It has been a key tenet in the current ideology of liberal democracy that, while regulatory powers are being transferred from Congress to the presidency, fiscal authority remains firmly in the hands of Congress. The power to tax and spend is at the core of sovereign power, and so as long as Congress retains this power, we aren’t really yet in a system of presidential primacy, as some people have argued.

Yet there are clues that even the fiscal power is drifting over to the executive branch, or at least away from Congress. The New York Times today reports on efforts by economists and central bankers to persuades legislatures to spend more money in order to stipulate economic growth. But Congress won’t; it’s gridlocked as always. So who is going to do it?

The central banks, of course. It has long been understood that while central banks are supposed to limit themselves to “monetary policy” (controlling the money supply by buying and selling securities, lending to and borrowing from banks, and so on), they have in recent years been engaging in fiscal policy as well. They do this mainly by purchasing long-term government bonds, private bonds, and quasi-government bonds (like GSE bonds). These purchases are premised on the assumption that, by promoting economic growth, they will eventually drive up interest rates, which will result in the loss of value of those bonds, in which case the central bank will lose money and pass those losses onto the “government” (Congress and the president), which will need to raise taxes or cut spending.

This has always been true—indeed, in my own hazy understanding the distinction between monetary and fiscal policy is not very clear, since the government expects to receive the “profits” from monetary policy in any event and plans accordingly—but the key point, as reflected in the Times article, is that the more overtly fiscal aspects of central bank activity is being normalized, as a result of lingering post-crisis economic stagnation, here and in other developed countries, along with legislative gridlock.

True, the president does not control fiscal policy—not yet—but the gradual, barely noticed, shift of fiscal policy from Congress to a regulatory agency deserves more attention than it has received.

Olympic Participation and Women’s Rights

A Guest Post by Adam Chilton:

Are the number of women on a country’s Olympic team a good proxy for women’s rights in that country? Yesterday, Ryan Briggs–a political scientist at Virginia Tech–suggested the idea on Twitter and then decided to take a look at the data.


As Briggs’ above graph shows, the fraction of women on a country’s Olympic teams has clearly gone up over time. The relationship between women’s rights and Olympic participation, however, is less clear.


In the graph above, Briggs plotted the proportion of women in a county’s parliament against the fraction of women on the country’s Olympic team in 2012. Somewhat surprisingly, there is almost no correlation. To look into the data more, I decided to use some of Briggs’ code to scrape the data on Olympic participation and merge it with data from the Gender Equality Index (Eric and I have used this data previously to study the effectiveness of human rights treaties).

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The above graph shows my results. To be clear, these are just exploratory scatter plots that do not control for other variables, and more carefully analysis would have to be done before reaching any definitive conclusions. That said, the data seems to suggests that there used to be a fairly strong correlation between higher scores on the Gender Equality Index and women’s participation, but that over time countries have sent more women to the Olympics faster than they’ve improved their human rights.

It’s an interesting question why countries with poor women’s rights records increasingly send as many women to the Olympics as countries with good records. If I had to speculate, I’d guess that these countries believe that the boost that Olympic medals provide to national pride is worth the costs of sending any athlete that qualifies to the Olympics regardless of gender.  But whatever the reason, hopefully women’s Olympic participation will increasingly create pressure for countries to invest more in their women in other ways too.

Trump and the Originalists

Trump does not hold any discernable constitutional philosophy but Trumpism owes its meteoric rise in part to originalism, which was so forcefully championed by Antonin Scalia over his long career. I see Trumpism as having three parts: (1) a policy commitment to economic nationalism and law and order; (2) a nativist emotional appeal; and (3) a nihilistic attack on elites and elite institutions—nihilistic because there is no explanation as to what will replace them, only the hope that something better will. It’s #3 that I associate with originalism.

It’s not that originalism itself is nihilistic—quite the contrary. Originalists believe that constitutional law today should be based on the understanding of the Constitution and its amendments when they were ratified. According to its supporters, the original understanding supports a limited national government of the sort that existed before the twentieth century. Such a government would be deprived of the power to interfere with people’s economic and political liberties but would remain strong enough to protect the country and support a national market.

The nihilism lies not in the vision itself, but in the implications, which were originally implicit, but have been spelled out more explicitly in the last two decades, with Scalia as champion. The argument is that because American law and legal institutions have deviated from this understanding, they are illegitimate. The entire administrative state—the EPA, OSHA, Obamacare, social security, and all the rest—is illegitimate. The administrative state is the apparatus through which the national government accomplishes its objectives; without it, it can hardly do anything beyond defense and internal security.

And what this means is that presidents from FDR (if not earlier) to Obama have wielded authority that they did not have. That Congresses have betrayed the nation by acquiescing in the aggregation of presidential power. That the Supreme Court has failed to enforce the Constitution. Nearly all the officeholders at the top of our government over the last century have violated their oath to defend the Constitution.

While the view now is that the cancer has metastasized, at one time originalists and their fellow travelers thought that the remedy was simple and could be accomplished within constitutional forms. All that was necessary was for the public to elect a president who takes the Constitution seriously, and for that president to appoint originalists to the Supreme Court. Optimists believed that even liberal jurists could be persuaded to adopt originalism, leaving even Democratic presidents no choice but to appoint originalists to the bench. Once in office, these justices would work to overturn a century of precedents and welcome home what has been called the “Constitution in exile.”

During the Reagan administration it was just possible for an intelligent person to believe in this vision. High-level officials really did take this view seriously and expended effort to bring it to reality. But they failed. It turned out that there was no mainstream political support for originalism—in a substantive as opposed to merely rhetorical sense. Most ordinary people admire the founders but want a strong national government, and all the goods that it provides—from social security to environmental protection.

The major cause of the failure of originalism was thus practical and political. Reagan was able to appoint only one Supreme Court justice who was an originalist—Scalia himself. His other two appointments—Kennedy and O’Connor—were not originalists. Over the years, presidents—whether Democrats or Republicans—failed to appoint originalists (except Clarence Thomas). In retrospect, two major knells of originalism’s doom were the appointments of Alito and Roberts by George Bush—solid conservatives but not originalists. It also became clear that Bush did not care about originalism or even the Supreme Court; not even ideologically conservative presidents could be depended on to ensure an originalist Supreme Court. Meanwhile, Supreme Court decisions themselves—while more conservative than in decades—did nothing to dismantle the administrative state, in fact, to the contrary, affirmed it.

Scalia finally realized this. His initial happy-warrior pose gave way to bitterness, and over the years his dissents became increasingly shrill, as he came to use them as platforms to attack the Court rather than merely to disagree with his colleagues.

It was quite a rhetorical trick, but Scalia managed to anticipate Trumpian populism by associating the constitutional vison of the aristocratic founders with democracy, and accusing the liberal justices—who emerged from and hobnobbed with the same exclusive circle of establishment types as he did—of being out-of-touch elites. It was this claim that helped pave the way for Trumpism. A key element of Trump’s appeal derives from the sense that American institutions have failed us. Scalia, and the Republican politicians who deified him, confirmed this view by placing the blame squarely on the shoulders of a hopelessly corrupted Supreme Court while invoking a nostalgic vision of purer times. And who would be better placed than Scalia to make this accusation? The old, moderate response of Republican presidents from Nixon to Bush—“we’ll appoint better justices”—no longer persuades. They promised and failed to deliver. The rot is complete, the structure must be set alight in a long overdue Gotterdammerung.

I suspect that the vanishingly tiny number of pro-Trump conservative intellectuals described by Peter Beinart see in him Sulla, who reestablished republican institutions after his dictatorship, not Caesar (as Beinart claims), who sought to dismantle them permanently. I find it hard to imagine Trump, as dictator legibus faciendis et rei publicae constituendae causa, going to the trouble of proscribing the Democratic party, only to place nine originalists on the Court before retiring discreetly to Mara-a-Lago. But with the conservative intellectual establishment in ruins, there’s nothing left but hope.

Property Is Another Name for Monopoly

That’s the title—or the beginning of an uncharacteristically long title—of a paper that Glen Weyl and I have posted on SSRN. Here’s the idea:

Every year you send to a registry the amount that you value your house. The property tax you pay is a percentage of the valuation. But you’ll resist the impulse to value your house at 1 cent because if you do, someone will come along and buy your house from under you. That’s because of the other element of the scheme: anyone can force a sale of your house at your self-assessed valuation. The tax is keyed so that you will honestly reveal your valuation, to the extent compatible with maintaining incentives to invest in improving the house.

One person I described this idea to reacted very negatively, at one point calling it “socialism” and at another point calling it “the market gone wild.” Or maybe it’s both? Or neither? You’ll have to read the paper to find out.

Is Trump a threat to the constitutional order?

Without quite saying so, Jack Balkin hints that he may be. Others, like his Balkinization colleague Sandy Levinson, are more confidant that he is. So is he?

Let’s start with Trump’s policies. He is skeptical about international trade and immigration, supports law and order, and wants to reduce regulation and taxes. His position on social issues is ambiguous and probably moderate. This is an unusual combination of views for a presidential candidate, but these positions are hardly beyond the pale. There are respectable (if not necessarily correct) arguments for all these commitments, and they enjoy the support of millions of Americans, and have at various times in recent history been pursued by the national government, as well as the governments of other liberal democracies. If President Trump kept his campaign promises in good faith, he would hardly be a threat to the constitutional order, whether the policy consequences would be good or bad.

The real source of alarm seems to be Trump’s incivility, and his reckless and frequently erroneous statements—including sarcastic asides, jokes, and semi-deniable provocations that have offended millions of people. Yet most of these statements are not statements of policy or intention but merely (incredible) rudeness to people who are generally treated respectfully by politicians even in the heat of a campaign. It is possible to argue that a person who says that a judge is biased against him because of the judge’s Mexican heritage would also, as president, defy the Supreme Court. Or that someone who would ban Muslims from entering the United States would also be willing to round up American Muslims and put them in internment camps after the next Islamist terrorist attack. But these are leaps of logic—like saying that because Hillary Clinton is willing to accept Syrian refugees onto American soil, she wants to forcibly convert all Americans to Islam. Trump’s offensive verbal attacks might disqualify him from the presidency on political grounds, but they do not show that he plans to violate constitutional norms.

The major import of these statements is what they say about his temperament. But here again, while I agree that Trump lacks the temperament to be president, this is a political, not a constitutional, judgment, unless perhaps one thinks that he is literally insane, say a “sociopathic narcissist,” to quote Sandy. But he’s not insane, and this flinging around of medical vocabulary words as if they meant anything should be avoided.

Jack concludes his post with these words:

On the other hand, it’s also possible that if Trump wins in November, people will become increasingly fearful about what he and his allies will do. As the time grows closer to Trump’s actually taking office, people’s views about what the Constitution allows may undergo significant change. For example, we might see vigorous debates about the responsibility of members of the electoral college to vote their consciences rather than for the candidates who won their respective states. We might also see debates about what will throw the election into the House of Representatives (for the Presidency) and the Senate (for the Vice-Presidency). We may even see schemes floated that try to place Mike Pence, or Tim Kane, or even Speaker Paul Ryan in office instead of Trump or Clinton following a deadlock in the House; or schemes that try to use the Twenty-Fifth Amendment to keep Trump from exercising the powers of the Presidency on the grounds that he is mentally unstable or incompetent.

The striking claim here is that even before Trump takes office, some substantial portion of the public—or (more likely) of the elites—will try to block a democratically elected president from taking office (albeit by reinterpreting the Constitution as though they were law professors). I don’t think there is any possibility that this will happen—unless Trump announces during his campaign that he plans to shut down the courts and Congress. (Which is unlikely but I suppose one can’t rule out anything this campaign season.) Trump will likely lose the election just because all of offensive statements will cost him political support, as they should; that’s how democracy works. And if he doesn’t, our panicking liberal elites will need to decide whether to throw their lot against democracy as Jack predicts they will (as the liberals did in Egypt but not in Turkey), but if they do, then they will need to acknowledge that the threat to constitutional order is not Trump, but they.

Trump is a recognizable type. He is the twenty-first century version of the billionaire rabble-rouser who gains power by appealing to the mob—almost a stock character in the waning years of the Roman Republic. The founders certainly feared such a person, but the major obstacles to the presidency that they created or kept in place in order to keep a demagogue out of the office—property qualifications for voting, indirect elections, federalism, separation of powers—have mostly been dismantled. Even in our democratic age, it seems that some people are coming to appreciate the vision of elite-led democracy that these institutions were meant to sustain. Trump may not threaten the constitutional order himself, but he is provoking the elites to reconsider their support for a constitutional order in which someone like Trump could be elected president.

Developing Systematic Reviews for Legal Research

A guest post by Will Baude, Adam Chilton, and Anup Malani.

Yesterday we argued that claims about legal doctrine are frequently made without sufficient support, and argued that this can be a problem that should be remedied. Today we will briefly sketch our proposed solution.

In response to analogous concerns, other disciplines have developed methods for conducting “systematic reviews” of prior findings on a research question. Individual studies may have limited statistical power to answer a research question and their conclusions may be bound by the specific circumstances in which they were conducted. By contrast a review could aggregate the data and contexts from multiple studies to yield both a more precise and generalizable study. But it is important that the reviews be conducted in a rigorous way that minimizes the kind of bias and error we have discussed.

Although there are a number of variants of systematic reviews, they generally have four steps. First, the researcher should state clearly the question she is attempting to answer. Second, the research must justify and be transparent about how she defines and obtains the sample for her review. Third, the research ought to explain any weighting that is applied to the cases in the sample. Fourth, the researcher needs to justify and be transparent about the manner in which she analyzes the sample cases she reviews.

We argue that the insights of systematic review can be extended to law. It is true that legal analysis tends to be qualitative rather than quantitative, and that legal analysis is more likely to embed normative issues, but in our view those are not reasons to ignore the lessons of systematic review. On the contrary, a rigorous methodology allows us to separate positive and normative contributions and move arguments forward.

In our new essay, we explain exactly how we’d extend these four steps to legal analysis, and provide an example of a systematic review in action. Read it if you’d like to learn more.

Making Doctrinal Claims More Rigorous

A guest post by Will Baude, Adam Chilton, and Anup Malani.

At a recent symposium on Developing Best Practices for Legal Methodology, we proposed a set of principles for rigorous demonstration of claims about legal doctrine. Legal scholars, advocates, and judges commonly make such claims, we thought, but without a systematic demonstration of supporting evidence. One question we received from many of the participants at the symposium was whether this was indeed a common phenomenon.

So to get a better sense of how frequently doctrinal claims are made without systematic support, we reviewed every article published in the last completed volume of ten top law reviews. For each article, we had a research assistant read the abstract and record any claim about the state of legal doctrine. The research assistant then read the article and recorded the evidence that was provided as support: at most a single case, multiple cases, or some form of a systematic review (that is, define the entire set of cases that was relevant to the claim and the evidence to support it).

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The results of this review are in the above table. Our analysis suggested that roughly 50% (69 of 139) of articles included a claim about the state of legal doctrine in the abstract. Of these 69 articles, only about 20% (14 of 69) provided any form of systematic review to support the doctrinal claim. The rest of the articles provided string cites to cases (and occasionally, academic articles as well), but did not explain how they identified the universe of cases or whether they are representative.

This strikes us as suboptimal. To be clear, we have no particular reason to think that the doctrinal claims made in these articles are wrong. And we do not fault anybody for failing to adhere to a norm that does not yet exist. But our argument is that are important reasons that legal academia should develop a standard that helps legal analysts more rigorously document their claims about the state of legal doctrine.

Here are five reasons. First and most obviously, a more rigorous demonstration of evidence makes it easier for readers to evaluate the truth of a claim. Second, it is easier for readers to assess how confident to be in a claim. Third, it can prevent mistakes, even by experts. Fourth, it increases general progress in the field because it makes it easier for future research to build on the work from the past. Fifth, it helps reduce the risk or perception of bias.

Tomorrow we will present our proposal for how doctrinal claims can be made more systematically. If you are interested in reading more, you can read our essay on the topic that is now forthcoming in the University of Chicago Law Review.

Tyrannophobia in the Age of Trump

It’s time to dust off this old paper, which I wrote with Adrian Vermeule; see also this book where it reappears as a chapter. Tyrannophobia is now definitely a thing. It’s made its way onto Wikipedia (the author of the entry writes with admirable brevity) and even a medical diagnosis website (possibly of questionable utility).

And, of course, it’s made its way into the media:

He’s not Hitler, as his wife recently said? Well, of course he isn’t. But then Hitler wasn’t Hitler—until he was.

Symposium: Developing Best Practices for Legal Analysis

A guest post by Will Baude, Adam Chilton, and Anup Malani.

How can the distinctive methodology of law be pursued carefully and rigorously? Much of the core task of a lawyer, a judge, or a researcher amounts to assessing substantive legal materials, like constitutional provisions, legislation, or court decisions. But these materials are often canvassed and analyzed non-systematically. Although there are already extensive debates about how to interpret statutes or constitutional text or precedents, those debates tend to center on substantive disagreements about the legal effect of the provisions and not the more methodological question of *how* a given interpretive approach should be pursued. The academy can help by developing best practices for careful analysis.

On May 6th-7th, the University of Chicago Law Review will bring scholars together for a symposium on this subject: Developing Best Practices for Legal Analysis.  In addition to ourselves, the participants for the event include Oren Bar-Gill, Omri Ben-Shahar, Curtis Bradley, Melissa Carlson, Vince Chhabria, Frank Easterbrook, Richard Epstein, Richard Fallon, Tom Ginsburg, Abbe Gluck, Katerina Linos, Florencia Marotta-Wurgler, Bernadette Meyler, Richard Posner, Fred Schauer, Lawrence Solum, Barbara Spellman, Nick Stephanopolous, Cass Sunstein, and Adrian Vermeule.

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Why Republicans oppose Garland

This is another way to see the effects of confirmation of Garland, consistent with the Epstein analysis I cite in Slate. It’s irrelevant that he’s a “moderate liberal” if he is. If he were farther to the left, then Breyer would be the median justice.

What is it that the supreme court does, anyway?

Not write legal opinions:

Imagine a hypothetical law student, walking the halls of law library in the year 1954. This law student notices on the floor a few pages torn out a Federal Reporter, perhaps 1,000 words in all, but lacking direct information identifying the authoring court. This student sets himself or herself the task of trying to guess whether the opinion was written by the Supreme Court or an Appellate Court. If that student performed as well as our classifier, he or she would have a roughly 70% chance of being right. Transport our hypothetical student to the present day and he or she would almost certainly be able to identify the case, even if the page lying on the floor was from a case that had been selected for review by the Supreme Court.

From Livermore et al., Agenda Formation and the U.S. Supreme Court: A Topic Model Approach.

The point is that the Supreme Court uses a different language and style from that of lower courts. You might say of course it does–it gets more important cases after all–but if so, then why is this a recent, post-1960 phenomenon? What was going on back in the old days?

The politicization of the Supreme Court, its transformation into a political body that uses moral and policy reasoning to resolve society’s most important controversies, is connected to my analysis of the Garland nomination in Slate. Republicans in Congress would be crazy to confirm him if the reason is that he’s a “judge’s judge.” In a political court, the politics of the justices is all that matters.

Law of The Donald

If Trump is elected president, will constitutional law and American political institutions protect us from a would-be dictator? Europeans worry about the emergence of Caesarism in the United States, just as the founders did when they invented the presidency. Authoritarianism is making gains around the world; why not here? Of course, Trump may not want to be a dictator. He has repeatedly stated his desire to make “deals,” implying a willingness to cooperate with Congress. But there is no reason to believe anything he says; many of his actions and statements are those of someone with a dictatorial mentality if nothing else, and his popular support derives from his authoritarian image: he appeals to people who yearn for a strongman to protect them. So the question is worth asking. What is the answer?

Let’s consider one of Trump’s proposals: to strengthen libel law so that he can punish those who criticize him. Could he do this? He cannot do it by executive order, and he probably cannot do it even if he persuades Congress to pass a law. First Amendment doctrine is clear: a court would strike down the sort of libel law that Trump advocates (or appears to advocate).

But there are ways that Trump could maneuver around this barrier. If he can appoint flunkies to head the Department of Justice and the FBI (Chris Christie, maybe?), they can order agents to spy on a political opponent and bring prosecutions. All that is needed is a reasonable suspicion of law violations, and there are so many laws that any prominent person, particularly journalists and opposition politicians, might violate even if inadvertently—campaign finance laws, tax laws, business licensing laws, and secrecy laws come to mind, depending on the person’s activities—that an excuse for audit, inspection, or surveillance can be ginned up. Judges can interfere at various steps along the way; whether they do will depend on whether there are plausible reasons to think that the person has broken a law (think of Hillary Clinton, for example). While nothing may come of the investigation, the risk of such harassment, if pursued vigorously enough, may deter opposition to Trump at the margin.

This is not to say that Trump would do any of these things. Exposure of politically motivated investigations could damage him politically; and—a theme to which I will return—lower-level officials might refuse to carry out his plans. But there is a long tradition of this type of behavior, both within our country (Nixon) and without (Putin, to pick one of countless examples).

Trump has other avenues for harassing political opponents—and I confine myself to strategies that are within the realm of the possible as suggested by American political history. But first we need to distinguish two routes to power. In the first, Trump sweeps to victory with enormous popular support as well as the support of the Republican establishment, which finally decides to make peace with him. In the second, Trump barely manages to win the election, perhaps because Hillary Clinton at the last moment is indicted for violating secrecy laws. He comes to power with the support of an enthusiastic minority but opposed by both parties and the majority of the population.

For the first, the model is FDR. But FDR was repeatedly blocked by the courts, as Trump would surely be if he sought to exercise dictatorial power. With the Senate on his side, however, he could appoint Trumpian judges and justices; he could even beat the Supreme Court into submission by threatening to pack it as Roosevelt did. Still, I think none of this will come to pass. Even if Trump is elected, he will not have FDR’s majorities in Congress, or last as long as FDR, or command as much popular support. Working with congressional support, he could do some of the things he says he wants to do—end Obamacare and build a Mexican Wall (assuming that he really wants to do these things, which I doubt). But then by definition he is not acting as a dictator. The possibility that a President Trump uses a temporary political majority to strengthen executive power and demolish the remnants of the opposition, in the manner of Hugo Chavez, is a possibility but not one that is (yet) worth considering.

The more interesting case is the second. A President Trump opposed on all sides by Congress, the courts, the media, and all the rest of the establishment, but supported by an enthusiastic base, could accomplish the great things he imagines only if he exercised something like dictatorial power. At a minimum, he would need to:

— Get his people into the bureaucracy, either as recess appointments or as “advisers” who don’t need Senate approval. If he refuses to appoint moderates demanded by the Senate, his advisers may be able to persuade civil servants to implement Trumpian policies but maybe not.

— Use his personal funds to sue his political opponents, and persuade law enforcement to audit, monitor, and investigate them, as discussed above.

— Impound funds appropriated by Congress and use them for projects like expelling illegal immigrants. This is technically illegal, but presidents have for decades denied the constitutionality of the anti-impoundment statute, and Trump’s lawyers could repeat these arguments.

— Build political support by declining to enforce unpopular laws, for example, the land-use and environmental laws that are so unpopular in the west. He can cite Obama’s immigration enforcement actions as precedent if need be. He can exclude Muslims, at least temporarily, if he wants to.

— Focus on foreign affairs, where he has a freer hand. He can threaten to withdraw military and economic aid to Mexico unless it pays for the Wall. He will give the military maximum support. The military is the most trusted public institution; if he can bring it to his side, he will obtain credibility from the wavering middle.

The first point is the most important. The president acts through other people; Trump cannot accomplish anything unless he can place loyalists in positions of power. If the Senate is unified against him, recess appointments and advisers will accomplish little. If he must compromise on appointments, and independent people become attorney general, head of FBI, and the like, then Trump will not be a dictator.

On the other hand, a president’s patronage opportunities are limitless. If Christie has already fallen in line, many more can be expected to do the same. The president wields a veto and can interfere in countless ways with Congress’ legislative goals. Using his veto and appointment power, Trump may be able to make the deals he cares about—giving the Senate laws and patronage positions in return for approval of the positions that he cares about, the positions in the Justice Department, the military, and the judiciary. Moreover, even if a Trumpian movement remains a minority personality-cult, it could hold the balance of power in a enough states to produce natural allies for Trump in Congress.

The separation of powers is a flimsy constraint on Trumpian ambitions. The federal bureaucracy is probably a more significant one. It has proven itself time and again skilled at opposing presidential power through embarrassing leaks, working-to-rule, simple inaction, and, in extremis, threatening to resign. Still, this barrier may not give much reassurance.

What of political constraints? Trump will need some support in Congress, and if the public detests him, representatives will keep their distance. Public hostility will also strengthen the hand of courts and the bureaucracy. If he is to gain significant public support, he will need a grand success. Taking a page from Putin, he could combine a ruthless military victory against a weak but unpopular enemy (but what exactly?) and extraordinary luck—an economic recovery that just happens to occur when he takes office. But in America, even this is not likely to be enough.

Still, Trump has already done some clever things to immunize himself from future political damage. These tactics have received surprisingly little commentary.

First, he has refused to make promises. More precisely, while he has made a very few promises, he has contradicted himself so many times, no one really expects him to keep those very few promises, or has any idea what he might do as president. Normally, this vagueness would be fatal. For whatever reason, it has worked for Trump. The upshot is that as president, unlike other presidents, he will not be constrained, not even minimally, by promises he made on the campaign trail, and so he can do whatever is most expedient.

Second, he has refused to work through the Republican establishment. Working through the Republican establishment means making commitments to party leaders and supporters, which would constrain his behavior as president. But because he has not made such commitments, he faces no such constraints as president—again, unlike any other president in modern times.

Third, he has disregarded what might be called “political manners.” He has casually insulted Latinos, Mexicans, women, disabled people, and veterans. He has mocked and belittled his political opponents. One might say, as his defenders do say, that Trump doesn’t really mean what he says. But that misses the point. By unsettling the implicit rules of the game which govern our politics, he has further eliminated constraints on his presidency. Will he eliminate affirmative action in federal hiring? Or will he strengthen it? No one knows. Having thrown into doubt the unwritten rules that have constrained other presidents, he has more scope to act as he sees fit.

Many of the informal but powerful ways that politics constrains presidents with authoritarian tendencies will not constrain Trump. Whether that means he will be Caesar if elected remains to be seen. I think the likelihood is extremely remote. It is much more likely that his authoritarian tendencies will clash with a legalistic political culture and an individualistic political culture, yielding disruption and gridlock. But that is reason enough to be alarmed.

Supreme court justices select their clerks on ideological grounds

chilton clerks

Or so it appears. The CFscore on the y-axis measures the clerk’s ideology (based on donations to political campaigns) from liberal (-2) to conservative (+2). Scalia is just an example but the trend is notable; the other justices are equally bad (or good, depending on your point of view). And it turns out that lower courts follow the pattern though not quite as strongly. From a new paper by Bonica, Chilton, Goldin, Rozema, & Sen.

How influential was Scalia, really?

I’ve read a lot of claims about Scalia’s influence over the development of the law. His fans insist that even if Scalia’s position did not always (or even usually) prevail in the major cases heard by the Court, his theories of constitutional and statutory interpretation have forced other justices and lower-court judges to write analytically tighter opinions. For reasons I’ve given elsewhere, I’m skeptical. But these things are heard to measure. Is there something measurable we can look at?

According to Jeffrey Toobin,

During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues.

If true, this seems like a damning indictment. A justice who, in insisting on the purity of his principles or perhaps in indulging in the charms of invective, gives up the opportunity to shape the law does more harm than good for his followers. To see if Toobin’s claim is true, I collected a list of “landmark cases” from Wikipedia (where else?), and asked an RA to count up the number of majority opinions written by each justice starting with Scalia’s first term in 1986, and excluding the justices who left the bench in the early 1990s. Normal empirical-research caveats apply. Here are the results:

landmark opinions

Scalia doesn’t look too bad. No surprise that the two chief justices would reserve many of the most important cases for themselves, and that Kennedy and Stevens—perennial swing-voters—would devour the lion’s share of the others. Still, in a right-leaning court Scalia hardly distinguishes himself.

Scalia has also been on the bench a lot longer than the others. Adjusting for years on the bench, one gets a more accurate view of his capacity to influence the law.

landmark opinions per year

Scalia does worse than Alito, his junior by many years, and barely surpasses Kagan, another junior who is hampered by her position on the left. Will Scalia go down in history as a justice whose ability to influence the law fell somewhere between that of Souter and O’Connor?

Kirkland and Ellis Distinguished Service Professor, University of Chicago Law School