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Month: August 2024

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When Does a Democracy Die?

photograph of statue of liberty silhouette

The Democratic party refrain of 2024 has been that democracy is on the ballot. Certainly, Trump’s actions have raised concerns from the events of January 6th to his continued denial of the results of the 2020 election (and refusal to commit to accepting future election results), to a recent controversial quote: “In four years, you don’t have to vote again. We’ll have it fixed so good, you’re not going to have to vote.” (Trump later provided some clarification.)

And yet the Democrats have hardly been maximalist about democracy this election. When Biden was his most stubborn during the nomination process, he asserted that the voters had spoken, despite the lack of a competitive primary. Later, when he stepped aside, Harris was advanced to the top of the ticket without a public referendum.

Of course, the spirit of Democrats’ rallying cry is not that this or that behavior is undemocratic, but rather that the former president represents an existential threat to American democracy. This raises a surprisingly challenging question: When does a democracy end? And how do we know?

We tend to speak of democracy in generalities: rule by the people, majoritarian rule, etc. Yet most modern democracies are a complex jumble of elements subject to varying levels of impact from the voting public. In the United States for example, senators and representatives are elected by the people (more democratic), whereas the president is selected through the electoral college (less democratic), and the Supreme Court is appointed (less democratic). It is worth noting that “democratic” is not always the same as good. Some notionally “less democratic” elements, such as courts, may be important safeguards for the protection of minority rights, as both Benjamin Rossi and I have previously discussed. The complexity of modern democracies hinders the ability to make simple, clear-cut distinctions and comparisons.

When evaluating failures of democracy, one strategy is to start with a minimal definition. The idea being that when these core features go, so does democracy. The conservative political theorist Joseph Schumpeter famously argued that democracy requires nothing more than competitive elections. Others have longer lists. For example, the theorist Robert Dahl enumerates six: elected officials; free, fair and frequent elections; freedom of expression; alternative sources of information; associational autonomy; and inclusive citizenship. According to Dahl these are the minimal political institutions required to achieve a functioning democracy. Even minimal approaches do not allow for a crisp delineation between democracy and non-democracy, for each criterion is complicated on its own. How should elected officials be elected? What is required for a fair election? Nonetheless, minimal accounts highlight common important features of democracies and we may be able to identify democratic failures even without a black and white distinction or single authoritative definition.

Alternatively, rather than looking for defining features, we can instead focus on what democracy is supposed to do. America is rather proud of its democratic history, but what makes democracy so great in the first place? Among numerous defenses, a classic approach is “instrumental defenses” of democracy. The idea is that democracy is good because it delivers good results, such as effective policy, economic growth, peaceful international relations with other democracies, and a civically engaged populace. From an instrumental perspective we can worry about the health of democracy – that is, the results it’s delivering – even if we think our democratic procedures are solid. We may think that there has been a democratic failure if a country elects to drastically limit civil rights, even if a majority of voters supported it. Less radically, we might also identify democratic failure with elected officials no longer being responsive to voters after they take office. Popular conceptions of democracy often incorporate features beyond political process, such as rights and liberties, but there can still be disagreement about what exactly a democracy is supposed to do. Nonetheless, considering what we want democracy to do can highlight key elements. For example, it may make sense to limit campaign spending, if we believe it accomplishes an important goal of democracy, like giving citizens with vastly differing personal wealth and power an equal stake in government. An implication of a result-oriented approach is that people may lose faith in democracy if it fails to deliver certain political outcomes.

Assuredly, some democratic failures are especially decisive: a party staging a coup with the help of the military, a president refusing to leave office after losing an election, officials banning a specific demographic from voting. In such cases, we can expect citizens to recognize that a major democratic failure has occurred. But consider the following two scenarios. In case one, an incumbent politician loses an election 48% to 52%, but nonetheless refuses to step down and pressures the judiciary to declare them victorious. In case two, through limiting the number of polling stations and controlling their location in unfavorable neighborhoods, an incumbent party wins an election 52% to 48%. Absent this manipulation of polling stations, they would have lost the election 48% to 52%. The democratic failure is more obvious in case one, but the effect is similar.

The worry is that if people expect certain signals for major democratic failures, they may fail to appreciate the less dramatic ones. Votes can be rigged, voters can be disenfranchised, voting power can be unfairly distributed, and real decision-making power can rest with unelected officials. The public quickly acclimates to less democratic approaches. The United States gladly considered itself democratic for much of its history, even while systematically denying voting rights to Black Americans, women, and the poor. It turns out that democratic lip service and actually democratic political practices come apart quite easily.

Today, Americans are extremely cynical about the state of their democracy. 72% say the U.S. is no longer a good example to follow. But we should not expect the death of democracy to look like just one thing. Voter suppression, gerrymandering, moneyed influence, or an overzealous Supreme Court can undermine democracy as assuredly as a coup. Guided or managed democracies, which maintain the superficial appearance of democracy, even while being largely beholden to an entrenched minority, may be as much of a threat as some extravagant collapse into totalitarianism. If anything, focusing on Trump as a singular threat to democracy interferes with a broader conversation about democratic failures and the ideal that American democracy should aspire towards.

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The Boldt Scandal and Academic Fraud

The BBC recently released a podcast on the legacy of disgraced former German anesthesiologist Joachim Boldt.

“Retracted” follows the story of Steve Shafer, who, while editor-in-chief of the journal Anesthesia & Analgesia, received several emails from readers saying that one of the articles featured in the journal contained results “too good to be true.” The article in question, penned by Boldt, concerned the effectiveness of a specific type of fluid at boosting blood volume during surgery. According to those who contacted Shafer, the data contained within the article was too consistent to be believed.

So, Shafer investigated, and eventually, after the involvement of the state medical board, the paper was retracted due to a lack of patient consent, no approval by the relevant hospital ethics committee, and no randomization. Alongside the retraction, Shafer published an editorial titled Boldt: The Great Pretender. Later investigations found these issues and additional problems with the absence of patient and laboratory data to support the paper’s findings. To put it bluntly, all the evidence suggested that Boldt made the study up. Because of this, Boldt lost his job.

But this was not the end of the story. As news of Boldt’s fraudulent actions spread, editors at other journals where Boldt had published began to look more closely at his work. Unsurprisingly, it was not just a single article that Boldt had fudged, and as of July 2023, he has had 184 papers retracted. According to Retraction Watch, this makes him the most retracted journal author ever.

It does not end there, though. An investigation by Justus Liebig University Giessen (JLU), where Boldt had held a professorship, recommended that:

In view of these inconsistencies and Dr Boldt’s misconduct in this and many other aspects of scientific integrity, JLU recommends that journal editors retract all papers where Boldt is the responsible author even if there is no obvious indication of falsification.

Not all journals have done this, so you can still find some of Boldt’s work in the literature. But it is a damming indictment when an institution with whom you had held a prestigious position calls for all your work to be sent to editorial oblivion.

You might be wondering, then, how did this happen? How was Boldt able to get away with publishing fabricated data in some of the world’s top medical journals without them noticing? And what does this have to do with philosophy?

The answer to the first two questions is multifaceted and complex. The answer to the third will become apparent.

Good academic publishing works according to a system of peer review. In short, once academics have written their findings, they send their work to a journal. This journal then sends it to reviewers for evaluation. They then provide their recommendations to the journal, which decides whether the article should be published, rejected, or refined. Thus, only work deemed worthy by experts is included in a journal (at least, in theory).

This process, however, is imperfect. It relies on the diligent work of numerous actors to function, and these actors are, like all of us, fallible. Even if four reviewers are assigned to a single article, something can still slip by all of them. So, even in the most conducive of conditions, small mistakes, factual inconsistencies, and, yes, even outright fraud can make it onto the pages of even the top academic journals.

But reviewers don’t work in perfect conditions. They are typically under enormous pressure as they’re (usually) swamped. Their jobs include teaching, researching, writing, administration, public outreach, self-promotion, networking, and more. So, if someone agrees to review a paper, they typically have to try and squeeze it into their schedule. This places time pressure on getting the article reviewed quickly so you can get back to the other things they need to do, and rushing the review of complex research makes it more likely that something will slip through the net.

That is, if journals can find someone to review a paper. After all, it’s voluntary. So many academics decline to review papers as they have other things that need their attention. This places even more heavy lifting on those who agree to review, making a journal’s editorial team’s job even more difficult.

This is not the end of the issue, though.

In academia, there is a saying: publish or perish. This refers to the need for academics to write their findings and get their papers in high-esteem, peer-reviewed journals. Failure to do this typically results in a lack of promotion, an absence of salary raises, and, in the worst cases, the loss of one’s job. So, there is an enormous drive to publish work and a lot of it. Indeed, the more, the better. However, what is increasingly lost as an important metric is the quality of one’s work. After all, it is much easier for promotion boards, grant panels, and the like to look at how many papers someone has published than reading all those papers and getting an idea of what insights are contained within.

It is no wonder some unscrupulous academics, feeling the pressure to meet expectations or the allure of professional excellence, employ less-than-reputable means to get their name and work out there. Diligent research takes time; fraudulent research can be quick. (Just look at the rise of paper mills.)

The question of what drove Boldt towards his fraudulent publications is unknown. Since his outing, he has kept a very low profile. I think one could be forgiven for speculating just a little that maintaining his professional reputation — a reputation built upon his research in using fluids to boost blood volume during surgery — played a role. I would also hazard a guess that he thought he would get away with it, and the pressure under which academic publishing has functioned over the past few decades probably fueled such an assumption.

Nevertheless, this is conjecture.

What the Boldt saga can teach us about philosophical research and publishing is the most important bit. After all, philosophy journals use the same peer-review system as scientific ones and face the same pressures and temptations.

For my part, I think what we can learn from Boldt’s actions, his ability to get published, and the length of time it took for him to be discovered is that the existing publishing model — one which rewards quantity over quality — is damaging to research. This applies to philosophy, too. The more we publish, the more energy it takes to maintain the quality of the body of scholarship.

As professional philosophers, we must challenge the system according to which we receive professional rewards and praise. It is upon us to consider whether we should be publishing as much as we are. And it is our responsibility to assess our work’s unintended, cumulative impact on the broader body of knowledge. For every article we publish, we occupy resources which might be better spent dedicated to reviewing, refining, and promoting someone else’s article.

All this is not to say that academics should never publish. Publishing is how we share knowledge and help shape ideas and innovations. It is important. But by going with the flow, by endlessly publishing because we have been incentivized to do so, we make it easier for those like Boldt to slip through the cracks, and that’s not good for anyone.

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Be On Your Best Behavior: On Lifetime Judiciary Appointments

In my previous column, I considered President Joe Biden’s arguments for limiting the terms of U.S. Supreme Court justices. Of the three arguments, only the view that no single presidential term should have disproportionate impact on the Court showed immediate promise. Although, after unpacking the likely justification of this view, I argued that accepting it may require viewing the Supreme Court as a political institution. This result should give us pause as a politically neutral high court is a desirable thing.

Lifetime tenure is the status quo in the U.S. But this mere fact does not automatically make it desirable. Humans tend to favor the current state of affairs, even if there is an advantage to departing from it. So, we ought to consider arguments which can be marshaled in favor of indefinite terms for Supreme Court justices. If these arguments are not compelling, then perhaps the arguments for term limits will gain appeal, simply by virtue of being a better, albeit potentially flawed, option.

The most influential arguments for lifetime judicial appointments in the U.S. come from Alexander Hamilton in Federalist 78, first published in 1788. This paper is part of a collection now commonly called the Federalist Papers, a series of essays in which Hamilton, James Madison, and John Jay sought to offer public arguments defending the various features of the then new United States Constitution, hoping to help ensure its ratification. Each essay offers some defense of a particular aspect of the newly proposed federal government.

In Federalist 78, Hamilton defends the structure of the judiciary. Among those features he wishes to defend, Hamilton argues in favor of lifetime appointments for the justices, using the language of “hold[ing] their offices during good behavior” adopted in Article III of the Constitution to describe this tenure.

He offers three major arguments to defend the judiciary. First, the Supreme Court is the least dangerous of the three branches of government. Second, few people in society will acquire the knowledge and skills necessary for a successful tenure. Third, that lifetime appointments are necessary to secure the independence of the judiciary.

In describing the power of the Supreme Court, Hamilton writes that “The judiciary… has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society; and can take no active resolution whatever. It may be truly said to have neither FORCE nor WILL, but merely judgment.” So, Hamilton’s position is that the Supreme Court lacks power. In his view, all it can do is interpret the Constitution. Further, it has no ability to enforce the decisions that it reaches. The Supreme Court effectively requires compliance from the executive and legislative branches. As Andrew Jackson is often and perhaps apocryphally quoted, “John Marshall has made his decision, now let him enforce it.”

Ultimately, Hamilton thinks that we as citizens have little to worry about from the judiciary. He claims that “though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter… so long as the judiciary remains truly distinct from both the legislature and the Executive.”

Of course, things have changed significantly since the late 18th century. All branches of the federal government, and the United States as a whole, have much greater power than the founders anticipated. In fact, just 15 years after Hamilton’s death, the Supreme Court ruled that the federal government has powers not explicitly granted to it by the Constitution.

Additionally, the Supreme Court has often reshaped the lives and rights of Americans simply by interpreting the Constitution. Since just the mid-20th century, the Supreme Court ended racial segregation, guaranteed the right to a defense attorney for those who cannot afford one, declared laws against interracial and same-sex marriagesunconstitutional, established a Constitutional right to privacy, then used that right to conclude access to birth control and abortion are Constitutional rights, as well as that criminalizing sexual acts between consenting adults is unconstitutional. They have since walked back at least some of these decisions and may do the same for others.

The Supreme Court certainly lacks the power of the executive and the legislative. They cannot make the law and they cannot enforce it. However, their ability to interpret both individual laws and rights guaranteed by the Constitution has the potential to greatly impact the lives of millions, if not all, Americans. Thus, Hamilton’s argument misses the mark in the 21st century. Although arguably not the most powerful branch, the Supreme Court may reshape features of our lives.

Second, Hamilton notes that there are few who can meet the qualifications of being a justice. He writes that “a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound.”  Further, Hamilton notes that “the records of those precedents must unavoidably swell to very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them.” So, Hamilton thinks that few can both develop the skill and character necessary to serve as a justice. There’s simply a lot to learn.

One might, however, wonder if Hamilton’s views here may be a product of the era in which he lived. As described by Jay Alexander, 18th century lawyers typically began practicing law by apprenticing. However, their mentors frequently traveled for trials, leaving apprentices to simply read legal books for weeks or months at a time without any guidance. Under these conditions it is no surprise that it was incredibly difficult to gather the knowledge to practice law, let alone become highly proficient in it. Yet things are different in the 21st century. According to the American Bar Association, there are more than 1.3 million practicing lawyers in the United States as of 2023. For reference, the U.S. population according to the 1800 census was 5.3 million. Of course, most Supreme Court justices are typically justices prior. But many simply had prior legal expertise and worked in careers other than judging preceding their appointments.

It is true that justices ought to be individuals of great knowledge, experience, and character. Yet given the sheer number of individuals with legal training, it is not clear that there are only nine people capable of serving as a justice on the highest court at any moment. So, this does not seem to offer compelling reason for why justices ought to have lifetime appointments. Of course, the U.S. legal code has gotten significantly more complicated since the 18th century. But we are significantly better at training, and produce significantly more, people capable of practicing law.

Finally, Hamilton argues that lifetime appointments judiciary appointments are necessary to preserve the independence of the court, which is required to fulfill their function. He writes “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.”

His rationale is this. Suppose that judges serve limited terms. Presumably, they could be reappointed to the bench. If this is the case, it may bias the judgments of those judges. Rather than making rulings which best fit current law, justices may instead rule in ways which please the executive and legislative branches; the executive branch nominates the justices, and the legislative branch confirms them, so making rulings to please both may go some way towards securing future appointments for justices. Additionally, when discussing the limited power of the judiciary, Hamilton does note that a judiciary aligned with another branch of government creates a great potential for despotism; this has borne out in the 20th century as authoritarian regimes have sought to push out justices appointed by prior leaders and stack the court with loyalists.

Further, we can extend Hamilton’s argument. He focused primarily on justices’ relationships to other branches of government. However, even if justices can serve only one term, they may still have concerns about their future off the bench. Perhaps a concern about their future could lead them to favor corporate or moneyed interests in their final years. After all, a corporate plaintiff or defendant could need a well-compensated legal consult in the near future. We might find this  possibility especially troubling since the Court recently ruled that federal anti-bribery laws do not cover gratuities, the gifts or other forms of showing appreciation given after a public official has taken an action.

This argument seems powerful on its face. We should certainly worry about justices focusing on their future careers rather than remaining independent, impartial interpreters of law. Yet consider the number of scandals regarding the politicalaffiliations of justices and their families, as well as significant personal and financial conflicts of interest. It seems currently that lifetime appointments are not sufficient to counteract the ways in which the justices’ interests, political, personal, or financial, may affect their rulings. The salary and the prestige of the position may not be enough for those individuals ambitious enough to rise to such a high rank.

So perhaps we need to emphasize the way in which Hamilton and the framers of the Constitution described the tenure of justices. Federal justices are not explicitly given “lifetime appointments.” Instead, their tenure is described as lasting throughout “good behavior.” Rather than overhauling the Court, perhaps the solution is simply to hold the justices to that standard. We should demand they at least attempt to be impartial, to avoid even the appearance of conflicts of interest, and step aside from those cases when we have reason to believe their judgment may be biased. If their tenure is to only last during times of good behavior, then we ought to remove those justices unwilling to behave as those with a good judicial character would.

Of course, this requires legislating in good faith and seriously scrutinizing the behavior of even those justices whose rulings we find agreeable. But if we are to have an institution whose members are to interpret the law impartially, we must impartially hold them accountable.

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‘Til Death Do Us Part?: Biden on Supreme Court Term Limits

On Monday, June 29th an opinion piece authored by President Joe Biden ran in The Washington Post. In it, Biden argues for three reforms relevant to the Supreme Court. He endorses amending the Constitution to specify that former presidents are criminally liable for acts performed while in office (a direct repudiation of Trump v. United States and the idea of presidential immunity), introducing a term limit of 18 years and a binding code of ethics for justices. He later repeated his endorsements of these reforms, and the arguments for them, in a speech at the Lyndon Johnson Presidential Library. The calls for reform follow declining public confidence in the Court. Currently, 57% of Americans disapprove of the Supreme Court and view justices as motivated by ideology, judging cases based on their preferred outcomes, rather than “call[ing] balls and strikes,” as Chief Justice John Roberts famously described their duty.

Provided public opinion is not wholly baseless, this suggests that the Court needs some reform. But something does not mean anything. So, we ought to carefully consider the arguments behind Biden’s proposed reforms. In particular, I want to consider the arguments, both for and against, term limits for Supreme Court justices. This column considers the arguments put forward by Biden. A subsequent piece will consider historical arguments used to justify lifetime appointments for Supreme Court justices.

Why focus only on term limits? It strikes me as the most significant of the three proposals. First, although ending presidential immunity may require a constitutional amendment, this simply reverses a recent, controversial court ruling rather than shaking a pillar of American government. Imposing a mandatory code of ethics for Supreme Court justices merely extends rules that already apply to other federal justices. Creating term limits for justices, on the other hand, upends the conventional understanding of the Constitution – Article III of the Constitution specifies that federal judges “shall hold their offices during good behavior” which means that a justice shall hold an office for life, unless they resign or are impeached. Thus, imposing term limits on justices changes a longstanding element of the federal judiciary. Further, it would be a unique limit for Supreme Court justices as other federal justices serve without term limits. Thus, it is worth considering carefully why Supreme Court justices, and not other federal justices, ought to have their terms limited.

So, what are the arguments for imposing term limits? Biden offers three brief arguments in his op-ed and speech. The first argument compares the judicial branch to the executive branch. Biden notes that presidents have had term limits for 75 years, so he thinks that Supreme Court justices also ought to have their terms limited.

This argument is an analogy – the president of the United States may only serve for a limited number of years, so the same ought to be true of justices. But there are many differences between the president and a Supreme Court justice which may lead one to think only presidents ought to have limited terms. First, as outlined above, the Constitution explicitly grants that federal justices indefinite appointments, while the president’s term is limited to four years (although the Constitution does not discuss re-election, and the two term “limit” was merely a precedent until the ratification of the 22nd Amendment in 1951). Second, the President has far greater power than any justice. There is only one current president while there are (normally) nine justices. The president can command the military, reshape federal policy via cabinet appointments, veto legislation, and issue executive orders, among other powers. Meanwhile, the Supreme Court simply has the power of judicial review.  Thus, one might argue that presidents, individuals with great power, need term limits, while Supreme Court justices, being one member of nine with lesser power, do not. So, it is not clear that presidential term limits obviously imply Supreme Court justices ought to have term limits. This is especially true given that Biden has not called for limiting the terms of any other federal offices.

Second, Biden notes that the United States is the only “major constitutional democracy” where members of its highest federal court are appointed indefinitely. Perhaps more developed version of this argument that explains how and why other nations came to limit the terms of their judiciary may be persuasive. But this argument, as presented, seems like an appeal to the masses, a common informal fallacy. Thus, we will move on from it.

Finally, in making his third argument, Biden endorses having justices serve 18-year terms, initiated on a rolling basis, such that the president nominates a new justice every 2 years. He does not lay out how we would transition to this system, but perhaps it is just a matter of logistics.

Biden notes that the appeal of this system is that no single president, or no single term, would have an outsized influence on the court’s composition. In recent decades, there has been little correlation between a presidency’s length and the number of justices appointed. Biden nominated one justice during his four-year term and presumably will not have the opportunity to nominate another before leaving office in January 2025. However, Donald Trump nominated three justices during a single term. For comparison, during each of their eight years as president, Barack Obama nominated three justices, George W. Bush four, and Bill Clinton two. Granted, two of Trump’s appointments were the result of political maneuvering in the Senate. But Biden’s proposed system limits the effects of both chance and political gamesmanship.

But why precisely is it desirable that each president gets to appoint the same or a similar number of justices? We should make this clear. Perhaps the most compelling defense is that the composition of the Court should reflect, or at least move closer to, the current will of the people. Currently, one third of the justices on the court were nominated by a president who lost the popular vote, served one term in office and then failed to secure re-election. Insofar as our institutions are at least indirectly democratic, then they ought to be more reflective of voter preference than the Supreme Court currently seems to be, at least on this argument. After all, democratic institutions derive their authority from the consent of the governed. So, it seems desirable that each president has similar shaping power over the Court.

This argument is more compelling than those offered previously. However, there is something troublesome about it. On an idealistic understanding, justices of the Supreme Court are, or ought to be, experienced, supremely knowledgeable about the law, and able to impartially apply that knowledge when arguing for their specific interpretation of the law. If this is how the Court ought to function, then it is not wholly clear why each president ought to appoint the name number of justices; unless some presidents are incompetent or nominating justices in bad faith, surely, they are selecting individuals they believe are experts in law capable of at least approximating impartiality in the highest court. So, ideally, there is a sense in which who appointed a justice should not matter. An impartial expert is, after all, an impartial expert.

Yet the public will often view justices very differently. Few outside the legal profession read majority opinions, concurrences, and dissents to assess the justices’ reasoning. We cannot blame the average voter for this – Supreme Court decisions are long, complex documents involving numerous arguments that invoke arcane prior law to analyze the current case. Nonetheless, the American public, and presidential candidates as well, often evaluate the quality of justices based on their rulings, and express a desire for justices that will reach specific conclusions. Very few seek, or grade, justices according to the quality of their deliberations.

So, if members of the public judge justices based on their verdicts, and the composition of the Court should reflect the people’s will, regular appointments seem desirable because they will result in rulings that voters will find agreeable. The Court should be made to reflect what voters want, not necessarily the soundest legal reasoning.

However, viewing the court and its justices in this light is ultimately ideological. Implementing term limits for the sake of ensuring each presidential term has similar power over the Court, in effect, labels the institution as a political one. What is sought is factional balance.

Perhaps the Court has been political throughout its entire history. But accepting this requires adopting a very different conception of the justices. To reuse Roberts’ metaphor, viewing the Court in this way means the justices are not just umpires, calling balls and strikes. Instead, the justices are like you and me. They are partisans rooting for a particular team. Or at least put in place because they tend to favor one team. They just happen to have a more detailed understanding of the rules. And they can use that understanding to argue that, based on games of rounders in the 18th century, the pitch which went right down the middle was actually a ball, not a strike.

Even the Court is currently political, we have reason to desire a high court that maintains political neutrality and focuses strictly on what law implies. Thus, despite the relative strength of this argument for term limits, perhaps we ought to hesitate to endorse it. We should consider how the Court ought to function before we embrace the idea that it is just another tool to achieve political goals.

Ultimately, though, we consider the practicality of implementing Supreme Court term limits. As noted earlier, Article III of the Constitution as establishes lifetime appointments for federal justices. Thus, implementing term limits requires an amendment to the Constitutions, lest it be struck down as unconstitutional (albeit, by justices with an interest in striking it down). Amending the Constitution requires a two-thirds majority in both the House and the Senate, or two-thirds of state legislatures calling for a Constitutional convention. After both chambers of Congress then agree on a joint resolution detailing the proposed amendment, three quarters of the states must then ratify it before it becomes an actual amendment. This process is cumbersome, time-consuming, and very unlikely to succeed quickly, especially given that some already claim Biden’s reforms are simply aimed at removing conservative justices. Thus, the proposals seem more like a wish list, to put it optimistically, or merely an attempt to make the public’s discontent with the Supreme Court a focal point of the news cycle and upcoming election, to put it cynically.

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Personalized Pricing: All the Rage

Who could have predicted that AI would return us to a land before price tags?

Last month, the Federal Trade Commission ordered eight companies (like Mastercard and JPMorgan Chase) to provide information regarding their “surveillance pricing” practices – that is, charging variable rates that shift according to the information gleaned from a client’s digital footprint. The FTC means to expose the “hidden ecosystem” of data brokers and middlemen who monitor user data, compile consumer profiles, and sell that information up the food chain. As more and more of those sneaky details and shady deals come to light, public animosity grows. Three-quarters of Americans object to online retailers charging different prices for the same product, and two-thirds mistakenly believe that the practice is illegal.

But we’ve been part of the personalized pricing experiment for a while now. (When’s the last time you paid sticker price on the car lot?) In 1996, Victoria’s Secret was already sending catalogs with cheaper prices to men. Amazon was first caught using the tactic in 2000 showing different people different prices for DVDs. Staples and Home Depot sell items and at different prices according to customers’ geographical location. Travel fare aggregator Orbitz directs Mac users to pricier lodgings. We also know that airline fares rise as you repeatedly search the same dates in your browser.

Further, mere dynamic pricing – rates that reflect the ebb and flow of supply and demand – has long been a staple of the workweek from early-bird specials to happy hour drinks. Hotel rooms cost more as the night progresses; airline fares rise as the date approaches. We seem to accept, daily, that some will pay more and some will pay less for the exact same good or service, so why the outrage now? Where does our sense of injustice come from?

So far, much of the chatter has focused on the digital privacy piece. We dislike the thought of someone sifting through our internet trash in order to paint our consumer profile. Worse yet, we feel violated by having our browser history used against us as a tool for coercion to buy that thing or book that trip. Despite regular warnings, we refuse to accept that we’ve consented to being spied on  – an online presence has become a necessity of life, and it often feels that there is no reasonable exit option. The cost for remaining in the digital space can’t be resigning ourselves to constant monitoring and manipulation. The answer is not abstention, it’s legislation.

These are legitimate gripes. But lost in this discussion is any articulation of the precise problem we have with price discrimination – that is, the selling of identical products to different people for different amounts. If businesses catered to customers’ unique price points without this kind of data scraping would we still have reason to object? Public opinion suggests we would.

Consider Wendy’s, the most recent recipient of consumers’ wrath. Customers revolted when it was suggested that a Baconator would cost more during a demand surge than in off-hours. Lydia DePillis, writing in The New York Times, identified Wendy’s failure as a mistake of marketing: they weren’t upcharging rush-hour customers, they were incentivizing the off-hour passerby. This isn’t a new and nefarious way to overcharge customers, it’s just a means of attracting reluctant holdouts. Everyone has their price. It all comes down to whether people see the lower price as a discount or the higher price as a tax. Everyone loves a bargain.

Ultimately, the trick in rolling out these new automated pricing models lies in accentuating the positive: Catch that break. Grab that deal. Let your self-denial give way to a willingness to pay. We’ll unite buyers and sellers, desire with satisfaction. Let the bidding commence. Welcome to the flea market of the future.

So perhaps public opinion is mistaken. Perhaps our envy and fear of missing out has simply invented something new to be mad at. Jean-Pierre Dubé, an economist at the University of Chicago, offers a telling comparison:

If I literally tell you, the price of a six-pack is $1.99, and then I tell someone else the price of a six-pack for them is $3.99, this would be deemed very unfair if there was too much transparency on it. But if instead I say, the price of a six-pack is $3.99 for everyone, and that’s fair. But then I give you a coupon for $2 off but I don’t give the coupon to the other person, somehow that’s not as unfair as if I just targeted a different price.

Groceries stores and airlines regularly avoid the Wendy’s reaction by masking price differences in memberships and coupons. But our sense of injustice fails to flare in these cases. Doesn’t this mean we’re being inconsistent? Credit scores are used daily to determine different financing rates (i.e., the higher or lower cost consumers will end up paying for an item). What makes personalized pricing so different?

Transparency. Consumers are routinely made aware of the perks membership offers. They are also aware of the (undemanding) steps required for them to transition from the out-group to the in-group. That kind of simplicity and stability is priceless. You can’t make a plan if you don’t know what dinner will cost you when you leave the house. But personalized pricing relies on obfuscation – businesses remove all reference points so that consumers can never find their footing. There is no “market” price.

Our post-pandemic world makes for a compelling test case. Today it’s impossible to anticipate what you’ll be expected to pay for everyday goods. Does anyone know what paper towels should cost? Whatever the buyer will bear.

Asymmetric Gain. Despite the promise of daily deals, the benefits of personalized pricing flow in one direction. As Lee Hepner, legal counsel for American Economics Liberties Project, explains, “personalized pricing is a transfer of wealth from consumer to the seller. Writ large, the goal and endgame is to maximize revenue.” By deducing each buyer’s specific pain point, sellers can extract the utmost value. They stand to reap all the gains that come with eliminating the gap between what consumers are willing to pay and what they actually pay. And there isn’t any social good created by charging different customers different prices (unlike the case of senior citizen discounts or letting kids eat free). This is pure profit maximization.

In practice, then, personalized pricing looks awfully similar to price-gouging – consideration of your unique circumstances (when you get paid, the date of your friend’s wedding, your expensive taste) generates inflated price tags. As customers’ need and ability to pay increase, so does the cost.

Consumer Impotence. Perhaps most damning, then, is what personalized pricing does to the already skewed power balance between customers and businesses. Rather than being price takers, sellers now become price setters. Armed with their marks’ financial details and search history, they can ensure every sale returns top dollar.

Buyers, meanwhile, find themselves in the dark, siloed from the experience of other customers, the price history of particular goods, and the unique deals of alternative vendors. But you can’t vote with your dollar if you don’t know your options. And without a shared experience of the marketplace, concerted action is all but impossible. Our ire may be warranted, but we may soon lack any ability to collectively express it. In the bazaar of tomorrow there is no signal, only noise.

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What’s Wrong with Hypocrisy?

One of the biggest stories in the run-up to the U.S. election in November has been Trump’s choice of running-mate, JD Vance. The choice surprised many, given that Vance has previously been very upfront about his dislike for Trump, calling him “morally reprehensible” and even going so far as to refer to him as “America’s Hitler.” While some Trump supporters have held up Vance as an exemplar of a reasonable person who can change their minds, others have called him a hypocrite.

While it’s common to hear politicians exchanging barbs by accusing each other of lying, cheating, and other nefarious acts, hypocrisy is a charge that seems to cut particularly deep. But what’s wrong with hypocrisy, anyway?

Let’s first think about what it means to be a hypocrite. One intuitive characterization is that the hypocrite doesn’t “practice what they preach,” in one way or another – think about the vegan who chastises others for eating animals while ordering a hamburger, or the priest who sermonizes about the sanctity of marriage but is then caught cheating. Cases like these involve a kind of mismatch, one between the hypocrite’s actions and their beliefs, judgments, or other attitudes.

But now we have something of a puzzle: what’s so bad about one’s actions failing to align with their attitudes? We could, of course, judge the hypocrite based on the actions they perform: we might chastise the hypocritical priest for their infidelity, or the vegan for supporting an industry that harms animals. But the moral status of the actions the hypocrite performs doesn’t tell us what’s wrong with hypocrisy itself.

As philosopher R. Jay Wallace notes, the puzzle deepens when we recognize that some amount of hypocrisy is a common, even necessary part of our everyday lives. After all, we often act in ways that are not reflective of our attitudes in order to navigate social and professional situations: you might complain in private that someone is a bore but hang out with them anyway, for example, or tell a young family member that they should never drink alcohol before grabbing a beer once they’ve gone to bed. There are plenty of relatively harmless cases where we tell others to do as we say but not as we do. So why do some cases of hypocrisy seem so much worse than others?

One aspect that seems to be common throughout many cases of hypocrisy is deception. By acting in a way that doesn’t reflect their stated beliefs, the hypocrite seems to be misleading you in some way: after all, if they really believed something then they would act like it. So maybe what’s wrong with hypocrisy is that by being a hypocrite one is also a liar.

But this also doesn’t seem to be the whole story, since there are plausible cases of hypocrisy that don’t involve attempts at deception. Wallace considers a politician who unrepentantly criticizes behaviors of others that they themselves have performed: for example, a politician might have a platform that is centered on fighting corruption, but is open about their own history of shady business dealings; or perhaps they march in a protest among environmental activists despite their public involvement with oil companies. There is not necessarily any deception occurring in these cases: the hypocrite isn’t trying to fool you into thinking they haven’t done the things they’ve done, they’re just saying one thing and doing another.

We can also see how cases of genuine hypocrisy can sometimes be difficult to distinguish from cases of changing one’s mind. Of course, if someone has legitimately updated their beliefs, it seems unfair to call them a hypocrite when their actions don’t align with views they no longer hold. Indeed, in response to charges that his support of Trump constitutes hypocrisy, JD Vance has maintained that he has simply changed his mind.

Whether this is a satisfying explanation is up for debate. Some have argued that since Vance’s past comments were so extreme it is difficult to believe that he now genuinely supports a person he explicitly despised. But even if we grant that he has changed his mind, we might still feel that something is not quite right with Vance’s actions: if you’ve spent so long being so openly critical of someone, then joining their campaign and telling others that you should vote for them might still feel hypocritical.

The explanation as to why this might be the case can help us locate why hypocrisy seems to be such a significant moral failing: in failing to practice what they preach, the hypocrite holds others to a standard that they themselves do not adhere to. As Wallace argues, the mismatch between a hypocrite’s attitudes and their actions shows that they consider their interests to be more important than those of others, and that they ascribe themselves a moral standing they are not willing to extend to those they may be critical of. Hypocrisy, then, may seem so morally reprehensible because the hypocrite takes themselves to be exempt from certain rules that they expect others to adhere to.

Philosophers Jessica Isserow and Colin Klein argue along similar lines: in their view, the hypocrite has “undermined any claim they have to act as a moral authority” by virtue of the mismatch between their judgments and their actions. This is perhaps why the most egregious cases of hypocrisy seem to be those that come from people who take themselves to be in a position to cast moral judgments on others – the meat-eating vegan, for example, or cheating priest. Or vice-presidential candidate.

We can see why the charge of hypocrisy is levied with such opprobrium towards politicians: in virtue of being public figures in privileged positions, it is a serious indictment of character to fail to live up to the standards of moral authority that they are ascribed.

Whether Vance is a hypocrite is up for debate. Regardless, given how many times he’s reportedly changed his mind over social and political issues, the accusations aren’t likely to go away any time soon.