Principle Should Trump Spite

trump-does-not-understand-the-job

There’s no doubt that Donald Trump is deeply ignorant about affairs of government. He lacks experience and, by his own admission, is not a reader. But the media may be doing the public a disservice by rubbing the President-elect’s face in it. Trump was apparently as shocked by his win as anyone. Now that the presidency rests upon his shoulders, he undoubtedly hopes to do a good job and has already hinted at his own sense of inadequacy. The more he is shamed for his ignorance and need for guidance, the less inclined he may be to ask for help. That would be bad for the country.

The press would do well to keep two things in mind:

(1) When Trump attempts to distance himself from some of his most ill-advised promises (e.g., jailing his opponent, banning all Muslims, erecting a deportation force to expel 11 million immigrants), repeatedly calling him out about it may make it harder for him to moderate his positions. It may give him less latitude with his most illiberal and reactionary supporters.

break-promises-at-your-peril

(2) When Trump does other sensible things, like reach across the aisle for help, the press would do well to speak of it in a respectful manner. This will give Trump room to ask for help without having to worry unduly about saving face.

Trump’s deficiencies are well-known. But we need the best Trump we can get. As much as will be possible for him, we need him to do a competent, scandal-free job. That is in the interests of all Americans.

Donald Trump 60 Minutes Overtime Interview

60-minutes-interview

We have a free press whose members are bound only by their editorial judgment. While they must also inevitably consider the dynamics of the news market and cater to consumer preferences, they would be doing a great public service by not hindering some of the more judicious and sensible impulses of the President-elect.

trump-supporters-wont-worry-about-details

Democrats may find this advice particularly galling after several years of fierce and acrimonious opposition to the Obama presidency among Republican leaders (but see also here). Nonetheless, our system requires leaders who are capable of acting on principle and, where necessary, suppressing their more natural instincts. Opposition grounded in the differing values of the two parties is to be expected. That is what it means to be the people’s representatives. Opposition grounded in vengefulness and spite is a failure of leadership. Leaders help us to channel our impulses in productive ways.

A.K.

Principle Over Idealization

I wrote recently about the need to avoid the “twin temptations of idealization and fear—naïve idealization of groups with whom we readily sympathize (e.g., immigrants, ethnic/religious minorities, police) and a sensationalized fear of those with whom we don’t (e.g., immigrants, ethnic/religious minorities, police).”

Constance Grady penned a piece in Vox a few days ago highlighting an example of the idealization of women. In that piece, Grady criticizes remarks by comedian Louis C.K., which can be seen in the video below:

Louis C.K. is supporting Hillary Clinton in next week’s presidential election, and it’s not just because she’s a woman. It’s because she’s a mom.

“A mother’s just got it,” C.K. told Conan O’Brien on Conan Tuesday night. “She feeds you and teaches you, she protects you, she takes care of shit.”

Mothers, C.K. says, make better presidents than fathers. We’ve had fathers as presidents for the past 240 years, but “a great father can give a kid 40 percent of his needs, tops. Tops out at 40 percent. Any mother, just a shitty mother, a not-even-trying mother? Two hundred percent.”

While Grady concedes that C.K. is well-intentioned, she finds his idealization of women ultimately misguided:

he’s playing into a very old and unpleasant narrative that’s become weirdly popular among liberal men this election cycle: the idea that we need women in government because they are intrinsically morally superior to men. Women should be represented in our government, this story goes, not because they are people, but because they are better than people: They are angelic; they are virtuous; they are pure.

Back in September, Quartz’s Annalisa Merelli interviewed Marxist philosopher Slavoj Žižek about his new book Refugees, Terror and other Troubles with the Neighbors. Merelli tells us that Žižek

looks at the current migrant and refugee crises in Europe, and identifies what he sees as its uncomfortable aspects: the contrasts between Western values and those of the thousands arriving in Europe from Africa and the Middle East; the threat of terrorism by migrants; and the inevitable tensions generated by the competition for jobs and resources.

“The left tries to ignore the problem—for example they try to underreport problems with immigrants,” Žižek told Quartz. “My book is simply a great, desperate call for not keeping silent about this.”

Sensationalized fear of immigrants or the recent flow of refugees is a real problem that must be confronted and corrected, but so too:

is a dangerous tendency to mythologize refugees as especially noble because of their suffering: “I don’t like this romantic false idea that suffering purifies you, that it makes you a noble person. It does not!” On the contrary, he says, “it makes you do anything to survive.”

This doesn’t mean Europe should be less committed to taking care of desperate people seeking shelter, he says—but Europeans should be more realistic about the kind of effort it takes to do so. “It’s easy to be humanitarian if your principle is that the others whom we are helping are good warm guys, friendly,” he says. “What if they are not? My point is that even in that case we should be helping them.”

How we advocate matters. As an African-American and a military veteran, I am often put off by attempts to advocate for African-Americans and military service members in ways that posit facile narratives about the superior virtue of these two groups. We are people. We deserve respect because we are people. We need not be especially great to be valued as people. Spinning grandiose narratives about people groups to elevate them is sloppy thinking, disingenuous as a form of public discourse, and patronizing to the group in question. We don’t need to idealize a disparaged or disadvantaged group in order to advocate for their equal treatment, political representation, or aid in a time of crisis.

It can also prove counterproductive. What happens when the narrative is belied by daily experience? When we find that African-Americans, military service members, women, immigrants, etc. are just as frail and error-prone as the rest of us? Specifically, in the case of refugees, what if we find that there are genuine differences, leading to social friction and discomfort? Do we then lose the conviction that they are to be valued as people? Do we turn our backs? The advocacy must be grounded in principle rather than unrealistic appraisals of the superior worth of the relevant group.

Likewise, C.K.’s advocacy on behalf of women in a culture where women have long been regarded as somehow less fit for leadership in general and public office in particular is laudable. However, the rights of women should be safeguarded because they are people. The contributions of women are valuable and speak for themselves. We need not substitute one narrow prejudice—that men are better—with its opposite. How hard is it to say women are equal–neither worse or better, but equal?

As Grady concluded: “We should not have a woman as president because women are pure and virtuous and angelic. We should have a woman as president because women are people who make up more than half of the US population, and because women deserve to see themselves represented in our representative government.” That is a compelling argument whether you like the particular woman on the ballot this year or not.

A.K.

Dogma, Idealization, and Fear

In a new and timely afterward to his 2001 book The Reckless Mind: Intellectuals in Politics, Mark Lilla offers a compelling contrast between ideology (that human propensity to build mental models about the world) and dogma (that human propensity to cultivate relatively simple beliefs which foreclose the necessity for further inquiry). This distinction may be helpful to contemplate as U.S. elections approach. Lilla informs us that “Ideologies inspire lies… a false pretense to speaking truth about the world…”

the-reckless-mind

Ideologies can be wrong, of course—and with disastrous historical consequences. But dogmas are different. They are immune to questioning and correction: “Dogmas inspire instead ignorance and indifference. They convince people that a single idea or principle is sacred and all they need to know in order to act in the world… [which] kills curiosity and intellectual ambition.”

Lilla argues that contemporary political discourse is beset by an understandable fatigue and cynicism about system-building, and we have perhaps lapsed into an anti-intellectual dogmatism.

An ideology gives people the illusion of understanding more than they do. Today, we seem to have renounced trying to understand as much as we can. We suffer from a new kind of hubris unlike that of the old master thinkers. Our hubris is to think that we no longer have to think hard or pay attention or look for connections… The end of the cold war destroyed whatever confidence we have in the great modern ideologies still remained in the West. But it also left us incurious and self-absorbed. We have abdicated… [W]e need reminding… that dealing with people outside our enchanted gardens requires more than toleration and concern for human rights. Reminding that we need a much deeper understanding of their histories and psychologies, free from idealization and fear, and attentive to the explosive political power of pride and resentment. (emphasis mine)

And, of course, we see much of the twin temptations of idealization and fear—naïve idealization of groups with whom we readily sympathize (e.g., immigrants, ethnic/religious minorities, police) and a sensationalized fear of those with whom we don’t (e.g., immigrants, ethnic/religious minorities, police). Regardless of the outcome of the upcoming elections, we must all strive for as much intellectual honesty as possible and avoid falling for either or both of these twin temptations.

Nearly they stood who fall.
Themselves, when they look back
see always in the track
One torturing spot where all
By a possible quick swerve
Of will yet unenslaved–
By the infinitesimal twitching of a nerve–
Might have been saved.

Nearly they fell who stand.
These with cold after-fear
Look back and note how near
They grazed the Siren’s land
Wondering to think that fate
By threads so spidery-fine
The choice of ways so small, the event so great
Should thus entwine.

Therefore I sometimes fear
Lest oldest fears prove true
Lest, when no bugle blew
My mort, when skies looked clear
I may have stepped one hair’s
Breadth past the hair-breadth bourn
Which, being once crossed forever unawares
Forbids return.

C.S. Lewis, Poems; Nearly They Stood (1933)

AKS

The Rational Voter: Voter Information & Vote Choice

vote-here

With the 2016 Presidential Election just 19 days away, this seems an appropriate juncture to pause and consider what it means to cast an informed and rational vote. The results from the earliest studies of public opinion in the 1940’s and 1950’s caused serious doubts about the American voter’s ability and willingness to acquire and process the information necessary to cast an informed vote. In 1957, Anthony Downs articulated a set of rationality assumptions by which vote choice could be evaluated. Since then, scholars have learned a great deal about how attitudes are acquired and expressed and how information is processed. Meanwhile, the project of evaluating vote choice has continued. Here, I briefly summarize some research in the Downsian stream concerning voters’ limitations and how they try to overcome them. Ultimately, I conclude that evaluating vote choice for rationality may be an unfruitful enterprise, but there have been fruitful developments besides.

Defining Rationality

Downs’ An Economic Theory of Democracy (1957) was an attempt to formulate a positive theory of democracy by applying the methodology of economics—specifically, methodological individualism and the rationality assumption—to actors in the political sphere. This undertaking required, in part, an account of the individual voter analogous to the individual consumer, a homo politicus (political man) corresponding to the stylized type homo economicus (economic man). Indeed, rational choice scholars have long contended that both private and public sector decision making are amenable to evaluation by one unified method.

downs

It is important to note what rationality is and is not. As Downs explains, rational action is action “reasonably directed toward the achievement of conscious goals” (Downs 1957, 4). A rational man is not “a man whose thought processes consist exclusively of logical propositions, or a man without prejudices, or a man whose emotions are inoperative” (Id. at 5). Rather, rationality implies simply “a man who moves toward his goals in a way which, to the best of his knowledge, uses the least possible input of scarce resources per unit of valued output” (Id.). So, a rational voter is one who votes in order to maximize his individual utility. His utility function (bundle of preferences) need not consist solely of selfish desires; it need only consist of those ends which are his own.

Measuring Rationality

Measuring rationality can be tricky because it is difficult to observe an agent’s ends directly. One way of dealing with this problem is to assume that “every man’s behavior is always rational because (1) it is aimed at some end and (2) its returns must have outweighed its costs in his eyes or he would not have undertaken it” (Id. at 6). Of course, this assumption is tautological: every man’s behavior becomes rational qua definitione. Downs avoids this pitfall by another key assumption: “If a theorist knows the ends of some decision-maker, he can predict what actions will be taken to achieve them” (Id. at 4, emphasis mine). If the decision-maker’s end is given, the theorist can then measure rationality by assessing the degree to which an agent’s means are reasonably suited to his ends. This deft evasion of the tautological pitfall is not without cost, however, which shall become clear in later discussion.

Given the structure of the American two-party system, the American voter typically confronts a dichotomous choice between competing providers of public goods—the Democratic and Republican parties—neither of which fully aligns with his preferences. If the differential between the two parties is significant, the Downsian voter casts his ballot for the party which most closely aligns with his preferences. If the differential between the two parties is not significant, the rational voter may choose to adopt a decision rule based on an assessment of prior performance or forego voting altogether.

voting-paper-ballots

It is also important to be clear about the import of the model under discussion here. For vote choice scholars in the Downsian stream, the extent to which the typical voter approximates the rational voter has important normative implications for the quality and viability of American democracy. In a political order guided by the will of the people, the stability and health of that order may well depend upon the ways in which the people make decisions.

By definition, homo politicus votes to achieve desired policy goals. In the voter choice literature, the relationship between the rational voter and the issue voter is well-articulated by Carmine and Stimson:

The common—indeed, universal—view has been that voting choices based on policy concerns are superior to decisions based on party loyalty or candidate image. Only the former represent clearly sophisticated behavior. Indeed, the policy-oriented vote is a defining characteristic of that mythical specimen, the classic democratic citizen (1980, 79).

Carmines and Stimson, however, challenged the notion that issue voting is necessarily a sign of political sophistication. They argued that not all issues are created equal, and issue voters could be sub-divided into two types—easy and hard—based upon the characteristics of their chosen issue. An easy issue is defined as “symbolic rather than technical”, focused on “policy ends rather than means”, and is “long on the political agenda” rather than newly arising (Id. at 80). An easy issue “makes possible a gut response elicited equally from well-informed and ill-informed, from interested and uninterested, from active and apathetic voters” (Id.).  While hard-issue voters do seem to resemble the Downsian type, employing a well-reasoned decision calculus across a range of issues, easy-issue voters do not significantly differ from their non-issue-oriented counterparts, the authors claim.

Carmines and Stimson support their argument about the bifurcated nature of issue voting with an examination of the 1972 presidential election, “widely described as issue-oriented, perhaps more than any other” (Id. at 81). This election is an apt study because “it is dominated by two issues, Vietnam and desegregation, each an exemplification of hard and easy issues, respectively” (Id.). Carmines and Stimson use survey interview responses to ascertain the policy preferences of voters. Then, having operationalized an issue voter as an individual for whom knowledge of the individual’s policy preference increases the predictability of the individual’s vote over and above that of his party identification, Carmines and Stimson use probit analysis to assess the probability of an individual voting for McGovern. By comparing the predicted vote to the actual vote, the authors establish a fourfold typology: the non-issue voter, the easy-issue voter, the hard-issue voter, and the constrained-issue voter. Only the first three types are necessary to consider here. The non-issue voter is one for whom no greater predictability can be obtained beyond party identification. The easy-issue and hard-issue voter are voters for whom a desegregation or Vietnam policy preference yielded greater predictability beyond party identification alone.

Finally, Carmine and Stimson compare the easy-issue and hard-issue voter and find that the two groups differ systematically and significantly in levels of formal education, factual political knowledge (measured by a short test of basic civics knowledge), and level of political activism. Across all three dimensions, each deemed closely related with voter sophistication, the hard-issue voter outperformed his easy-issue counterpart. Carmine and Stimson’s conclusion is that easy-issue voters are issue voters but that the issue which motivates their vote requires much less information. Thus, the policy-oriented nature of the vote aside, there is little to suggest that the easy-issue voter is distinguishable from the non-issue voter, they argue. The authors conclude that “The surge of easy-issue voting is not an encouraging phenomenon for those who would hinge the viability of democracy on the ability of citizens to choose rationally between alternative issue positions of parties and candidates. The surge in issue voting seems likely to occur on a large scale only when the choices are simplistic” (Id. at 88).

But does the hard versus easy-issue distinction hold up? The categorization seems arbitrary. The two examples Carmines and Stimson proffer, desegregation and Vietnam withdrawal, are defended almost entirely on intuitive grounds.

Although the policy conflicts involved in desegregation can be detailed in great complexity, we think it reasonable to assume that the typical voter sees in it a simple issue…there are virtually no technical or pragmatic issues in it…The Vietnam War was quite a different issue….War and peace are simple enough ends, but the candidates did not offer that choice. Instead, the electorate was presented with alternative plans (one of them “secret”) to end the war…While antiwar activists may have a seen a wide gulf separating the candidates’ positions, we believe most voters saw the issue in far more narrow terms, focusing mainly on speed and conditions of withdrawal (Id. at 80-81).

Ultimately, desegregation is easy not because voters might not perceive complex social consequences involved in the question of if, when, or how desegregation took place, but because Carmines and Stimson “think it reasonable to assume that the typical voter” did not see it that way. Likewise, the Vietnam conflict is hard not because voters might not harbor simple affective preferences about if, when, or how the conflict was concluded, but because Carmines and Stimson “believe most voters saw the issue” in a more nuanced light. This hardly seems an adequate defense for a categorical distinction on which the entire study hangs.

Leaving intact, arguendo, the hard versus easy-issue distinction, Carmines and Stimson may push the point too far. Recall that a rational voter is one whose vote is reasonably well-calculated to achieve his own policy ends. According to Downs, the agent’s ends are not the proper objects of evaluation but are to be taken as given. But Carmines and Stimson seem to smuggle back into the analysis at least some evaluation of the voters’ ends. Once homo politicus is put up on a pedestal, it is perhaps too tempting to resist ascribing to him the noblest ends as well as the most efficient means.

Not all scholars in the Downsian stream are as pessimistic about the lack of sophistication of some issue voters. Arthur Lupia, in “Shortcuts Versus Encyclopedias: Information and Voting Behavior in California Insurance Reform Election” (1994), presents evidence from exit interviews with California ballot initiative voters that low information voters tend to vote similarly to high information voters through the use of informational signals from information providers. In short, voters who, through lack of time or interest, admittedly knew very few details about the multiple and highly technical propositions on the ballot, were surprisingly likely to vote their putative interests through the use of informational shortcuts, such as knowing the source of support for a given proposition. Lupia’s work suggests that there may be hope for the unsophisticated issue voter after all.

Yet, these studies highlight an important weakness in the rational voter model: we can only evaluate the fit between means and end if we know an agent’s end. Carmines and Stimson rely on survey response data to determine voter preferences while Lupia makes his own assumptions about what is in a voter’s economic interest. In the Lupia study, voters were selecting between five different propositions, each supported by one of three information providers: a consumer group, an insurance company, and the Trial Lawyers Association. So-called sophisticated voters were those who, in an exit interview, demonstrated a general grasp of the content of the propositions, and unsophisticated voters were those who did not. All voters who cast their ballot in favor of the consumer group-backed proposition were deemed by Lupia to have been acting in their own economic self-interest. Voters who voted for one of the propositions not supported by the consumer group were deemed to be acting contrary to their own economic self-interest.

Each of the complex propositions, however, were designed to deal with two separate considerations—auto insurance rates and access to court for auto accident claims—in different ways. Each proposition constituted a basket of trade-offs designed to balance the desire for lower insurance rates with the desire to protect access to court for meritorious auto accident claims. Lupia assumes that a vote cast for any of the non-consumer group-backed propositions is an irrational vote because he presumes to know what balance the individual voter is attempting to strike. However, we cannot be sure whether a given vote was reasonably calculated to achieve the desired end unless we can reliably determine what the desired end is. Lupia’s mere assertion of a voter’s interest lacks epistemic warrant. Even if we could determine with reasonable certainty the voter’s aim, it still may not be clear what the most effective means are and reasonable persons may disagree. Indeed, policy experts are often uncertain about the expected benefits of a given policy, especially when important trade-offs are involved. For this very reason policy makers often pursue incremental reforms in order to isolate the cause of error and minimize its effects (See Lindblom’s “The Science of ‘Muddling Through’” (1959)). Therefore, assuming a voter’s end may avoid the tautological pitfall yet still prove untenable.

Public Opinion Surveys: What Are They Good For?

Evaluating vote choice by assuming a voter’s end is problematic, but so is reliance on survey data as Carmines and Stimson do. John Zaller, in The Nature and Origins of Mass Opinion (1992) demonstrates both theoretically and empirically what a weak reed public opinion survey data can be and provides a more complex way of understanding the way voters acquire and process information. After a broad literature review demonstrating the general ignorance of members of the American public on political matters and the inexplicable variability of survey responses, Zaller lays out four axioms which form the foundation of his theory and from which he draws several testable deductions. Testing these deductions occupy the latter half of the book. I will briefly discuss each of these axioms and Zaller’s most significant deduction before offering concluding thoughts.

Zaller

Axiom 1, the Reception Axiom, holds that “the greater a person’s cognitive engagement with an issue, the more likely he or she is to be exposed to and comprehend—in a word, to receive—political messages concerning that issue” (Zaller 1992, 42). Zaller chooses cognitive engagement over political interest because the former focuses on individual acquisition of political information, while the latter less helpfully focuses on affective involvement. “For example,” Zaller adds, “people who score higher on tests of political knowledge are substantially more stable in their attitude reports than people who score low in political awareness; however, people who describe themselves as highly interested in politics…are not significantly more stable than persons who express little political interest” (Id. at 43). Thus, Zaller’s measure of cognitive engagement consists of a neutral test of political knowledge involving questions on public affairs, which he finds to be more reliable gauge of an individual’s level of attentiveness to politics.

Axiom 2, the Resistance Axiom, holds that “people tend to resist arguments that are inconsistent with their political predispositions, but they do so only to the extent that they possess the contextual information necessary to perceive a relationship between the message and their predispositions” (Id. at 44). In other words, individuals are resistant to arguments from “the other side” of the political spectrum but only to the extent that they are aware that those arguments are from the other side. Here, Zaller relies on psychological literature indicating that individuals more readily embrace ideas from trusted sources and are highly skeptical of ideas from rival sources.

Axiom 3, the Accessibility Axiom, holds that “the more recently a consideration has been called to mind or thought about, the less time it takes to receive that consideration or related considerations from memory and bring them to the top of the head for use” (Id. at 48). This insight, which Zaller draws from cognitive psychology, means that individuals are not super computers capable of holding all the information they have previously consumed readily available at once for application to a given question; rather, they most easily recall ideas which they have thought about most recently.

Axiom 4, the Response Axiom, is closely related to Axiom 3. It holds that “individuals answer survey questions by averaging across the considerations that are immediately salient or accessible to them” (Id. at 49). Simply, individuals respond to survey questions by sampling only from those ideas that most readily spring to mind, and their opinion statement constitutes a mere composite of perhaps diverse and even conflicting ideas.

Zaller’s most theoretically significant deduction, the Ambivalence Deduction, follows most directly from Axiom 2 and combines with Axiom 4 in interesting ways. If, as Axiom 2 states, individuals can adequately resist arguments inconsistent with their attitudes only to the extent that those individuals are cued in to the directional implications of those arguments, and members of the mass public are as generally ignorant of politics as the literature suggests, it follows that members of the mass public might unwittingly hold internally inconsistent political attitudes. Thus, relatively politically inattentive people can be expected to demonstrate a high degree of ambivalence.

Understanding the variability in survey responses then requires only the combination of the Ambivalence Deduction and Axiom 4, the Response Axiom. If most members of the mass public are walking repositories of inconsistent political ideas, and answer survey queries by a haphazard sampling of those ideas which are most cognitively available, survey responses may tell us more about the most recent news coverage to which a given respondent has been exposed or the framing of the survey question than the respondents’ fixed true attitudes. Zaller recounts a host of survey results which demonstrate this point rather neatly. Indeed, Zaller asserts, “individuals do not typically possess ‘true attitudes’ on issues, as conventional theorizing assumes, but a series of partially independent and often inconsistent ones…[T]rue attitude seems a grievous simplification” (Id. at 93).

Most of the heavy lifting in Zaller’s theory is done by the Ambivalence Deduction and the Response Axiom working in tandem. One example of this is found in chapter six, “The mainstream and polarization effects.” This chapter opens with an examination of public reaction to Nixon’s 1971 speech announcing wage and price controls and the reversal of support for the war in Vietnam in the 1960’s. Zaller’s aim is to account for the effects of elite communications on mass attitudes by examining a case “in which elites achieve a consensus or near consensus on a value or policy” (Nixonian controls)  and another “in which elites disagree along partisan or ideological lines” (Vietnam in the late 1960’s) (Id. at 97).

In the case of Nixonian wage and price controls, public support grew after Nixon’s speech on the subject and remained high among members of the public as conservative and liberal elites embraced the policy. Likewise, public support for the war in Vietnam was high during the early 1960’s while elites provided unified support. Zaller calls this the mainstream effect—when members of the mass public receive the same cues from partisan elites, mass liberals and conservatives can be expected to be very close in their attitudes.  But, by the late 1960’s, elite support had divided, with conservative elites maintaining support for the war and liberal elites turning in opposition. Zaller notes that, when elites divided over the war, “increases in awareness [were] associated with greater polarization of the attitudes of mass liberals and conservatives” (Id. at 102). Simply, the more cognitively engaged members of the mass public received more cues from their respective elites and were more resistant to cues from ‘the other side.’ This is the polarization effect and shows the power of Zaller’s model.

Though Zaller presents a wide range of empirical support for the mainstream and polarization effects, the implied causation—from elite preference formation, to elite cues, to mass preference formation—does not seem fully substantiated. Could there be some factor driving elite preference change and mass preference change? For example, educated mass liberals began to change their mind about the war around the same time educated elite liberals began to change their mind about the war. Elite influence is one plausible explanation, but could it not be that individuals who are similarly disposed, educated, and socialized will tend to react similarly to political events? Moreover, once one considers that similarly educated elite liberals react similarly to educated mass liberals, the partition erected by terms like “elite” and “mass” begins to appear rather thin.

Nevertheless, several important implications follow from Zaller’s model. One implication is that polarization may be here to stay. Recall from the Resistance Axiom that “people tend to resist arguments that are inconsistent with their political predispositions, but they do so only to the extent that they possess the contextual information necessary to perceive a relationship between the message and their predispositions” (Id. at 44). Members of the mass public are predicted to be ambivalent to the extent that they are inundated with messages from both sides of the American ideological divide and are unable to discern the source of each message. Thus, an inattentive liberal (or conservative) member of the mass public is likely to be receptive to and sympathetic with rival arguments confronted in the public sphere. But some social scientists warn that Americans are becoming more atomized in their lifestyles (Putnam 1995) while the proliferation of niche media outlets can effectively insulate the consumer of public information from rival views.

Most importantly, Zaller’s work demonstrates that public opinion survey data is unreliable. If survey data is unreliable, then it is not available to save the Downsian rational voter analysis from the tautological pitfall and the blind assignment of preferences to voters by researchers. Zaller’s work shifts attention away from evaluating voters for rationality and focuses more fruitfully on the question of how public opinion is influenced in the context of public life. In the Zaller research program, voters who are limited in time and cognitive capacity respond to the complexities of political life by acquiring ideology which then permits the selective acquisition, processing, and application of information gleaned from public discourse. This process is messier than the pristine Downsian model, but also appears to capture more faithfully the realities of American political life.

Institutional Adaptation

[I]nstitutions create elements of order and predictability. They fashion, enable and constrain political actors as they act within a logic of appropriate action. Institutions are carriers of identities and roles and they are markers of a polity’s character, history and visions. They provide bonds that tie citizens together in spite of the many things that divide them…

Most contemporary theories assume that the mix of rules, routines, norms, and identities that describe institutions change over time in response to historical experience. The changes are neither instantaneous nor reliably desirable in the sense of moving the system closer to some optimum. As a result, assumptions of historical efficiency cannot be sustained.  By “historical efficiency” we mean the idea that institutions become in some sense “better” adapted to their environments and quickly achieve a uniquely optimum solution to the problem of surviving and thriving.  The matching of institutions, behaviors and contexts takes time and have multiple, path-dependent equilibria. Adaptation is less automatic, less continuous, and less precise than assumed by standard equilibrium models and it does not necessarily improve efficiency and survival.

March & Olsen, “Elaborating the ‘New Institutionalism’” 2005

The Institutional Development of the Third Branch

US Federal Courts Map

The U.S. federal court system has evolved over time, often in quite haphazard fashion. Prior to the adoption of the federal Constitution of 1787, the United States operated as a confederal political order under the Articles of Confederation. Under this scheme, each of the former thirteen colonies jealously guarded their newly asserted prerogatives as sovereign states even as they banded together in “a firm league of friendship.” Policy among the several states was the product of consensus among the state governments through their delegations in Congress. All courts in the United States were courts of the individual states, exercising jurisdiction over state law matters and, problematically, over interstate matters as well.[1] The constitution of 1787, drafted for the purpose of achieving a more complete (or “perfect”) union, subordinated the states to a set of truly national institutions. Article I of the Constitution instituted a new national congress with expanded national law making powers and a more direct electoral link to the citizenry. Article II instituted the office of the presidency, a chief executive elected on a national basis. Article III included a new federal court system with a Supreme Court at its summit and any “such inferior Courts as the Congress may from time to time ordain and establish.”[2] Members of the Constitutional Convention discussed the specific contours of the federal court system but little and left the details to be determined by Congress.[3] One of the first major enactments of the first sitting Congress was the Judiciary Act of 1789, which created the basic framework of the federal judiciary.

The framework established by the Judiciary Act of 1789 is still somewhat recognizable today. The Act established the federal judiciary in three parts (See fig. 1):

Figure 1: Early Federal Court Structure

Federal Courts 1789-1891

The Supreme Court, consisting of a six-member panel, was to exercise appellate jurisdiction over circuit courts in civil law cases in which the amount in controversy exceeded $2000, as well as over “state supreme court decisions that invalidated federal statutes or treaties or that declared state statutes constitutional in the face of a claim to the contrary” (Wheeler & Harrison 2005, 4).[4] The two lower federal courts—district and circuit—were organized as follows. The act established 13 district courts to serve as federal trial courts, one for each of the eleven states that had ratified the Constitution, plus one each for Maine and Kentucky, which were still subsumed within Massachusetts and Virginia respectively. Each district, consisting of one judge, “served mainly as courts for admiralty cases, for forfeitures and penalties, for petty federal crimes, and for minor U.S. plaintiff cases” (Id.). The act also established three regional circuits—Eastern, Middle, and Southern—in which each of the district courts were contained (See fig. 3). Circuit courts were to meet only twice a year and were not assigned dedicated judgeships. Rather, when it met, a circuit court was to sit as a three-member panel consisting of two Supreme Court justices and the district judge of the district wherein the panel met. This meant, of course, that the justices would have to travel semiannually to an assigned circuit to perform circuit duties—a practice thought necessary by members of Congress to keep the judiciary in touch with the people and to avoid the expense of additional judicial salaries, but which was quite onerous to the justices themselves (See Marcus 1992, 16-22.).

Origins of the Federal Judiciary

The circuit courts were primarily trial courts with complementary jurisdiction to that of district courts, but also served as courts of appeals “for some of the larger civil and admiralty cases in the district courts” (Wheeler & Harrison 2005, 4). Thus, although Article III of the Constitution provided for federal court jurisdiction which could “extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority,” Congress, in the first Judiciary Act, circumscribed federal court jurisdiction in such a way that most federal questions could only be filed in state courts—a restriction meant to allay concerns that the federal courts would displace state courts.[5]

Figure 2: Federal Court Map, 1789[6]

Court Map 1789

Three things are important to note about the establishment of the federal judiciary that are crucial to understanding its subsequent institutional development. First, the convention delegates’ lack of “craftsmanship” (McDonald 1985, 253) with respect to the structure of the federal courts essentially left the structural and functional contours of the court unspecified. Second, the dearth of constitutional specification ensured that the courts would be dependent on the other branches for further development which undermined the status of the courts as a true third branch. The institutional development of the courts would follow a path dictated by other political actors in pursuit of various goals. Congress’ first act of institutional development demonstrates the point poignantly. Though initially conceived as a nationalizing institution, the first statutory enactment pertaining to the federal courts greatly circumscribed its jurisdiction, leaving most matters of federal law to be settled by state courts.[7] The reason lay partly in concerns about the expense of maintaining a fully vested system of federal courts over an extended geographic area—burdensome to a young nation still debt-laden and reeling from war—and partly to allay the suspicion of the states toward centralized power, as these political entities were still zealous for their hard-won independence (See Marcus 1992, 13-30.). As is often the case in institutional development, this early retreat toward localism exerts a powerful influence on the subsequent development of the courts long after the causes which gave rise to it pass into history.

Novus Ordo Seclorum

Third, the establishment of a system of national courts was an unprecedented foray into institutional design. The complexities of the task must have seemed daunting to convention delegates who had already set themselves the task of devising “a novus ordo seclorum” or “a new form of government unprecedented under the sun” (McDonald 1985, 287, 276, respectively). In so doing, the delegates “had rendered all previous political vocabulary obsolete as it pertained to the government of the United States” (Id. at 287). On the other hand, kicking the institution-building can down the road to the first Congress may have helped but little. Justin Crowe tells us that:

Article III gives Congress, an institution charged with a fair number of functions, the primary authority to build the federal judiciary but offers little guidance about which tools to use or what type of structure to erect. Building a judiciary of this sort—a complex one with multiple tiers of judges, varying grants of jurisdiction, and both trial and appellate functions—was an unprecedented task, one that few members of Congress understood intuitively (Crowe 2012, 81).

Therefore, the federal courts, as a complex system, was neither destined to take any distinct form nor was the path taken prescribed by some grand scheme. Rather, the history of the courts has been one of ongoing piecemeal reform in the crucible of American politics.

Building the Judiciary

The federal courts would eventually develop into a full-fledged third branch of American government, but would do so through the strategic action of political principals in pursuit of various goals. “In other words,” says Crowe, “politicians have engaged in institution building consciously and tactically, empowering the judiciary because they saw it in their—and often in their constituents’—interests to do so” (Id. at 274). These interests can be summarized under three broad headings: political goals (e.g., partisan entrenchment), policy goals (e.g., economic expansion, protection of minority rights), and performance goals (e.g., expanding court capacity to handle burgeoning caseloads) (See Crowe 2012, Ch. 8).

Most of the statutory changes to the federal court system over the next century involved an expansion in the number of circuits to keep pace with U.S. westward expansion, population growth, and the admission of new states to the Union. By the late 1860’s, there were nine circuits, each with dedicated judgeships, and nine justices on the Supreme Court, each of whom were only required to perform circuit duties biennially. The early 19th century expansion, though driven by the performance-oriented goal of growing the courts to keep pace with the nation it served, the particular path that growth would take was unwittingly set by the Judiciary Act of 1807. Crowe explains:

As the first instance in which a new circuit and a new justice were added simultaneously, the Judiciary Act of 1807 not only integrated the Western states into the circuit system and expanded the Supreme Court beyond its original 1789 size but also established a model for future institution building. This model had two crucial features. The first was the connection between the circuit system and the Supreme Court—or, more precisely, between the number of circuits and the number of Supreme Court justices. Such a connection was not unprecedented, but neither was it clearly established by constitutional text or political practice…The second feature, prompted by the explicit statement [in the Act] that the newly created vacancy on the court be filled by an individual that would reside in the seventh circuit, required the president to heed concerns about geographical representation when choosing new justices (Id. at 89-90).

These two connections not only served to reinforce regionalism in the national courts, but also tethered a performance-oriented goal such as court capacity to politically-oriented goals such as partisan entrenchment and state aggrandizement. For the six decades following the Judiciary Act of 1807, expansion of the federal courts to meet the demands of a growing nation would be constrained by political parties seeking to ensure that their president would be the one to appoint the new seat on the Supreme Court (as it expanded in line with additional circuits) and by states viewing circuit organizational boundaries as either furthering or diminishing their prestige as states and region (through representation on the Supreme Court).

During the Civil War Reconstruction period, court building was largely policy-oriented (See Crowe 2012, 132-170.). Congress enacted the Jurisdiction and Removal Act of 1875 which expanded circuit court jurisdiction to include “any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court…and arising under the Constitution or laws of the United States” (federal question jurisdiction), “or in which there shall be a controversy between citizens of different States” (diversity jurisdiction), provided that the amount in controversy exceeded $500 (Judiciary Act of 1875). This act expanded federal court jurisdiction to the full extent permitted by Article III—with explosive potential for federal court workload—but still permitted state courts to exercise concurrent jurisdiction, giving litigants a choice of venue in many instances. Wheeler and Harrison comment on the dual goals reflected in this shift:

It was adopted two days following the 1875 Civil Rights Act, and, as one observer has said, the two statutes together “may be seen as an ultimate expression of Republican reconstruction policies. One recognized a national obligation to confer and guarantee first-class citizenship to the freedman. The other marked an expression of the party’s nationalizing impulse and complementary concern for the national market” (Wheeler & Harrison 2005, 12).

Although hindered at the framing by anti-federalist fears of an over-bearing federal court superstructure, the eventual expansion of federal court jurisdiction appears to have been motivated in part by concerns about fair and impartial justice to litigants and the uniformity in federal law required to sustain a growing national market. On the latter score, one legislator justified the push for a strong national court system by insisting that “Capital…will not be risked in the perils of sectional bitterness, narrow prejudices, or local indifference to integrity and honor” (Id. at 18).

The first major structural change to the federal courts since the Judiciary Act of 1789 came in the form of the Circuit Court of Appeals Act of 1891. Congress, in response to ballooning federal caseloads and a multi-year backlog at the Supreme Court, created a new Court of Appeals within each regional circuit which could hear appeals directly from the district courts. The old circuit courts were stripped of the little appellate jurisdiction they had and, until officially abolished in 1911, served simply as separate federal trial courts.[8] The Act authorized a total of two judgeships for the appellate court of each circuit. Each court of appeals was to sit as a three-member panel consisting of the two circuit judges with a district judge from the circuit or with a Supreme Court justice. As Wheeler and Harrison explain,

The Act provided a right of direct Supreme Court review from the district courts in some categories of cases and from the circuit courts of appeals in others. It routed all other district court cases—notably criminal, diversity, admiralty, and revenue and patent cases—to the courts of appeals for final disposition. The appellate court could certify questions to the Supreme Court, or the Supreme Court could grant review by certiorari. The Act’s effect on the Supreme Court was immediate—filings decreased from 623 in 1890 to 379 in 1891 and 275 in 1892 (Id. at 18).

Thus, some cases were appealed directly from the two trial courts to the Supreme Court while others followed the now-familiar route from trial court to intermediate court of appeals to the Supreme Court.

Figure 3: Federal Courts Structure, 1891:

Federal Courts 1891-1911

The statutory changes to the federal judiciary over the twentieth century basically accomplished three things: they limited mandatory review by the Supreme Court, created specialty courts, and added additional circuits and judgeships to the federal system. These changes resulted from the need to cope with burgeoning caseloads from an expanding economy and growing population extending over a vast geographic area. Figure 4 depicts the growth in case volume in the circuits courts of appeals since their inception.

Figure 4: Caseload Growth Over Time

Federal Caseload Chart 1892-2012

Earlier regionalization persisted, however. Although the full scope of federal jurisdiction permitted under the Constitution was now available to the courts, and Supreme Court justices no longer presided over circuits,[9] the expectation that the circuits would each embody a distinct legal culture and maintain independence from sister circuits remained. Indeed, “the current structure treats the circuits as autonomous units within the intermediate tier. Moreover, the courts of appeals have developed doctrines such as the ‘law of the circuit’ that emphasize their regional focus” (Dragich 1996, 36-37). These appellate courts often render conflicting interpretations of federal law, which means different national law in effect in different regions of the country. While the Supreme Court prioritizes review of these intercircuit conflicts, it lacks the capacity and inclination to hear them all. Many scholars now believe the federal court system is poorly organized for the cultivation of a coherent and uniform body of national law (Carrington & Orchard 2010).

Figure 5: Federal Courts Structure, 1911:

Federal Courts 1911-1952

 

AKS

[1] But, as Crowe 2012, 25-26 notes: “Congress did establish one standing court—the Court of Appeals in Prize Cases, regarded by some as the first ‘federal’ court in America,” which existed for six years and whose rulings “some states simply refused to obey.”

[2] Const. Art. III

[3] McDonald 1985, 253: “The delegates devoted less time to forming the judiciary—and less attention to careful craftsmanship—than they have expended on the legislative and executive branches. In part the judiciary received minimal consideration because it was regarded as the least powerful and least active branch of government.” See also Crowe 2012, 26, 30: “Beyond a general consensus that the new republic would have a federal court system…there was not sustained deliberation about the structure of that system…In essence, the First Congress did in the Judiciary Act precisely what the Convention had declined to do in the Constitution—namely, invent a federal judicial system.”

[4] Not many cases in this period would have met the $2000 jurisdictional threshold.

[5] This restriction on federal jurisdiction was also meant to contain costs in the new federal courts. Marcus 1992, 16-22. Crowe (2012, 42) informs us that “much of the federal jurisdiction granted was, except in admiralty and maritime cases, concurrent with state jurisdiction…”

[6] Wheeler & Harrison 2005, 5.

[7] “Although a few observers believed that the Constitution itself vested federal jurisdiction and that Congress was powerless to alter it, most of those in Congress acted on the assumption that the Constitution merely set the outer limits of their power.” Marcus 1992, 16.

[8] Indeed, “the continued existence of the original circuit courts meant that the federal judiciary included ‘two courts of substantially concurrent jurisdiction, with no little uncertainty and confusion in determining the few instances in which their jurisdiction was not concurrent’” (Crowe 2012, 189) Ironically, “the work of these two overlapping trial courts—each with its own clerks and own records—was increasingly performed by one set of judges” (id.).

[9] Each Supreme Court Justice is still assigned as “circuit justice” over one or more circuits. Since 1911, when circuit riding was no longer required, circuit justice duties have primarily involved receiving and ruling on emergency motions from the circuit and ruling on applications for extensions of filing deadlines. See 28 USC 42 and Rule 22 of the Supreme Court’s Rules. In addition, 28 USC 43 stipulates that circuit justices “shall be competent to sit as judges of the court,” so technically circuit justices can exercise all powers of a circuit judge, though they rarely do in practice.

Politics and Righteous Fury

Any person attempting to mobilize a group to achieve a collective goal soon finds a simple logic at work: People can be hard to motivate, especially where the individual costs are certain and the benefits are remote and speculative. How can a politician help to overcome this logic? A healthy dose of righteous zeal goes a long way. This, of course, is easier to cultivate where the problem is dire but simple, and the cause is clearly traceable to a recognizable enemy.

Bloomberg View columnist Megan McArdle gets this. In a recent article she responds to Warren Buffet’s claim that Senator Elizabeth Warren’s anger makes her less effective. McArdle disagrees:

Warren has a pretty clear agenda for American society, and she thinks that the best way to get that agenda enacted is to stir anger in the hearts of voters who see a lot of things gone wrong and figure that, well, someone must have done it to them, probably those folks over there who don’t seem to be suffering as much as the rest of us. I think her agenda is oversimplified paternalism combined with a touching naivete about the effects of regulation, but on tactics, I think she’s probably mostly right….

We want simple narratives, ones with clear villains and heroes and an obvious moral. We want clear solutions that can be described in no more than one minute, just right for a sound bite on the evening news. We want someone to hate, along with the reassurance that once those people are removed or controlled, all will be right with the world. And we happily pull the lever in the ballot box for the people who will deliver these things….

Which is not to say that Warren’s anger is strategic; I think she sincerely believes that she’s fighting some fearsome dragons. I think politics selects for people who see the world in black and white, then rage at all the darkness. I wish that weren’t the case, of course. But if you want to change it, don’t look to the politicians — look to the voters who elect them.

The article is short and worth reading in its entirety here. See also my discussion of one scholar’s seminal work on the nature and origins of mass opinion.

 

A.K.