David R. Henderson  

Taking Lousy Government for Granted

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Their Supreme Gall

There are two ways to take lousy government for granted: (1) to understand clearly how lousy, petty, vicious, self-serving, and narcissistic most government is, and (2) to understand implicitly how lousy, petty, vicious, self-serving, and narcissistic most government is but get so used to it that you hardly notice. I'm in category (1). There are a lot of people in category (2) whom I'm trying to get to category (1).

A case in point is the coming Supreme Court decision on the Affordable Care Act. Whatever you think of that law and whatever you think of the constitutionality of the law, there is one thing that virtually everyone can agree on: whichever way the Supreme Court decides, its decision will have momentous consequences.

If the court decides that the ACA is constitutional, then state governments will need to get busy setting up "health exchanges." If, on the other extreme, the court decides the whole thing is unconstitutional, the state governments and health insurance companies will need to change their planning. If the court decides that the individual mandate alone is unconstitutional, then various players will have to act differently because of that.

So any decision the Supreme Court makes will have momentous consequences. Decisions about the allocations of tens of billions and probably hundreds of billions of dollars will be affected.

The decision is likely to come out next week. Yet we've been told that the actual decision was made months ago and it's probably the case that all the opinions were written weeks ago. So why can't they tell us? Why make us wait?

Imagine that Apple found a bug in its iPad and came up with a fix. How would you feel if you had just bought an iPad and found out that Apple was going to wait 2 months before releasing the fix? My guess is that you would be angry. Yet I don't see people getting angry at the Supreme Court. Why? Check out reason (2) above. We are so used to government officials being narcissistic and self-serving that we just accept that they take their sweet time telling us. The fact that waiting until the end of June instead of finding out in, say, mid-May, will cause the misallocation of billions of dollars? No biggie.

Comments and Sharing

COMMENTS (11 to date)

I wonder if a judge ever changes his or her mind in the interim before the announcement. If so the interim may give the judges time to feel more confident in what they eventually announce. But the delay costs other parties a lot, I agree.

Fergus O'Rourke writes:

What is the source of the "we've been told" assertion ? How reliable is it as information ?

Observers of appellate hearings often believe that the court has made up its mind before the hearing is over.

They are not always correct.

Jeff writes:

Maybe, just maybe, when they make an important decision, they triple check to make sure all the i's are dotted and t's crossed. They shore up their arguments, check and re-check the case law, think through the logic, think through their opponents logic, and try to craft the best darn opinion they can. Just because they know how they will decide right away doesn't imply they know the best way to express it right away. And how they express it will have long lasting implications just as much as the overarching yea/nay of constitutionality. I guess I'm just not quite at your level of cynicality yet!

Tom West writes:

I have to say that while it makes no sense from a logic point of view, from a human reaction point of view, it's imperative to already have the full complete justification for your decision when the decision becomes public.

Even Supreme Court decisions aren't immune from being tried in the court of public opinion. The last thing you want to do is to be silent while that trial is going on, only releasing your justification long after the public has made up its mind and is no longer amenable to new facts.

Just ask any PR firm - you need to be out there is absolutely everything lined up when the news first hits.

Ken B writes:

I think Tom West has it right. Here's a thought experiment. It is 1954. Justice Warren has just corralled the 5th vote to overturn school segregation. Should he call AP, or should he continue working to get more votes, and write a solid opinion?

I think David has a point just not the obvious one. I think it's clear the court needs to get its thought (and words) clear before the decision. The problem is that a single decision can matter so much in the first place. And that is entirely a matter of lousy, petty, vicious, self-serving, and narcissistic government.

mike davis writes:

While I am happy to join you in Category 1, I wonder if the Supremes delaying their decision is a good example of the kind of self-serving narcissism that characterizes so much “public service”. From the day the case was accepted we knew the decision would come down sometime this week. Having a known date for momentous decisions has at least three helpful characteristics.

First, it eliminates the possibility that the court would manipulate, or be accused of manipulating, the announcement date for political purposes. One can imagine, for example, that an announcement on a Monday before an important Tuesday primary could influence voter turnout. The courts credibility is important to them (the narcissism at work) and if they institutionalize restraining mechanisms, like fixing the announcement date for important decisions, they deserve to be taken more seriously.

Second, delaying the announcement gives people a chance to plan both the timing and direction of their reaction to whatever will happen. In this regard (and no snarky comments allowed) legislators are especially important people. If David or any else wants to disagree, I’m prepared to change my mind but I’m happy to have Congress wait until after November to deal with health care. Knowing that we wouldn’t get a decision until now makes it easier for Congress not to act (although maybe they would have been paralyzed anyhow.)

Third, delaying the decision encourages a broader conversation about both the constitutional issues and the policy. Since the law was passed we’ve gotten lots of good commentary on the Commerce Clause and on health care. After this week, all we’re going to hear is analysis of what the Court said and how Congress will or should react. The Supreme Court was inevitably going to have the loudest voice in the Constitutional debate but I’m glad they gave others a chance before they started screaming.

Larry writes:

It's not narcissism, it' marketing. By waiting until the last day, they get more attention for all the lesser cases they're ruling on this week. Otherwise, They would get much less attention. Smart.

GIVCO writes:

They took a vote, assigned the opinion, it was drafted and circulated, comments made, perhaps a majority justice backed out & authored a consensus, maybe a dissenter decided to separately dissent, another majority voter agreed to Parts I, II, and IV but writes separately on III, etc.

That goes on until they officially sign off on all of the opinions this week.

Fralupo writes:

The example of an iPad bug doesn't work because the provisions in Obamacare at issue (the individual mandate and related regulations) don't take effect until 2014 or so. This is more like Apple waiting 2 months to release a patch to the iOS they plan on releasing in their next product.

Do you think its a sign of inefficient government that the President of the United States is elected in November but inaugurated in January?

David R. Henderson writes:

Many good comments here, especially that of Fralupo. I’m making a good point but I think I did so with at best a mediocre example.

Jim Glass writes:

It seems very much like Roberts switched sides at the last moment -- with not even enough time left to edit the opinions to make the former minority opinion read like a majority, and vice versa.

The Court does *not* decide a case after argument, then delay telling everyone until months later.

As GIVCO noted above, they take a preliminary vote then start drafting opinions. Because every phrase in an opinion potentially could prove to be important, a great deal of work goes into squaring every statement with past precedents, etc.

At the same time, in a close case such a 5-4er, the majority opinion must also be written with a lot of legal negotiation and personal politicking among the Justices to keep everyone on board -- if just one of the five doesn't like it he/she can flip to the other side and reverse the entire holding.

Doing all this can take a lot of effort and time -- and sometimes they don't succeed. It's not uncommon for "decision dates" to be postponed because months after the preliminary vote was taken the opinions still aren't finalized. Sometimes five Justices never agree and a fractured holding is delivered. Sometimes the majority can't hold together and someone flips at the deadline -- of which today's case may go down in the books as an historic example.

And remember, they are doing all this with scores of cases at a time, simultaneously.

In short, IMHO the Supreme Court is a really weak example to pick to illustrate government inefficiency.

There are so many that are so much better. For instance...
"I'm from the government and I'm here to help you make your flight."

The TSA’s bungling reached a new low yesterday when a JFK Airport terminal had to be evacuated and hundreds of passengers marched back through security screening all because one dimwitted agent failed to realize his metal detector had been unplugged, sources told The Post.

The stunning error led to hours of delays, two planes called back from the runway and infinite frustration for furious passengers...

The chaos at Terminal 7 was caused by screener Alija Abdul Majed, who had manned Lane No. 1 during the morning shift with no idea his metal detector had no juice. Amazingly, he failed to realize that alert lights never flashed once as streams of passengers filed through the dead detector, the sources said.

Majed was so clueless that he couldn’t even tell police how long the machine had been shut off or how it happened, the sources said.

“It was simply an unplugged machine — the TSA doing its best,” another source said...

Higher-ups at the Transportation Security Administration finally discovered the security boondoggle at 9:44 a.m. — leaving the Port Authority with no choice but to call for a complete evacuation of the international terminal...

The TSA would not confirm or deny that its detector had been unplugged, releasing a statement saying only that a metal detector suffered a “malfunction.”

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