Unpacking the Supreme Court

We currently have to wait for a Supreme Court justice to die or retire before a new one can be appointed. The idea is to keep the size of the court relatively constant and to avoid FDR-style "packing" of the court to favor one side or the other of the ideological spectrum. Your Random Philosophizer has a different idea.

Yes, we shouldn't let the Supreme Court get too small. I would say that there should be at least one justice for every federal circuit, currently thirteen. If the number of justices should fall below that number, then the current president should appoint one. If the appelate court system ever gets modernized so that there is a more reasonable number of circuits, then the number of justices would rise. The reason for this is that since the "business" of the court comes primarily from the appeal courts, the court could assign one justice to handle preliminarily one circuit court's output. However, the minimum could be tied to some other factor, such as one justice for each 50 million US citizens, or one justice for every four states. It could even be set at the current number of justices (nine). I like using the number of US circuit courts because it is a number that will necessarily vary, but conservatively, and because there is a functional relationship between the circuits and the Supreme Court.

However, I think that regardless of the size of the court, each presidential term should see the appointment of one justice. That is, one of the duties of each president, during each term, would be to appoint a new justice to the Supreme Court. Two-term presidents would obviously get two turns at bat. In fact, this may be about average for presidential terms, or at least in the same ball park.

It's a simple idea really. Every term, the president will appoint a Supreme Court justice. If, due to death or retirement, the number of justices should fall below the number of federal circuit courts, the current president will appoint a replacement. If a death or retirement in the court should occur before the president has appointed a justice during the term, bringing the number below the minimum, then the standard appointment for that term would come first. That is, the appointment would replace the retiring justice and restore the minimum. However, if after making his or her appointment for the term, the number is still lower than the number of federal circuits, then the president will continue to make appointments until the minimum is restored.

Under this system, the court could grow at the rate of about one justice every four years if relatively young, healthy justices were appointed, and the composition of the court would tend to reflect the recent history of electoral trends. Since the court would be larger, the results of the court on decisions would have more "dynamic range", and, possibly, be more just and more reflective of the will of the People. While it is true that every president would, under this system, leave his or her mark on the court, since the size would be larger, the impact of any given president would be, on average, less than what we have seen recently where some presidents have made two appointments (2/9) of the court. Each president, under the new system, would have an impact of 1/N, sometimes 2/N, where N would currently be at last 13; this is generally smaller than is currently the case. Since the court would usually be larger than the minimum, it would be possible for justices to die or retire without triggering a political frenzy, since they would not need to be replaced. If there are more justices than circuits, assignments to different circuits could more accurately reflect differences in the activity level in each circuit.

There would be an interesting political dimension to this: since after each presidential election, a new justice would join the court, presidential candidates could speak openly about their philosophy regarding the court. It would become a new element of presidential elections, one that I think deserves to be given a higher profile.

Greg Shenaut


Voodoo neuroscience

OK, here's another in a long stream of published experiments that take a well-known psychological phenomenon X, scan people's brains somehow (in this case, fMRI), and say "Look: brain waves or cerebral blood flow or whatever has a pattern that correlates with X, so we now understand why X occurs!" However, no new understanding of why X occurs has resulted from the brain information. Instead, we simply know another fact about the phenomenon, and a rather insignificant one at that, because if you accept that brains underlie all psychological phenomena, then the important news would be a well-tested null result, that there was no brain correlation with a given psychological phenomenon. Let me expain.

The reported study follows up a phenomenon regarding the behavior of gamblers that is so well-established that the entire slot-machine industry builds and programs their machines to take advantage of it: near misses (two lemon and a strawberry) and machine that allow the gambler to control the process partially (e.g., to make one of the spinning columns stop at a certain point) motivate certain gamblers to keep playing almost as much as consistent wins. They measured fMRI bloodflow and found that, indeed, the brains of gamblers respond similarly to wins and near misses. However, nothing in their research explains why the brains of gamblers respond in this parallel fashion, or even if perhaps the similarity in the blood flow pattern is present because the gamblers perceive winning and near misses as similar, that is, reverse causality.

Yet, a purely behavioral study of the phenomenon, one that perhaps measured the effects of things like task complexity, intelligence, income level, and so on, would be much less likely to excite readers, and, even though the research would be much less expensive to run (fMRI machines are expensive!), it would probably be much less likely to be funded.

Why? My explanation is what I will call "voodoo neuroscience". The experiment I linked to above is a perfect illustration. You just take expensive technology and apply it to find some new correlation or enhanced precision of measurement, even though it adds nothing or very little to our understanding of the underlying phenomenon, and it is viewed as exciting, revolutionary, and important. A linguist I knew used the expression "physics envy" for such voodoo scientific endeavors.

I'm not saying that we should not do the cognitive fMRI experiments, but I am saying that in terms of costs and benefits, the magnitude of the benefits should not be inflated as they currently are, and as they were in the fMRI slot machine study.

Greg Shenaut


Another screwy tax proposal

Well, I don't know about you, but when it comes to taxes, I think I'm bothered as much by the complexity of our current system as I am by paying the actual taxes. The recent disgrace of Tom Daschle et al. hasn't made me change this idea. I mean, take the money but don't make it so difficult and stressful.

One perennial idea to simplify taxes is the consumption tax, basically a national sales tax. When you buy something, you pay taxes, and you don't pay any other taxes. This is definitely simpler, and no one has denied that it could be used to raise all necessary revenues. The problem is that in all forms of it I have heard of, it is horribly regressive, in that poorer people would end up paying a much greater portion of their income in taxes than wealthier people.

So, the screwy idea I came up with this morning is that by default, a national sales tax rate -- possibly with per-locality or per transaction-type adjustments -- is set to a universal amount. For the moment, let's say 15%, just to pick a number. 15% of all normal transactions would go to the tax collector. Yes, the rate could be modified to get some state taxes in there, and also there could be lower rates on things like carrots and bread and higher rates on things like television sets and cigarettes. But the nominal rate would be a standard 15%. However, people could apply for something called a "tax discount card", which would contain ID information and electronically coded information that could reduce the tax rate applied to a certain transaction. This would be the means to implement progressivity in the sales tax.

From the retailer's point of view, the tax discount card would simply be swiped just like a credit card, and the tax rate of the transaction would be adjusted accordingly. It would really be no extra work for them. All of the necessary information to document the tax would be supplied automatically.

What about privacy? Well, use of the tax discount card would be optional. If you didn't want to use your card (or if you don't qualify for any discounts), you can do an undocumented transaction and be taxed at the full nominal rate for the transaction type and locality. Basically, if you want to pay less taxes and if you have low income, lots of kids, or some other reason why your taxes should be reduced, you can apply for and use a card.

In terms of simplicity, the process of applying for and renewing the discount card could be complex, no question about it. But what this plan does is to separate out the complexity from the taxation itself. And, except for people whose circumstances change rapidly, once the first card is acquired, renewal cards would be less complex.

Families could get "family rate" cards instead of having each individual apply for their own.

One interesting twist is that tourists and other transients would pay the full rate, and people from out of state would not pay the local state supplementary tax.

Well, that's the idea.