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Contra Nate Silver on Political IQ Tests OR On the Limits of Moneyball Philosophy
Nate Silver, on his new Substack argues that Sonia Sotomayor should retire, and that if you don't want her to retire you're a moron. Some pull quotes:
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Silver's core argument is that Sotomayor, at 70, is old; and according to models the Democrats are unlikely to control both of the Senate and Presidency in the near future, and that therefore Sotomayor should step down now when it might be possible for Biden, Schumer and co to replace her with another Democratic justice.
I find this take to be indicative of the flaws in Nate's own mindset, the Moneyball/Analytics/Sabermetrics venue that Nate comes from applied to politics, and to a certain extent to Rationalism more broadly, so I'd like to dig into why this is so wrong point by point. For the purposes of this argument, I am viewing this from the position of, as Silver defines it, a progressive or a "person interested in progressive outcomes" who would prefer liberal outcomes to SCOTUS cases. We will also assume that Sotomayor is a decent judge. It's not a particularly interesting argument if we argue that Sotomayor sucks, and anyway there's a point about that further down. I've loved Nate since his PECOTA days, I'm not reflexively anti-analytics, but it has to be balanced with humanity.
Much like the Moneyball Oakland As famously put together talented regular season teams that failed in the playoffs, Silver's approach to politics is about grabbing tactical victories, but will never deliver a championship. Sabermetrics types have long derided concepts like veteran leadership, man-management, The Will to Win, clutch play; we can't measure them on the numbers then they don't exist. Yet while analytics have value, so does traditional strategy, team variance isn't entirely random. Let's examine how some of this applies to politics here:
Flaw 1) What Gets Measured Gets Managed Silver builds a toy model, demonstrates that within his toy model SCOTUS seats are really valuable, then assesses possession of SCOTUS seats based on raw-count of votes by partisan appointment. This is an extremely limited view of what impact SCOTUS justices can have. Sotomayor is 70 years old. Going by most projections, she has about 16 years to go. There's some indications of poor health outcomes, balanced by the fact that she'll get top-tier medical care. For reference, Scalia would have been 70 in 2006. Scalia was very important between 2006 and his death. His impact in general has been almost immeasurably huge on American jurisprudence, even the court's liberals owe a lot to Scalia in their opinions. He achieved this mostly by sheer force of will and intellect, and a long stint on the court. Clarence Thomas is another example of a justice who slowly came into his own, and in the last ten years (his age 65-75 seasons) has gone from punchline to influential intellectual force. SCOTUS justices take time to develop, both in terms of their intellectual impact and in terms of their relationships on the court. Replacing Sotomayor early may buy you a few extra years of a nominal democrat on the court, but it may cost you a more influential judge in the meantime. Silver, because his toy model can't account for jurisprudential influence, ignores all this. It's impossible to model, so it is ignored, or worse derided as fake and gay.
Flaw 2) Defeatism Silver derides politicians as irrational, for foolishly believing "their party is on the Right Side of History and has the morally correct answers on the major questions of the day." This is accurate, but also ignores the point: if you don't think your party is on the Right Side of History and has the morally correct answers, then you shouldn't be doing this. The only reason to get into politics is because you think you can win. If you can only lose, you need to change strategies. Silver's models predict that Democrats won't control the Senate for some time; that is within the power of the Democrats to change! Replacing Sotomayor because you likely won't control the Senate for another 16(!) years is like signing a high-priced closer to get a .500 baseball team an extra win, you still aren't making the playoffs. It also ignores history: the Senate has changed hands repeatedly, 8 times since 1980, or roughly once ever six years. If you start from the assumption that the Democratic message is basically unpopular in much of the country, such that they will never hold a Senate majority, then the Democratic party needs to rebuild from the ground up. Don't waste energy lobbying for Sotomayor to retire, lobby for Ds to pull their heads out of their asses in the heartland. If Democrats don't think they can win majorities, they shouldn't be Democrats, and shouldn't care about the SCOTUS majority. If you don't see a path to victory for your project, you need a new project. There's even a sort of "tanking" argument to be made that strategically, 6-3 and 7-2 aren't that different, so it doesn't matter if Sotomayor is replaced by an originalist, and it's politically better for Ds to face a brutally conservative SCOTUS, which might allow them to pass laws to bypass SCOTUS altogether, rather than a mildly less conservative SCOTUS. The only path to a liberal Majority on the SCOTUS is for Ds to win the Senate and the Presidency, repeatedly, they need to be working towards that goal, not maintaining their minority.
Flaw 3) Eliminating the Individual Silver assumes that any D is as good as any other D. That any D Senate is as good as any other D Senate, and any D justice is as good as any other D justice. This is misguided. The D justice that would get past this D Senate is probably going to be a milquetoast, below average, moderate. Sinema and Manchin wouldn't have it any other way, and no Rs have the guts to cross the aisle. If Sotomayor had the opportunity to retire with a 55 or 60 vote D majority, she could be assured of being replaced by a successor with a brilliant career ahead of him. If Sotomayor retires now, she's quite likely to be replaced by a third-rate non-entity. This is the Trump problem that made the original FiveThirtyEight blog unreadable since 2016: Trump didn't just accept the numbers, he changed them. That's what political leaders do: they don't accept facts on the ground, they alter them. Sabermetrics treats the ballplayers like numbers, probabilities of outcomes at the plate, but in order for every MLB player to get to the bigs, to become those numbers, that player had to believe in himself. He had to work hard, thinking he could get better, thinking he could win, even if statistically he wasn't likely to. Nobody ever made it to The Show surrendering to the numbers.
This kind of short-sighted, analytical approach to politics, slicing and dicing demographics to achieve tactical victories, is the noise before defeat. We saw the flaws in this strategy in the Clinton campaign, and to a large extent in the Biden '20 campaign where Trump vastly over-performed his underlying numbers. We're watching Biden '24 sleepwalk towards a possible November defeat, relying on demographic numbers that seem increasingly out of date. And while it's not all Nate Silver's fault, this kind of sneering bullshit is what drives people away from politics. It drives away exactly the people you need: people who irrationally believe in your political project, and will sacrifice for its success. It points away from leadership and towards management. It undermines coalitions by making it obvious they are only ever conveniences. It is bad politics.
TLDR: Nate Silver thinks 70 is a good retirement age for Sotomayor because we might not see a Democratic Senate Majority again for a while, but if we can't get a D Senate for 16 more years, what's the point anyway?
I don't know enough about the American legal system, until it's my headache, but how much does seniority matter in the SC?
Are the new "young" judges put on the back bench (metaphorically)? My understanding is that they're all nominally equal, so what does it take for one to establish themselves like Thomas did and get taken seriously. How much does their opinion matter, and how is that sausage made?
The other responses you've got are mostly correct, but I'll elaborate on a few points. I've written a bit about the process before here.
@VoxelVexillologist is correct to point out Roberts' automatic seniority as Chief and its consequences, but the case is complicated by the fact that the right-ish portion of the Court has six Justices, not five. Roberts is certainly inclined to write more moderately than Alito, but if he writes too moderately, Thomas/Alito/Gorsuch/Kavanaugh/Barrett can form a majority without him. Dobbs is an exceptionally high-profile example of exactly that.
Recusal is more of an issue for a new Justice, but still pretty rare unless the new Justice was a very recent Solicitor General (or other high-ranking member of the Justice Department, including the AG). The Solicitor General is the number two guy at Justice and has the special responsibility of representing the US in court--he usually does so personally before the Supreme Court, and delegates to staff in lesser cases--so he'll often be involved in litigation strategy of multiple cases that later appear before the Supreme Court.
Each Justice has exactly one vote. The way any given Justice may punch above or below his weight is based entirely on his personal relationships with the other Justices (this is much more likely to be a negative factor; you don't get to the Supreme Court with a weak ego) and the persuasiveness of his arguments, most often in writing. My personal guess is that Thomas, Kavanaugh, and Barrett are very slightly more advantageously placed than average, and Roberts and Jackson are slightly less than average.
@pigeonburger is right about how the majority opinion of the Court is initially assigned, but not the dissents. All dissents and concurrences are not assigned; they are written by any Justice who chooses to do extra writing. There was a recent case where Kagan registered her dissenting vote on the outcome, but neither wrote a dissent herself nor joined another opinion, so her exact reasoning is unknown. This is perfectly valid; it's just much more common that Justices are inclined to explain themselves, both to their colleagues and to posterity.
One point often missed is that in a given Term--and indeed, in each month--every Justice writes as close as possible to exactly the same number of majority opinions. This may seem unintuitive, but remember that the most common voting outcome in any given case has always been 9-0, and still is. Naturally, the more conservative Justices will be more likely to write for the majority in controversial decisions today, but that just means that Kagan, Sotomayor, and Jackson are more likely to be assigned the 8-1 or 9-0 cases. This practise is intended to make sure that each chambers is carrying its weight in terms of the essential work of the Court. As I said above, though, dissents and concurrences do not factor into load-balancing--those opinions are entirely discretionary on a Justice-by-Justice basis, and are purely extra work.
I appreciate the exhaustive overview!
Do dissents carry any weight as legal precedent, or the rare instances where a new Supreme Court overturns the established precedent intentionally?
Both dissents and (except in unusual cases[1]) concurrences have zero legal weight as precedent, though this needs a little further unpacking.
Formally, the Opinion of the Court is binding on lower courts, and is precedent to be followed or rejected by future Supreme Courts. The wiggle room is that a lower court may argue that an existing Supreme Court decision is distinguishable from the current case because of [reasons]; that explanation may vary wildly in ingenuousness. The Supreme Court has a fancy legal doctrine called stare decisis, which means that it's more important to be consistent than correct, though some Justices (Roberts) are bigger fans of the doctrine than others (Thomas).
Every opinion of any type can affect future legal development to the extent that the arguments therein are persuasive to future Courts. If a Court decides that a prior decision was in error, it may overturn the precedent by a simple majority, just like every other decision. Often, the dissents in the original case may provide the rationale for a later reversal, though the Court tends to change its institutional mind by individual retirement and replacement, rather than a particular Justice reversing his earlier opinion (though that too has happened).
Also, there is no formal difference between a 9-0 decision and a 5-4 decision. Both carry the full authority of the Court, so a 5-4 decision may overturn a 9-0, hypothetically. Informally, though, every judge can do the most basic of math and realize that a 9-0 decision is less likely to be overturned in a future case than a 5-4.
[1] You can have a situation where the Court splits 4-2-3 or the like on a given case, where the 4 and the 2 may agree on the outcome of a case (and the 3 disagrees), but they do not agree on a reasoning. The case would be resolved as a 6-3 decision as to the outcome, but with no reasoning, as no opinion carried a majority. That said, the lower courts would treat the 4 opinion as a strong hint, since it's the closest to a majority, even though the logic is not formally binding. The Justices try to avoid this outcome, if possible.
Marks v. United States:
That generally would be the two-justice opinion.
It might be, but not necessarily. In my example, it's impossible to tell, because I didn't assign rationales to any of the positions, so the two-Justice opinion might be broader or narrower than the four-Justice opinion. "Narrowest grounds" means in context 'the opinion that would control in the fewest potential future cases.' Via your link, Memoires, the earlier case referenced in Marks, was an example of a two-Justice expansive opinion added to a three-Justice narrower opinion to form a five-Justice majority (plus Stewart writing for himself to make six), and Marks indicates through your quoted language that the narrower three-Justice opinion is controlling.
You're correct that my "but with no reasoning" was in error, though, and thanks for the correction.
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Formally, I believe the task of writing the decisions is given out by the chief justice (if in the majority) or the most senior justice. I've seen some suggest that Roberts keeps some of the potentially-spicier cases for himself and writes more moderately than, say, Alito would. There are also fairly often cases where a new justice has to recuse themselves because they either previously judged the case on a lower court, or sometimes argued for one side. Neither of those is a particularly large concern, I would think. Their opinions are, to my knowledge, formally given equal weight otherwise.
I don't know about informally, where I suspect it matters for at least some time for a new justice.
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Americans can correct me if I'm wrong but from what I hear, their votes are worth the same. Seniority matters as to who decides who gets to write opinions. The most senior member of the majority (which is automatically the chief justice if he is in the majority) assigns redaction of the opinion to one of the members of the majority. Same happens for the dissenting opinion (most senior judge in the dissent, automatically the chief justice if he is dissenting with the majority, choses who writes the opinion).
So seniority is important, but not THAT important. What does matter though is that their opinion is taken into serious consideration by other judges. Ideally, a judge to the Supreme Court should never be a blindly partisan hack, but in practice it can (very charitably) said that they are at least preselected for an extreme adherence to one school of thought with regard to how flexible the Constitution should be. But a particularly eloquent opinion might be able to sway swing votes or even peel off a justice or two from the other bloc, so experience and quality as a justice matters.
The reasoning in opinions also impact law students. Scalia’s textualism became much more pronounced when lawyers who read his opinions in law school came to dominate the practice.
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