What’s Next with the Supreme Court

There is a lot of talk about the retirement of justice John Paul Stevens from the U.S. Supreme Court and the speculation by many has been as to which liberal will be nominated by Barack Obama to succeed him. The successor could cast a deciding vote on the constitutionality of Obama’s Health Care. And there has been speculation whether Senate Republicans — fresh from their recent loss will pull their punches on a Supreme Court nominee in order not to appear “obstructionist.” Senate Campaign Committee Chairman and Texas Senator John Cornyn said Republicans would “bend over backwards both in appearance and in reality to give the nominee a fair process.” So how serious is this going to be? The best way to decide that is take a quick look at what might be the short list of nominee picks that have been floated to replace Stevens.

  • White House advisor Cass Sunstein – Cass Sunstein is President Obama’s Harvard Law School friend, and recently appointed Administrator of the White House Office of Information and Regulatory Affairs. In a recent scholarly article, he and coauthor Adrian Vermeule take up the question of “Conspiracy Theories: Causes and Cures.” (J. Political Philosophy, 7 [2009], pp. 202-227). This is a man with the president’s ear. This is a man who would process information and regulate things. What does he here propose?

[W]e suggest a distinctive tactic for breaking up the hard core of extremists who supply conspiracy theories: cognitive infiltration of extremist groups, whereby government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of believers by planting doubts about the theories and stylized facts that circulate within such groups, thereby introducing beneficial cognitive diversity. (Page 219.)

In a recent Post by the Marc Estrin and he suggests that we read the above carefully again.

“Read this paragraph again. Unpack it. Work your way through the language and the intent. Imagine the application. What do we learn?

  • It is “extremists” who “supply” “conspiracy theories.”
  • Their “hard core” must be “broken up” with distinctive tactics. What tactics?
  • “Infiltration” (“cognitive”) of groups with questions about official explanations or obfuscations or lies. Who is to infiltrate?
  • “Government agents or their allies,” virtually (i.e. on-line) or in “real-space” (as at meetings), and “either openly or anonymously,” though “infiltration” would imply the latter. What will these agents do?
  • Undermine “crippled epistemology” — one’s theory and technique of knowledge. How will they do this?
  • By “planting doubts” which will “circulate.” Will these doubts be beneficial?
  • Certainly. Because they will introduce “cognitive diversity.”

Put into English, what Sunstein is proposing is government infiltration of groups opposing prevailing policy. Palestinian Liberation? 9/11 Truth? Anti-nuclear power? Stop the wars? End the Fed? Support Nader? Eat the Rich?”

It’s easy to destroy groups with “cognitive diversity.” You just take up meeting time with arguments to the point where people don’t come back. You make protest signs which alienate 90% of colleagues. You demand revolutionary violence from pacifist groups. We expect such tactics from undercover cops, or FBI. There the agents are called “provocateurs” — even if only “cognitive.” One learns to smell or deal with them in a group, or recognize trolling online. But even suspicion or partial exposure can “sow uncertainty and distrust within conspiratorial groups [now conflated with conspiracy theory discussion groups] and among their members,” and “raise the costs of organization and communication” — which Sunstein applauds as “desirable.” “[N]ew recruits will be suspect and participants in the group’s virtual networks will doubt each other’s bona fides.” (p.225).” An interesting note for those that know anything about property rights Sunstein in his 2004 book, Animal Rights, suggested that animals ought to be able to bring suit, with private citizens acting as their representatives, to ensure that animals are not treated in a way that violates current law. While the ABA states that Sunstein may be “a libertarian and a judicial minimalist ” his approach to limited government is skewed by his manor of attempt to “nudge” individuals into additional governmential control. This approach involves nudging behavior in certain ways, but leaving options–e.g., automatically enrolling employees in 401(k) savings plans but letting them opt out. Sunstein delivers his approach to writing in much the same manor in his coauthored book “Nudge” in which he states:

Libertarian paternalism, we think, is a promising foundation for bipartisanship. Â In many domains, including environmental protection, family law, and school choice, we will be arguing that better government requires less in the way of government coercion and constraint, and more in the way of freedom to choose. Â If incentives and nudges replace requirements and bans, government will be both smaller and more modest. So, to be clear, we are not for bigger government, just for better governance.

So we may be so much cattle to this prospective candidate. Next Eric Holder.

  • Attorney General Eric Holder
  • State Department advisor Harold Koh
  • Massachusetts’ Governor Deval Patrick
  • Michigan’s Governor Jennifer Granholm
  • D.C. Circuit Court Judge Merrick Garland

Next Attorney General Eric Holder

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