Shadow Docket and ICE

 Ilya Somin at Reason:

Today, the Supreme Court issued a "shadow docket" ruling staying a district court decision that had enjoined ICE from engaging in racial and ethnic profiling in immigration enforcement in Los Angeles. The decision was apparently joined by the six conservative justices; the three liberals dissented. As is often the case with "emergency"/shadow docket rulings, there is no majority opinion. Thus, we cannot know for sure what the majority justices' reasoning was. We have only a concurring opinion by Justice Brett Kavanaugh. But that opinion has deeply problematic elements. Most importantly, it is fundamentally at odds with the principle that government must be "color-blind" and abjure racial discrimination.

The district court found extensive use of racial profiling by ICE in immigration enforcement in the LA area, and issued an injunction barring it. Justice Kavanaugh, however, contends that the profiling is not so bad, and does not necessarily violate the Fourth Amendment because, while "apparent ethnicity alone cannot furnish reasonable suspicion," it could count as a "relevant factor when considered along with other salient factors."

Last month Erwin Chemerinsky wrote at SCOTUSblog::

The Supreme Court long has had an emergency docket. These are matters where a party comes to the court for an order on an emergency basis without full briefing and oral argument. For example, those facing the death penalty often have gone to the court seeking a last-minute, emergency stay of execution. But as Stephen Vladeck documented in his excellent book, The Shadow Docket, over the past decade there was a notable growth in matters decided by the court on its emergency docket.

Since Professor Vladeck’s book was published in 2023, the emergency docket has taken on even greater significance. In the 2023-24 term, there were 44 matters on the emergency docket. In the 2024-25 term, through June 27 (the last day decisions were released), there were 113 matters on the emergency docket.

In the past two months, the court has issued a number of important rulings on its emergency docket concerning the legality of actions by President Donald Trump. Virtually all have been 6-3 rulings, with Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissenting.

...

Significant rulings without the benefit of full briefing, oral argument, and deliberation among the justices. As a lawyer, I want the opportunity to fully brief my case and to argue it to the court. The procedures in every appellate court are based on the assumption that briefing and argument can matter greatly. Yet, the briefs in cases on the emergency docket are nowhere near as developed as those in cases on the merits, and there is no oral argument. Nor do the justices even meet to discuss these cases before issuing rulings on them. If one believes that briefing, arguing, and deliberating matters are essential to a system of law – and I certainly do – we should be deeply troubled by their absence when the court is issuing major rulings without them.

Congress and Deliberative Technology

A number of posts have discussed congressional capacity, legislative productivity, and deliberation.

Lorelei Kelly at The Conversation:

Congress has been working to modernize itself, including experimenting with new ways to hear local voices in their districts, including gathering constituent feedback in a standardized way that can be easily processed by computers.

The House Natural Resources Committee was also an early adopter of technology for collaborative lawmaking. In 2020, members and committee staff used a platform called Madison to collaboratively write and edit proposed environmental justice legislation with communities across the country that had been affected by pollution.

House leaders are also looking at what is called deliberative technology, which uses specially designed websites to facilitate digital participation by pairing collective human intelligence with artificial intelligence. People post their ideas online and respond to others’ posts. Then the systems can screen and summarize posts so users better understand each other’s perspectives.

These systems can even handle massive group discussions involving large numbers of people who hold a wide range of positions on a vast set of issues and interests. In general, these technologies make it easier for people to find consensus and have their voices heard by policymakers in ways the policymakers can understand and respond to.

Governments in Finland, the U.K., Canada and Brazil are already piloting deliberative technologies. In Finland, roughly one-third of young people between 12 and 17 participate in setting budget priorities for the city of Helsinki.

In May 2024, 45 U.S.-based nonprofit organizations signed a letter to Congress asking that deliberative technology platforms be included in the approved tools for civic engagement.

In the meantime, Congress is looking at ways to use artificial intelligence as part of a more integrated digital strategy based on lessons from other democratic legislatures.

Degraded Deliberation

A number of posts have discussed congressional capacity, legislative productivity, and deliberation.

 Philip Wallach at AEI:

As it scrambled to pass a continuing resolution and avoid a government shutdown at the end of 2024, the 118th Congress ended much as it began—with serious doubts as to whether America’s legislature can rise to the level of bare competence. The House of Representatives is mainly adrift because of the difficulties Republicans had in electing a Speaker in January 2023 and the consequences of that struggle for the House Rules Committee. Understanding the House’s current malaise requires understanding the degraded state of its deliberations, which in turn requires digging into the nitty-gritty of how it considers bills.

...

Until this Congress, textbooks of procedure could straightforwardly explain that small and uncontroversial bills would be moved through suspension, while big and controversial bills would move under procedures agreed to by the Rules Committee. These rules are endlessly adaptable. They can allow for lots of debate and consideration of amendments (usually when the House organizes itself as the Committee of the Whole), or they can shut off debate entirely and force members to vote. In teeing up a bill for consideration, they have traditionally also debated many of the substantive issues implicated, offering a “dress rehearsal” for the floor debate itself in a way that ought to improve deliberation.

...

Most of [Speaker Mike] Johnson’s colleagues find him more attentive than McCarthy, but in practice Johnson has done anything but decentralize. Under his leadership, the House depended on suspension to move several pieces of controversial legislation, including the continuing resolution that averted a government shutdown in late December 2024—the final version of which was introduced about an hour before the vote on final passage. Member input in the final stages of the legislative process occurs almost exclusively by bending the ears of top leaders, with amendments mostly prohibited.

Because passage under suspension requires the support of two-thirds of members, some may wonder if there’s anything wrong with relying on it to move legislation through the House. These defenders might point out that although suspension leaves little room for floor debates and cuts off all possibility of amendment, neither of those activities has been constructive in recent years. Yes, suspension minimizes formalities, but plenty of informal deliberation can still occur between legislators both in the public sphere and privately. Negotiation is alive and well behind the scenes.

The problem with this defense is that it requires we place extraordinary trust in our top partisan leaders, who decide among themselves what ought to be in the bills that will be rushed to passage. And, to put the matter gently, we are not in a high-trust moment. When matters are decided behind closed doors, many citizens suspect they are being sold out—and plenty of members are willing to voice those concerns. Given how little input most members have into the content of final deals, it is unsurprising that they object to the whole process.

...

Withered deliberation is at the heart of many of our most intractable policy issues. The Congress’s ability to deal with immigration and border security, for example, has been poisoned by immigration hawks’ decades-long sense that their perspective was being systematically excluded from debate by bien-pensant dealmakers who derided critics as racists or xenophobes. Even when leaders have supported big deals (as in 2007 and 2018), they have not structured the process to include all voices, and the hawks have found various ways to tank their vaunted bipartisan deals.

...

And what of the Rules Committee itself in the 119th? As of this writing, it is still without a chair; the expectation is that the dissidents will keep their three seats, though Massie may be swapped out for a substitute. The need to pass a Republican president’s agenda may tamp down on dissent, but Republicans’ highest hope seems to be docility. Despite the many tensions between factions in their ultra-thin majority, there is little sense of the need for deliberation, either in the committee itself or on the floor. By neglecting the need to work through difficulties through open debate, Republicans are setting themselves up for explosive failures on the floor.

Appropriations

 Kevin D. Williamson at The Dispatch:

Appropriations, which is the nitty-gritty business of putting money into agency coffers where it may be spent, theoretically happens in 12 parts, with 12 subcommittees writing appropriations bills and these then going to the House and Senate appropriations committees. The subcommittees are for the most part relatively capacious slop buckets: Agriculture, Rural Development, and Food and Drug Administration; Energy and Water Development and Related Agencies; Commerce, Justice, Science, and Related Agencies; Transportation, Housing and Urban Development, and Related Agencies; etc. Some are more focused, such as Defense—not to be confused with Homeland Security or Military Construction, Veterans’ Affairs, and Related Agencies.

When things are working the way they are supposed to, the appropriations subcommittees spend a lot of time listening to testimony and holding hearings about this or that program and its financial needs, with members of each party negotiating with their own fellow partisans and with those of the other party, doing all the usual horse-trading and favor-swapping and such that constitutes ordinary politics. It is a long, complicated, exasperating, labor-intensive process that, for the average congressional specimen, is not nearly as much fun as getting a hit on Fox News or MSNBC. And so we end up with what Jonah Goldberg calls our “Parliament of Pundits,” where relatively little work is done in the way of the ordinary business of politics (much less the ordinary business of governing!) and, while our lawmakers and bureaucrats angle for television time and hone their own-the-opposition social-media strategies, the actual fiscal process lapses into chaos. Holding off that chaos is what such stop-gap measures as “continuing resolutions” and “omnibus appropriations” and such are all about.

It matters how much money Washington spends. It also matters—a great deal!—what it spends that money on. And here I do not mean big broad vague categorical buckets such as “defense” or “education” or whatever, but actual programs. There is some education spending that is excellent and worthwhile and worth expanding, and some education spending that ought to be eliminated entirely, the programs ended, the records burned, the bureaucratic fields sown with salt by libertarian centurions under the command of Nick Gillespie (if only because I think he is likely to own a toga in addition to his 41 black leather jackets). (Rough estimate.) Talking about “how much we spend on education” doesn’t get to the important details.

You know what probably could get into those details? Congressional subcommittees doing their g—mned jobs.

“Getting spending under control” is only in part about debt and deficits—as important as those factors are. It also is about making sure that the money we do spend, we spend on things that are useful and productive. And that is why it is important to understand that continuing resolutions and budget ad-hocracy isn’t just about avoiding the hard work of intelligent appropriations and oversight—it is about avoiding accountability. If you lump everything together into one big mess and then pass it at the last minute under the shadow of a budget crisis, then you can pretend that you have an excuse for not watching where the money is actually going. And then you can go back to your career as a half-assed cable-news pundit who also happens to serve in Congress.

CRS 2024

A number of posts have discussed congressional capacity. The Congressional Resarch Service is especially important in this regard.

Kevin R. Kosar at The Hill:

Last week, the Library of Congress made an important announcement: The Congressional Research Service (CRS) is getting a new director. Karen Donfried will begin her 10-year term on Sept. 23. She takes over for interim director Robert Newlen, who has led the agency since July 2023.

...

Congress heavily leans on CRS to inform the legislative debate. CRS staff provided Hill staff and legislators with 479 in-person briefings, 2,754 confidential memoranda, 22,212 telephone responses and 36,222 email responses, according to the agency’s 2022 report. The agency also wrote 1,093 reports and general distribution products for Congress and 9,652 bill summaries, which the Hill and all of America can find on Congress.gov.

...

Like any new leader, she will have to earn the trust of staff. Doing that will require spending a lot of time managing by walking about and encouraging staff to explain what they do along with what is working well and what isn’t.   And then she will need to start remedying the troubles, which are many. For example, various technology issues hinder CRS staff’s capacity to serve Congress. Staff works on buggy software and their phones often do not work due to cellular dead spots in the Madison Building, where CRS is headquartered.   

Donfried also will have to address some of the management problems, which she will no doubt learn about during her listening tour. Poor leadership has driven away a lot of staff, as Congress learned at a hearing in 2023.  CRS too often has placed people who are highly expert in policy analysis in management positions despite them not being people persons. Those individuals will need to be replaced. She also will need to figure out how to position CRS in the 21st century. Fifty years ago, the agency had a quasi-monopoly on the provision of expert information and analysis to Congress. These days, it faces stiff competition from think tanks, foundations, interest groups and private research firms. 

As I see it, the way forward is for CRS to lean into its six core strengths: It is a nonpartisan organization with deep expertise and long institutional memory that can provide rapid responses to congressional requests with customized research products and services that draw on diverse, in-house knowledge.

Congressional Testimony

   A number of posts have discussed congressional capacity, legislative productivity, and deliberation.

My experience has been that the entire Democratic membership of the committee shows up, decently well briefed by staff, while only one or two Republicans show up, having done little to no preparation. It's extremely frustrating for Republican witnesses. Basically all you have is…

— Robert P. George (@McCormickProf) August 27, 2024

Congress and Deliberation

  A number of posts have discussed congressional capacity, legislative productivity, and deliberation.

Jordan T. Cash and Kevin J. Burns at Law & Liberty:

The Senate’s smaller size, with senators representing the states and holding office for longer terms, ideally allows for more in-depth discussions and creates a degree of stability within the law. By contrast, the much larger House with its smaller districts and shorter terms, helps guarantee that the representatives are responsive to the public mood and that every geographic part of the country has an opportunity to have input into the formation of a law. These provisions not only encourage representative government but also promote legitimacy. Because Congress represents every part of the country, Philip Wallach argues in his recent book, Why Congress, “Only congressional deliberation is capable of tackling the [country’s] thorniest challenges in a way that the whole nation will accept as legitimate.”

Moreover, congressional debates can be taught in ways that might even engage students more than presidential speeches or The Federalist. While those works typically focus on presenting one side of an argument, congressional debates have counterarguments built into them. This provides students with the chance to read, understand, and perhaps even identify with different lines of argumentation presented in the same reading which can then be teased out in class discussions. Teaching congressional debates also allows students to see how abstract theoretical arguments may intertwine with the actual practice of politics and better understand the limits imposed by practice upon theory. Seeing how debate is promoted or stifled by congressional rules of procedure may further demonstrate how such ostensibly mundane issues contribute to the function (or dysfunction) of the institution.

CRS Problems

Daniel Schuman at Washington Monthly:

CRS employs hundreds of experts—economists, lawyers, reference librarians, and scientists—to provide Congress with research and analysis. For most of its history, the agency had a hard-won reputation for providing independent and authoritative advice. But CRS’s usefulness to Congress has suffered over the last three decades. Years of mismanagement led to an insular culture and a glacial pace of technological modernization. Right-wing political attacks drove out experienced analysts and intimidated the leadership into making the organization’s policy analysis cautious and insipid.

CRS embodies some of the worst dysfunction of the entire legislative branch. With a few notable exceptions in recent years, Republicans inspired by the Newt Gingrich-led revolution of 1995 have advanced policies that undermine their branch’s ability to function, regardless of when the GOP is in charge of one or both chambers. Since 1994, CRS and another of Congress’s support agencies, the Government Accountability Office, have each lost more than a quarter of their staff. Congress has also cut its own member and committee staff and suppressed staff pay, focusing meager resources on essentials like security and physical infrastructure. The result is a vacuum of expertise. Without reliable expertise in-house, members look outside Congress and its support agencies for basic facts and analysis, leading to an undue reliance on lobbyists, advocates, and the executive branch.

Fortunately, Congress has begun to revamp CRS as part of its larger push to modernize the entire branch. The House Administration Committee and its Senate counterpart completed the first item on this to-do list by pushing out [Mary] Mazanec and starting a search for a new leader of the 600-person-strong agency. Now, the House is moving forward with legislation to empower CRS to more easily get information from the executive branch and eliminate unnecessary expenses.

Regulation and Messaging Votes

Don Wolfensberger at The Hill:

[On] three consecutive days (July 9-11), the House flexed its anti-over-regulatory chops by passing three measures disapproving executive agency regulations ranging from women’s rights to home appliance energy standards.

Then, on the final day, the House turned around and voted 205-213 to defeat its own funding bill for fiscal 2025, the Legislative Branch Appropriations Act. Ten Republicans and all but three Democrats voted against the measure. To say the House was sending mixed signals as to its self-worth as an institution would be an understatement, though the 15 members who did not vote might have produced a different result. Some leaders are still puzzling over why the House would bite the hand that feeds it — which is to say, its own hand.

 ...

According to a Congressional Research Service brief (updated Feb. 27, 2023), the Congressional review Act has been used to successfully overturn 20 rules: one in the 107th Congress (2001-02), 16 in the 115th Congress (2017-18), and three in the 117th Congress (2021-22).

...
The partisan votes on all three regulation disapproval measures and the legislative branch appropriations bill are telling. The two parties obviously differ on many policy issues these days, and that is reflected in the marked increase in strictly partisan votes. It is also understandable that a House Republican majority will push back on regulations promulgated by a Democratic administration.

The fact remains, though, that in a Congress with split party control of the two chambers, and with a Democratic president to boot, the exercises we witnessed last week were little more than partisan messaging, doomed ultimately to fail.

Until Congress gets serious about strengthening the resources of its committees and support agencies so that it can resume bipartisan deliberations and legislating, finding common ground will be impossible. Last week was a zero-sum game, only spitting-out campaign fodder that doesn’t do a thing about solving the country’s problems.  

Campus Protest

Many posts have discussed deliberation, argument, and the value of viewpoint diversity.

Princeton President Theodore Eisgruber:

Confrontations at Columbia, Yale, and other campuses around the country have highlighted the importance of “time, place, and manner” regulations to universities’ academic and educational missions. Because the enforcement of these rules is essential to our community as well, I wanted to offer some observations about their role at Princeton and their relationship to other free speech principles.

Princeton’s free expression policy, like the First Amendment to the United States Constitution, protects a strikingly broad range of speech. It “guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.” It specifically protects even speech that “most members of the University community [deem] to be offensive, unwise, immoral, or wrong-headed.”

Over the course of this academic year, we have seen again just how broad these rights are. In August and September, for example, I resisted calls to censor or condemn a controversial book that criticized Israel in harsh terms. In subsequent months, the University repeatedly protected the right to protest even when those protests included chants offensive to many members of the University — including to me personally.

Despite its breadth, Princeton’s free speech policy — again, like the First Amendment to the Constitution — contains exceptions. For example, it prohibits genuine threats and harassment. It also explicitly recognizes that “the University may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University.”

The University thus may, and indeed does, limit the times and places where protests can occur. It may, and indeed does, prohibit tactics, such as encampments or the occupation of buildings, that interfere with the scholarly and educational mission of the University or that increase safety risks to members of the University community.

These time, place, and manner regulations are viewpoint-neutral and content-neutral. They apply to any protest or event, regardless of which side they take or what issues they raise.

Time, place, and manner regulations are fully consistent with — indeed, they are necessary to — Princeton’s commitment to free speech. The purpose of our policy is “to promote a lively and fearless freedom of debate and deliberation,” not simply to maximize expression in all its forms, no matter how disruptive.

Dialogue, debate, and deliberation depend upon maintaining a campus that is free from intimidation, obstruction, risks to physical safety, or other impediments to the University’s scholarship, research, and teaching missions.

Princeton’s time, place, and manner regulations include a clear and explicit prohibition upon encampments. They provide that “camping in vehicles, tents, or other structures is not permitted on campus. Sleeping in outdoor space of any kind is prohibited.”

Encampments can obstruct others from moving freely or conducting University business. They can create health and safety risks. They require significant staff time to keep occupants and bystanders safe, thereby diverting people and resources from fulfilling their primary purpose. They can intimidate community members who must walk past them. There is no practical way to bar outsiders from joining the encampments.

As recent events vividly illustrate, encampments are also prone to become sites of confrontation. Columbia University moved classes online because of concerns about the safety of its students. At Yale University, a student reportedly had to seek medical attention after an altercation at an encampment.

At ordinary protests, our Free Expression Facilitators, in partnership with the Department of Public Safety, work assiduously to minimize or de-escalate confrontations before they become harmful; the 24-7 nature of encampments makes that assignment nearly impossible.

Our ability to discuss difficult, sensitive topics depends partly on the culture of our community. I am grateful to everyone who has helped Princeton to talk constructively about hard questions during this very challenging year.

Our success also depends on the consistent application of our policies protecting free speech. Princeton will continue to enforce those policies resolutely, including both this University’s expansive protections for the expression of controversial ideas and the time, place, and manner regulations that enable us to engage in thoughtful dialogue, debate, and deliberation about those ideas.

Congress: Neither Productive Nor Deliberative

A number of posts have discussed congressional capacity, legislative productivity, and deliberation.

Moira Warburton and  Ally J. Levine at Reuters:

The U.S. Congress is navigating yet another government funding deadline — the eighth in less than six months — and are at an impasse over sending aid to key allies in Ukraine, Taiwan and Israel. Divisions among Republicans in the House and Senate killed a major bipartisan border policy bill. Reforms to bedrock programs like Medicare and Social Security are desperately needed but no closer to getting passed. Meanwhile, the House of Representatives spent close to a month without a speaker last year due to infighting between moderate and hard right factions of the Republican party.

When U.S. Representative Chip Roy, a Republican from Texas, begged his colleagues in November to “give me one thing I can campaign on and say we did,” he was articulating what many lawmakers and observers were feeling: Congress isn’t working.

 

Since the Reagan Era Congressional legislation has fallen by 2/3rds -- not to mention its failure to pass a full, on-time budget.
MORE pic.twitter.com/XbkFmuTPsu

— Laurie Garrett (@Laurie_Garrett) March 14, 2024

And it's not just about laws and measures -- Congress is simply spending less time doing its job. And a lot more time raising $$$ and engaging in shouting hearings and name-calling speechifying.
Who is running the United States of America?
What will this look like by 2030? pic.twitter.com/7xlfeOGTML

— Laurie Garrett (@Laurie_Garrett) March 14, 2024

Dodgeball and Deliberation

Don Wolfensberger at The Hill:

There was a time, in the not-too-distant past, when House members were drilled by their leaders at the beginning of a new Congress on three unwritten party rules they were expected obey without exception. First, always vote for your party’s nominee for Speaker; second, always support your party’s package of House rules proposed at the opening of a Congress; and, third, always vote for your party’s position on special rule resolutions from the Rules Committee that set the terms of debate and amendment on major legislation. The Rules Committee was known then, at least, as “the Speaker’s committee” because it reflected the leadership’s policy priorities and procedural means of considering them.

For a small group of hard-right junior Republicans, all three of those rules were tossed out of the window as the beginning of this 118th Congress. They first balked at electing Rep. Kevin McCarthy (R-Calif.) as Speaker over the course of four days and 14 ballots until they had wrested from him certain concessions on House rules changes and processes they wanted him to adhere to.

... 

In grappling for an appropriate analogy for this new procedural game in town, I finally settled on circle dodgeball, labeled here as “procedural dodgeball.” A large circle is drawn and, in the middle a smaller circle with five or so targets (or leaders). Around the perimeter are 20 or so throwers (rebels) on marked spots who try to eliminate the players in the middle by hitting them below the waist with dodge balls. Once all the center circle targets are eliminated, they switch places with a comparable number of throwers in the inner circle until they in turn are all removed. And back and forth it goes, between special rules and the suspension bills.

Unfortunately, all the players on the inner and outer circles are of the same party. The Democrats, on the other hand, are in the stands, cheering on both sides in their game of self-elimination, while providing sufficient votes on special rules to allow the handful of rebels to prevail in defeating those rules.

It’s difficult to predict when or whether all this will end. But it is a far cry from James Madison’s ideal of a Congress in which various competing factions overcome their hostilities and finally come together to act in the public interest after extended deliberations over the nature of the problems and its solution. Deliberation today is in short supply. Performative, partisan point-making has replaced serious national lawmaking as the order of the day.

Chile and Deliberative Democracy

 

Many posts have discussed deliberation.

Nathan Gardels at Noema:

“Constitutions need general acceptance so we can turn to their rules to manage our differences,” the former left-of-center Chilean President Ricardo Lagos told me in September 2022 after the first attempt to ratify a proposed new constitution by referendum. “Only in this way — arguing within the limits of the constitution and not about it — can countries make changes within the framework of reasonable stability. In the end, what was proposed was a partisan document, which is why it failed.”

 The same could be said of the second failed attempt late last year when 55.8% of the public voted against the newest constitutional proposal. In the first case, the largely far-left and single-issue independents who dominated the final drafting of the text went too far, excluding other interests in society. In the second case, the right symmetrically mimicked their error. In both cases, the interested factions sought not so much to set out fair rules to govern political competition and constrain the use of power as to enshrine their agenda in the state’s founding document.

...

That the body politic as a whole rejected both efforts when their voices were fully heard suggests that the obstacle to ratifying a new constitution is actually the way forward: Instead of electing delegates to a Constitutional Convention or Constitutional Council, a citizens’ assembly should be selected through sortition — a random lottery, as in the ancient Greek way of democracy, to choose delegates that would comprise a conclave more indicative of the public as a whole. In consultation and collaboration with knowledgeable constitutional experts, they would deliberate clauses of the constitution from a politically disinterested perspective and submit the document to their fellow citizens.

...

The Chilean experience holds lessons for addressing the legitimacy crisis across all democracies today. In a starkly polarized environment, elections where partisans vie for power by any means necessary only deepen divisions. Particularly in an age when peer-to-peer social media fragments the public square as never before, what is needed is to bring the broader civil society, advised by non-partisan expertise, into governance through new deliberative institutions like citizens’ assemblies that foster negotiation and compromise to reach consensus.

The Dobbs Story

 Jodi Kantor and Adam Liptak at NYT:

At every stage of the Dobbs litigation, Justice Alito faced impediments: a case that initially looked inauspicious, reservations by two conservative justices and efforts by colleagues to pull off a compromise. Chief Justice John G. Roberts Jr., a conservative, along with the liberal Justice Stephen G. Breyer, worked to prevent or at least limit the outcome. Justice Breyer even considered trying to save Roe v. Wade — the 1973 ruling that established the right to abortion — by significantly eroding it.

To dismantle that decision, Justice Alito and others had to push hard, the records and interviews show. Some steps, like his apparent selective preview of the draft opinion, were time-honored ones. But in overturning Roe, the court set aside more than precedent: It tested the boundaries of how cases are decided.

Justice Ginsburg’s death hung over the process. For months, the court delayed announcing its decision to hear the case, creating the appearance of distance from her passing. The justices later allowed Mississippi to perform a bait-and-switch, widening what had been a narrower attempt to restrict abortion while she was alive into a full assault on Roe — the kind of move that has prompted dismissals of other cases.

The most glaring irregularity was the leak to Politico of Justice Alito’s draft. The identity and motive of the person who disclosed it remains unknown, but the effect of the breach is clear: It helped lock in the result, The Times found, undercutting Chief Justice Roberts and Justice Breyer’s quest to find a middle ground.

In the Dobbs case, the court “barreled over each of its normal procedural guardrails,” wrote Richard M. Re, a University of Virginia law professor and former Kavanaugh clerk on a federal appellate court, adding that “the court compromised its own deliberative process.”

AI and Deliberative Democracy

 From Helene Landemore at the International Monetary Fund:

We now have the chance to scale and improve such deliberative processes exponentially so that citizens’ voices, in all their richness and diversity, can make a difference. Taiwan Province of China exemplifies this transition.

Following the 2014 Sunflower Revolution there, which brought tech-savvy politicians to power, an online open-source platform called pol.is was introduced. This platform allows people to express elaborate opinions about any topic, from Uber regulation to COVID policies, and vote on the opinions submitted by others. It also uses these votes to map the opinion landscape, helping contributors understand which proposals would garner consensus while clearly identifying minority and dissenting opinions and even groups of lobbyists with an obvious party line. This helps people understand each other better and reduces polarization. Politicians then use the resulting information to shape public policy responses that take into account all viewpoints.

Over the past few months pol.is has evolved to integrate machine learning with some of its functions to render the experience of the platform more deliberative. Contributors to the platform can now engage with a large language model, or LLM (a type of AI), that speaks on behalf of different opinion clusters and helps individuals figure out the position of their allies, opponents, and everyone in between. This makes the experience on the platform more truly deliberative and further helps depolarization. Today, this tool is frequently used to consult with residents, engaging 12 million people, or nearly half the population.

Corporations, which face their own governance challenges, also see the potential of large-scale AI-augmented consultations. After launching its more classically technocratic Oversight Board, staffed with lawyers and experts to make decisions on content, Meta (formerly Facebook) began experimenting in 2022 with Meta Community Forums—where randomly selected groups of users from several countries could deliberate on climate content regulation. An even more ambitious effort, in December 2022, involved 6,000 users from 32 countries in 19 languages to discuss cyberbullying in the metaverse over several days. Deliberations in the Meta experiment were facilitated on a proprietary Stanford University platform by (still basic) AI, which assigned speaking times, helped the group decide on topics, and advised on when to put them aside.

For now there is no evidence that AI facilitators do a better job than humans, but that may soon change. And when it does, the AI facilitators will have the distinct advantage of being much cheaper, which matters if we are ever to scale deep deliberative processes among humans (rather than between humans and LLM impersonators, as in the Taiwanese experience) from 6,000 to millions of people.

Civic Thought and Deliberation

Many posts have discussed deliberation.

Civic Thought: A Proposal for University-Level Civic Education b Benjamin Storey & Jenna Silber Storey at the American Enterprise Institute

• There is widespread, bipartisan concern that American universities are not adequately preparing students for citizenship. The most ambitious efforts to attend to this problem to date have been undertaken by Republican-led state legislatures, which have mandated that state universities create new academic units for civic education.
• While this innovation has been undertaken to meet political needs, its success or failure will be determined by academic standards. To meet those standards, these new academic units will need to define and execute a distinctive intellectual mission.
• An intellectual mission in the fullest sense requires a coherent program of teaching and research in a specific and demanding discipline. This report sketches the outlines of such a program, which we call “Civic Thought.” As its core elements are derived from a consideration of the intellectual demands of citizenship, it may be useful to all those working toward the renewal of university-level civic education.

.In a democratic republic such as our own, citizens need to learn howto deliberate with others who have different perspectives and experiences. They need to be capable of evaluating different arguments and considering different needs as they consider the best possible course of action for the country as a whole.

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Contemporary citizens should learn to consult and evaluate different forms ofexpertise in the course of deliberating between alternative courses of action. Insofar as the citizen’s responsibility is, however, for the whole of our common life in all its complexity, political decisions cannot be derived from the counsel of any particular specialist.

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 Since citizens need to learn to deliberate together about problems that call for action, the approach of Civic Thought is best characterized by a phrase borrowed from Hannah Arendt—the “willingness to take joint responsibility” for the problems one’s country faces and the remedies that might be employed to address them. For example, while considering the national debt, scholars of Civic Thought would consider it as our problem, and they would inquire into how fiscal accountability might be restored without neglecting areas where spending is truly necessary. The willingness to take joint responsibility for the challenges facing one’s country means, in Arendt’s words, refusing to adopt a posture of “estrangement” from it, an attitude of unquenchable “dissatisfaction . . . and disgust with things as they are,” and striving rather to understand oneself as implicated, for better and worse, in the unfolding history of one’s political community

Technological Expertise and Congress

Maya Kornberg and Martha Kinsella at the Brennan Center:

Nost public attention on Congress’s struggles to legislate has focused on partisan roadblocks — the increasingly sharp ideological divisions between the two parties and anachronistic procedural hurdles such as the Senate filibuster — that make decisive action a challenge, even during periods of unified party control.

footnote8_o0lnh008 But a related driver of congressional dysfunction is lawmakers’ shrinking access to the high-quality research and data and nonpartisan expertise needed for them to comprehend complex technical issues. In a 2016 survey, 81 percent of senior congressional staffers said that access to high-quality, nonpartisan policy expertise was “very important,” but only 24 percent were “very satisfied” with the resources available.footnote9_ydajgm09

Congress has many in-house subject matter experts. Each member has personal staff, and each committee has staff from each party. Legislators are also assisted by a number of support agencies, including the Library of Congress and the Congressional Research Service (CRS) housed therein, the Government Accountability Office (GAO), the Congressional Budget Office, and the Government Publishing Office. Yet staff levels in Congress and at its support agencies have atrophied substantially over the past several decades, primarily as a result of cuts Congress has made to its own budget.footnote10_i9mgmtn10

Insufficient access to and absorption of high-quality, nonpartisan science and technology resources have many adverse consequences, including the allocation of billions of dollars in funding for technologies that do not work. These deficiencies also contribute to partisan gridlock because lawmakers increasingly rely on one-sided information from external sources — including those supported, directly and indirectly, by major political donors — making it harder to find common ground about basic facts and metrics for policy solutions.footnote11_4180msp11

Whether dealing with climate change, emerging AI technology, or myriad other complex issues, Congress has a need for science and technology support that continues to grow.footnote12_nbhe49x12 And while lawmakers have often issued broad statutory directives that defer to the expertise of executive branch agencies to fill in the gaps, the Supreme Court has put limits on the policymaking authority of those agencies.footnote13_3u2oaq913 Congress itself will need to legislate with more frequency and greater detail in response to complex problems. It does not have the support it needs to fulfill this responsibility.

The Senate's Deliberative Slump

Paul Kane at WP:

Robert X. Browning, a political-science professor at Purdue University who serves as the director of archives for C-SPAN, has catalogued congressional action in a meticulous, revealing way.

At this stage of the 114th Congress, in late June 2015, the Senate had devoted more than 255 hours to debate and speeches, more than 42 percent of the time the floor was open for business. By late June 2017, about 440 hours had been dedicated to debate, more than two-thirds of all Senate action.

This year, senators have engaged in less than 60 hours of debate during the 118th Congress — less than 14 percent of their time on the floor. Conversely, the time it takes to hold votes has soared in recent years, from just 85 hours as of late June 2017 to 148 hours through the middle of this week, according to Browning.

Media and Deliberation

Many posts have discussed deliberation, argument, and the value of viewpoint diversity.

Geoffrey Baym at JSTOR Daily:

For proponents of deliberative democracy, the challenge therefore is twofold. On one hand, some have recognized the need to design deliberative processes specifically for and within the ecosystem of social media, processes structured to encourage inclusion and reasonableness. On the other, deliberation itself is a learned skill. Educators, particularly at the secondary school level, are exploring strategies of deliberative pedagogy, of requiring and in so doing teaching face-to-face discussion of polarizing political issues. The bottom line here is that democracy ultimately depends on our ability to talk with one-another, and that our media—both mass and social—could do vastly better in helping us to do so.

Consulting the Public

Kevin Kosar and John Maxwell Hamilton at RCP:

 Fixing Social Security is a straightforward arithmetic problem. Revenues need to cover the outlays. The tricky part is to decide who pays more or gets less.

To see if a mutually acceptable solution was possible, the University of Maryland’s Program for Public Consultation surveyed 2,500 Americans. These women and men received a battery of facts, figures, and policy options. And, lo, a consensus emerged that touched on both the revenue side of the equation and the outlay side.

Strong majorities favored lifting the level of income subject to Social Security taxes, which is currently capped at $160,200. They also favored lifting the payroll tax rate from 6.2 to 6.5 percent. John and Jane Q. Public also thought benefits should be trimmed a little by raising the retirement age from 67 to 68 years.

These solutions would keep Social Security solvent for 75 more years.

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It is one thing to inveigh against the other side of the aisle, and quite another for individuals on the fringes to argue excluding the great mass of Americans from the political process.

One way to organize such an approach is for legislators to partner with nonpartisan research outfits like Professor Kull’s or Ohio State University’s Connecting to Congress initiative. They can convene cross-sections of Americans to deliberate with members about public problems. These meetings would not be anarchic public townhalls that, as often happens, feature cranks shouting nonsense. Nor would they be like the typical congressional hearings, which are adversarial proceedings that encourage acrimony and showboating. These panels would have legislators and citizens having a structured conversation to better understand a public problem and to come up with solutions.