Earlier today, the Mets beat the St. Louis Cardinals 4-1, finishing off a victory over the defending league champions in a four-game series, 3-1. The win improved their record for the young season to 12 wins, 10 losses. They're tied with the Washington Nationals, the consensus pick to win the division, for second place in the National League East. So far, they look... pretty good.
And yet, so far they look absolutely terrible. Including today's game, Fangraphs pegs the Mets' batters at 1.0 Wins Above Replacement on the year, 28th in baseball, ahead of only the Diamondbacks and the 220-losses-in-the-past-two-seasons Astros. Mets pitchers, meanwhile, they have at 0.6 WAR, 27th in the league, ahead of the D-Backs, the Pirates, and the Reds. Admittedly they think the pitching has been a little bit better by runs allowed rather than by fielding-independent pitching, at 1.4 WAR, 21st in baseball. But still, at best the team has been terrible on offense and bad at pitching. To put it another way, the offense is sporting a .218/.296/.316 batting line, "good" for a .276 wOBA (which is terrible for a middle infielder) and a 76 wRC+, way below league average. The pitching, meanwhile, has an ERA- of 110, a FIP- of 112, and an xFIP- of 104. That's 24 points below average on offense, and something between 4 and 12 points below average on pitching. That's a terrible team. It's not a team that's two games over .500 and looking, just on the basis of wins and losses, like a possible Cinderella contender.
Thursday, April 24, 2014
Sunday, April 20, 2014
The Sacrifice Fly is Ridiculous
In the bottom of the first inning of today's Mets game, Eric Young, Jr. led off with what should have been an easy fly-out to left field but was instead missed by Justin Upton, putting Young on second base. Curtis Granderson hit a fly ball to deep right field, which was caught but which advanced Young to third. The Braves played the infield back, and David Wright hit a ground ball to second base. Because he was playing back, Dan Uggla had no chance to get Young at home, so instead he threw Wright out at first while the run came in. It was pretty obvious that Wright did more or less what he was trying to do. He wouldn't have minded doing more, but he just wanted to make sure that, since the Braves were giving him a run if he could just hit the ball on the ground, he got the job done. He walked back to the dugout not really feeling like he had failed. Nevertheless, the play lowered his batting average. (In fairness, he did then
get four hits the rest of the game, so it's not like his batting average
is really hurting for it right now.)
In the bottom of the 14th inning of the same game, with the score tied at 3, Kirk Nieuwenhuis led off with a walk. Ruben Tejada then hit a successful sacrifice bunt to advance Kirk to second base, prompting the Braves to take the curious step of walking Eric Young, Jr., who's struck out in every single game he's played this whole season, to pitch to Curtis Granderson, he of multiple 40-home run seasons in his past. That tells you how much Granderson has been struggling. It didn't really work out for Atlanta, though; their pitcher, Gus Schlosser, uncorked a wild pitch almost immediately, moving the runners to second and third with one out, meaning that Curtis only needed a fly ball to win the game. He got it, hitting it just deep enough to left field that, given Nieuwenhuis's speed, the winning run scored before Upton's strong throw had even reached home play. It was again obvious that this was exactly what Granderson had been trying to do, since, y'know, it would win the game, whereas if he struck out, or hit the ball on the ground to one of the drawn-in infielders, the Braves would have a chance to get out of it. Accordingly, this play did not lower his batting average, registering instead as a sacrifice fly. After all, it wouldn't be right to punish Granderson statistically for succeeding, right?
You can see the contrast I'm trying to set up here. Apparently a sacrifice fly hasn't counted as an at-bat since 1893, but the sac fly as a statistical category in its own right has only existed intermittently since then. It had a couple of brief runs prior to World War Two, but was finally instituted for good in 1954, and it's typically only since then that sites like Baseball-Reference give the SF stat. The theory behind it is that, in the sorts of situations in which a player can score on a fly ball, the batter is quite likely trying to hit a medium-deep fly ball, rather than trying to do anything more, even though they'll be out on the play. Except... isn't a batter also "trying," in exactly the same sense, to hit a weak ground ball to get a run in when the defense is conceding that run? Of course, it's arguable to consider that "trying," unlike with your average sacrifice bunt attempt, but I don't think it's much more or less arguable than the logic behind the sacrifice fly.
I'm not sure what I think should be done about this. Discontinue the sacrifice fly? That would feel very strange, if nothing else, since it's been around for the entire lives of most baseball fans. Decide that an RBI ground-out won't count as an at-bat either? That would perhaps be equally weird. Decide that on-base percentage, which has never exempted batters from the out made on a sac fly (though it does exclude sacrifice bunts, sensibly), is more important anyway? Yeah, that's probably the one. But since today's Mets game featured both ends of this disparity so prominently, I just wanted to point it out.
In the bottom of the 14th inning of the same game, with the score tied at 3, Kirk Nieuwenhuis led off with a walk. Ruben Tejada then hit a successful sacrifice bunt to advance Kirk to second base, prompting the Braves to take the curious step of walking Eric Young, Jr., who's struck out in every single game he's played this whole season, to pitch to Curtis Granderson, he of multiple 40-home run seasons in his past. That tells you how much Granderson has been struggling. It didn't really work out for Atlanta, though; their pitcher, Gus Schlosser, uncorked a wild pitch almost immediately, moving the runners to second and third with one out, meaning that Curtis only needed a fly ball to win the game. He got it, hitting it just deep enough to left field that, given Nieuwenhuis's speed, the winning run scored before Upton's strong throw had even reached home play. It was again obvious that this was exactly what Granderson had been trying to do, since, y'know, it would win the game, whereas if he struck out, or hit the ball on the ground to one of the drawn-in infielders, the Braves would have a chance to get out of it. Accordingly, this play did not lower his batting average, registering instead as a sacrifice fly. After all, it wouldn't be right to punish Granderson statistically for succeeding, right?
You can see the contrast I'm trying to set up here. Apparently a sacrifice fly hasn't counted as an at-bat since 1893, but the sac fly as a statistical category in its own right has only existed intermittently since then. It had a couple of brief runs prior to World War Two, but was finally instituted for good in 1954, and it's typically only since then that sites like Baseball-Reference give the SF stat. The theory behind it is that, in the sorts of situations in which a player can score on a fly ball, the batter is quite likely trying to hit a medium-deep fly ball, rather than trying to do anything more, even though they'll be out on the play. Except... isn't a batter also "trying," in exactly the same sense, to hit a weak ground ball to get a run in when the defense is conceding that run? Of course, it's arguable to consider that "trying," unlike with your average sacrifice bunt attempt, but I don't think it's much more or less arguable than the logic behind the sacrifice fly.
I'm not sure what I think should be done about this. Discontinue the sacrifice fly? That would feel very strange, if nothing else, since it's been around for the entire lives of most baseball fans. Decide that an RBI ground-out won't count as an at-bat either? That would perhaps be equally weird. Decide that on-base percentage, which has never exempted batters from the out made on a sac fly (though it does exclude sacrifice bunts, sensibly), is more important anyway? Yeah, that's probably the one. But since today's Mets game featured both ends of this disparity so prominently, I just wanted to point it out.
Saturday, April 19, 2014
Someone Needs to Brush Up on Their MLK
This is kind of random, but I was just reading the Vox.com "cards" explaining the whole Nevada rancher controversy/standoff/thing and I saw that some Tea Party types have attempted to label the efforts of one Cliven Bundy to keep the federal government from seizing cattle he's been illegally grazing on federal lands for many years "civil disobedience." If you accept the basic premise that the federal government is wholly illegitimate, I guess that could almost make sense. Except there's a wee problem: it completely ignores everything political philosophers have worked out about the theory of civil disobedience. Because, see, there's a reason we have laws, and there's a reason you'd like to think that people have a moral obligation to follow laws, even if they think those laws are wrong. Everyone just acting according to their own view of what the law should be, rather than what the law is, would be, well, anarchy, or something very nearly resembling it. And yet it seems fairly obvious that, in the extreme case, one cannot be under an obligation to follow a truly unjust law. Reconciling the two requires limits on the manner of civil disobedience, as well as limits on when it is appropriate. To my mind the best single expression of the theory of civil disobedience comes, not surprisingly, from Martin Luther King, in his Letter from a Birmingham Jail. And perhaps the best passage from that majestic tract is this:
Of course, no one is bound to accept MLK's words as binding authority as to the limits of civil disobedience But you don't even need to bother reading Letter from a Birmingham Jail to realize that, of course, the single most defining characteristic of civil disobedience is that it be civil, i.e. nonviolent. What's happening in Arizona is described as an armed stand-off. That is, perforce and in and of itself with no possible counterargument, enough to defeat a claim to legitimate civil disobedience. If Bundy's actions are to be justified, they are to be justified as revolution, nothing more or less. It is quite possible to have a regime so unjust that violent revolution is eminently justified (see South Africa, circa 1948-1994), and of course there's been a disquietingly prominent proto-revolutionary strain in Tea Party politics. But there should be no confusion over what's going on here. Civil disobedience it ain't. Domestic terrorism it is, even if it's the justified kind, like that of Nelson Mandela against the apartheid government.
But, y'know, it isn't. It's just an idiot with some guns looking to get a whole lot of people killed for really no reason whatsoever. What a hero.
In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.The point is to break the law, and get arrested and punished for it. That's the whole point. Civil disobedience would be if Bundy had grazed his cattle on federal lands, gone around saying he thought federal ownership of those lands was illegitimate, and then let them confiscate his cattle and raised an almighty stink about it, attempting to rally public opinion. Any claim to immunity from punishment for one's act of disobedience is inconsistent with the theory Dr. King lays out.
Of course, no one is bound to accept MLK's words as binding authority as to the limits of civil disobedience But you don't even need to bother reading Letter from a Birmingham Jail to realize that, of course, the single most defining characteristic of civil disobedience is that it be civil, i.e. nonviolent. What's happening in Arizona is described as an armed stand-off. That is, perforce and in and of itself with no possible counterargument, enough to defeat a claim to legitimate civil disobedience. If Bundy's actions are to be justified, they are to be justified as revolution, nothing more or less. It is quite possible to have a regime so unjust that violent revolution is eminently justified (see South Africa, circa 1948-1994), and of course there's been a disquietingly prominent proto-revolutionary strain in Tea Party politics. But there should be no confusion over what's going on here. Civil disobedience it ain't. Domestic terrorism it is, even if it's the justified kind, like that of Nelson Mandela against the apartheid government.
But, y'know, it isn't. It's just an idiot with some guns looking to get a whole lot of people killed for really no reason whatsoever. What a hero.
Thursday, April 17, 2014
Why the Left has Criticized the New Data Journalism
Jonathan Chait has an excellent column arguing that the "data journalism" currently in vogue at sites like Vox.com, the new FiveThirtyEight, and some new site the New York Times is shortly going to open up is in fact an ideological/partisan endeavor, because commitment to empiricism as the basis for public policy is an ideological issue. It is, roughly speaking, the foundation of the original progressive movement of approximately a century ago, and it continues in the progressive movement of today. Now, it shouldn't be a partisan issue, because it seems kind of, y'know, obvious that we should base our public policy in an accurate understanding of what the world is like, but it is. This fact became blindingly obvious during the Bush Administration, with the whole "reality-based community" line and all. The modern conservative party is deeply against government use of empiricism to guide its decision-making. I might argue, analogously to how I did in this post, that this disregard for facts is another consequence of the Republican Party's commitment to an agenda which is deeply, deeply unpopular; in order to promote policies which will achieve their actual agenda without revealing what that agenda is, they need to get people to stop focusing so much on the empirical issues about the causal mechanisms. But one way or another, Chait is right: data journalism is inherently a left-wing enterprise in today's world.
This, however, leaves open a question: why has there been a substantial amount of criticism from the left, too? From, say, Paul Krugman, most famously, in his brief feud with Nate Silver over the new FiveThirtyEight. One reason is the oft-mentioned "hack gap": conservative pundits are a lot more hackish than liberal ones, and therefore one can expect them to toe the party line much better. But another, I think, is that data journalism really, really, really wants to pretend that Chait isn't right, or at least that they don't know Chait is right. The ideals of empiricism and neutrality are very deeply tied to each other in our society. If one party's ideas systemically fail all empirical testing, well, there's a limit to how much you can do about that, but you certainly, certainly can't let yourself act on the presumption that, because the Republicans have a long history of anti-empiricism, their ideas will continue to be empirically wrong going forward. So a data journalist like Nate Silver or Ezra Klein is going to have to try to frame what their doing as being completely non-partisan and non-ideological.
This, in turn, is aggravating for someone like Krugman, who occupies a position from which he can and does observe just how deeply anti-empirical the Republican Party has become. That fact is an incredibly important one about American politics, and forms a very high item on the indictment of the Republicans as being unfit to govern. It is also deeply underappreciated by the American public. To those of us within the partisan struggle, it feels remiss of anyone ever to miss an opportunity to point it out. And I think this probably explains a lot of the backlash to Vox and FiveThirtyEight. Even if all their actual analysis is completely sound, and therefore comes repeatedly to the conclusion that Republicans are wrong yet again, they feel compelled to at least pay lip service to the kind of Very Serious People-ish ideas Krugman rightly despises about how no party has a monopoly on the truth, blah blah blah. So what Krugman objects to isn't mainly the content of their analysis, although of course the whole global warming controversy at 538 was substantive. It's about the framing.
I don't say this to take a stand on whether the data journalists' framing decisions were correct; I can see the arguments both ways. If it really does enhance their credibility, and if they use that credibility to accurately portray the facts (which will reliably be detrimental to Republicans), then it would seem like a good idea. Merely an observation that I think this is what's going on, rather than (by and large) an actual substantive disagreement.
This, however, leaves open a question: why has there been a substantial amount of criticism from the left, too? From, say, Paul Krugman, most famously, in his brief feud with Nate Silver over the new FiveThirtyEight. One reason is the oft-mentioned "hack gap": conservative pundits are a lot more hackish than liberal ones, and therefore one can expect them to toe the party line much better. But another, I think, is that data journalism really, really, really wants to pretend that Chait isn't right, or at least that they don't know Chait is right. The ideals of empiricism and neutrality are very deeply tied to each other in our society. If one party's ideas systemically fail all empirical testing, well, there's a limit to how much you can do about that, but you certainly, certainly can't let yourself act on the presumption that, because the Republicans have a long history of anti-empiricism, their ideas will continue to be empirically wrong going forward. So a data journalist like Nate Silver or Ezra Klein is going to have to try to frame what their doing as being completely non-partisan and non-ideological.
This, in turn, is aggravating for someone like Krugman, who occupies a position from which he can and does observe just how deeply anti-empirical the Republican Party has become. That fact is an incredibly important one about American politics, and forms a very high item on the indictment of the Republicans as being unfit to govern. It is also deeply underappreciated by the American public. To those of us within the partisan struggle, it feels remiss of anyone ever to miss an opportunity to point it out. And I think this probably explains a lot of the backlash to Vox and FiveThirtyEight. Even if all their actual analysis is completely sound, and therefore comes repeatedly to the conclusion that Republicans are wrong yet again, they feel compelled to at least pay lip service to the kind of Very Serious People-ish ideas Krugman rightly despises about how no party has a monopoly on the truth, blah blah blah. So what Krugman objects to isn't mainly the content of their analysis, although of course the whole global warming controversy at 538 was substantive. It's about the framing.
I don't say this to take a stand on whether the data journalists' framing decisions were correct; I can see the arguments both ways. If it really does enhance their credibility, and if they use that credibility to accurately portray the facts (which will reliably be detrimental to Republicans), then it would seem like a good idea. Merely an observation that I think this is what's going on, rather than (by and large) an actual substantive disagreement.
Wednesday, April 16, 2014
Why Rising Female Income Might Make Marriage Rates Go Down
Phyllis Schlafly has apparently not yet had her fill of saying really stupidly anti-feminist things. She's at it again, arguing that this whole "pay gap" thing between men and women is some combination of not really that big a deal and a good thing. Here's a nice solid debunking of her claims from the new Vox.com. But as a feminist man, I just had one point I wanted to add that Vox's thoroughly empirical work didn't really capture.
Schlafly suggests that men prefer to be the higher earner in a couple, while women prefer to have their (male) partner be the higher earner. This, she argues, would mean that in a world without a gender pay gap, half of all women would be unable to find a suitable husband. Now, that's some damn shoddy internal logic, for one thing. If the income distributions for men and women were identical, you could just line up all the men and line up all the women from highest-earning on down, and then have Man #1 marry Woman #2, Man #2 marry Woman #3, etc., and the only people left without a potential mate would be the highest-earning woman and the lowest-earning man. That is, obviously, absurd, but it's just such a glaring logical flaw in Schlafly's "argument" that I couldn't resist pointing it out.
But my main point is different. The Vox piece notes that Schlafly seems to be somewhat correct that a lower wage gap seems to correlate with less enthusiasm for getting married early and often. But I daresay there's an alternate causal mechanism for this phenomenon that has nothing to do with the innate preference of both sides for the man to be the breadwinner. Basically, it seems to me that an awful lot of men don't really seem to go out of their way to be, y'know, kind or decent toward women, much at all. An awful lot of guys are at least somewhat, y'know, rapey. There's an unfortunately large segment of masculinity that really does seem to regard women as existing for the sole purpose of the convenience and pleasure of men. To put it bluntly, that whole complex of attitudes is probably not very attractive to the majority of women. To put it even more bluntly, you'd expect that the kind of guy who's open to essentially coercing a woman into being with him would also, therefore, need to use coercion to get a woman to be with him, at least in any sort of long-term capacity. Not necessarily coercion through physical violence or chemical incapacitation, though of course both of those are disgustingly prevalent.
No, coercion can be a lot subtler than that. And for a lot of human history, including up until pretty recently and still to a large extent today, the coercion guys have used to get laid is economic in nature. Men are the breadwinners, and if women want to share in the fruits of their labors, well, they need to marry one of them. And here we see what I would imagine explains most of this apparent statistical connection between the wage gap and marriage rates. The more women are able to be economically independent, the less reason they have to even consider getting with a man who is--aside from his bank account--totally unappealing. If they find a guy who is appealing, in ways beyond the financial, then they'll still be interested in him, and maybe even in marrying him, naturally enough. But because being single is a less desperate situation, because your lack of a good romantic partner is not compounded by a serious impediment to your ability to live a life of decent material comfort, there's just a lot less reason to settle for a guy who isn't willing to be basically decent to you (and then some).
If this is right, of course, there should be a long-term correction coming. That is to say, if broader trends in society make women a lot less desperate to find a guy, any guy, just someone to take care of them, men will have a much stronger set of incentives telling them to shape up. Hopefully, therefore, female economic empowerment would over time lead to a more enlightened set of behavioral norms among men. Give it long enough and some formerly oafish men might discover that it's not so bad being nice to women. They might actually discover that, hey, a lot of women are actually really cool people once you get to know them, and stop just trying to screw them by any means necessary. And if that happened, then marriage rates would presumably come back up. And, I daresay, divorce rates would be substantially lower at the end of this process than at the beginning, because more people would be getting together, and married, for the right reasons.
So where Phyllis Schlafly sees the end of civilization, I see the potential for a feedback loop that could make civilization a lot better. That's the hope, anyway.
Schlafly suggests that men prefer to be the higher earner in a couple, while women prefer to have their (male) partner be the higher earner. This, she argues, would mean that in a world without a gender pay gap, half of all women would be unable to find a suitable husband. Now, that's some damn shoddy internal logic, for one thing. If the income distributions for men and women were identical, you could just line up all the men and line up all the women from highest-earning on down, and then have Man #1 marry Woman #2, Man #2 marry Woman #3, etc., and the only people left without a potential mate would be the highest-earning woman and the lowest-earning man. That is, obviously, absurd, but it's just such a glaring logical flaw in Schlafly's "argument" that I couldn't resist pointing it out.
But my main point is different. The Vox piece notes that Schlafly seems to be somewhat correct that a lower wage gap seems to correlate with less enthusiasm for getting married early and often. But I daresay there's an alternate causal mechanism for this phenomenon that has nothing to do with the innate preference of both sides for the man to be the breadwinner. Basically, it seems to me that an awful lot of men don't really seem to go out of their way to be, y'know, kind or decent toward women, much at all. An awful lot of guys are at least somewhat, y'know, rapey. There's an unfortunately large segment of masculinity that really does seem to regard women as existing for the sole purpose of the convenience and pleasure of men. To put it bluntly, that whole complex of attitudes is probably not very attractive to the majority of women. To put it even more bluntly, you'd expect that the kind of guy who's open to essentially coercing a woman into being with him would also, therefore, need to use coercion to get a woman to be with him, at least in any sort of long-term capacity. Not necessarily coercion through physical violence or chemical incapacitation, though of course both of those are disgustingly prevalent.
No, coercion can be a lot subtler than that. And for a lot of human history, including up until pretty recently and still to a large extent today, the coercion guys have used to get laid is economic in nature. Men are the breadwinners, and if women want to share in the fruits of their labors, well, they need to marry one of them. And here we see what I would imagine explains most of this apparent statistical connection between the wage gap and marriage rates. The more women are able to be economically independent, the less reason they have to even consider getting with a man who is--aside from his bank account--totally unappealing. If they find a guy who is appealing, in ways beyond the financial, then they'll still be interested in him, and maybe even in marrying him, naturally enough. But because being single is a less desperate situation, because your lack of a good romantic partner is not compounded by a serious impediment to your ability to live a life of decent material comfort, there's just a lot less reason to settle for a guy who isn't willing to be basically decent to you (and then some).
If this is right, of course, there should be a long-term correction coming. That is to say, if broader trends in society make women a lot less desperate to find a guy, any guy, just someone to take care of them, men will have a much stronger set of incentives telling them to shape up. Hopefully, therefore, female economic empowerment would over time lead to a more enlightened set of behavioral norms among men. Give it long enough and some formerly oafish men might discover that it's not so bad being nice to women. They might actually discover that, hey, a lot of women are actually really cool people once you get to know them, and stop just trying to screw them by any means necessary. And if that happened, then marriage rates would presumably come back up. And, I daresay, divorce rates would be substantially lower at the end of this process than at the beginning, because more people would be getting together, and married, for the right reasons.
So where Phyllis Schlafly sees the end of civilization, I see the potential for a feedback loop that could make civilization a lot better. That's the hope, anyway.
Sunday, April 6, 2014
"Super-Precedents" Are NOT About Stare Decisis
Continuing on the same stare decisis theme from my last couple of posts, I just had the following thought. There's this phrase that gets thrown around from time to time, "super-precedent." The implication of calling a certain case a super-precedent is that the burden for overruling it becomes especially, perhaps impossibly, high; the way it's discussed, it's like the principles of stare decisis apply with extra force to certain cases. I think that's wrong. Stare decisis, recall, is very explicitly about following old cases even if you think they might be wrong. It is all very well and good to say we have a system of precedent, in the sense that we reason from prior cases when we have no reason to doubt that the holdings of those cases were correct. It is a very different thing to say that precedent is actually binding solely because it is precedent, i.e. that a wrongly-decided case may rightly compel a future court to reach that same result in a later case, and that is what the doctrine of stare decisis concerns.
But, as my last post suggested, it's ridiculous to fashion some theory of "super-precedents" out of this. A super-precedent is, almost by definition, a landmark constitutional case. Those are exactly the kind of cases where the old line that, sometimes at least, it is more important that a matter be settled than that it be settled correctly is least true. Errors in constitutional jurisprudence cannot be corrected except through formal amendment or, y'know, through having the Court reverse its precedents. And the landmark cases are, of course, the biggest and most important, the ones where the impact of a wrong decision will be the greatest. To talk of these landmark constitutional cases as "super-precedents" which should not be overruled no matter how much we might be certain that they are wrong as a matter of law is ridiculous. The reason why it's important that we reaffirm Brown v. Board of Education is that it's right, not that it's a "super-precedent."
But of course, it is a super-precedent. Really it's the super-precedent, the only one pretty much everyone can agree on giving that appellation and the one to which all other nominees for the status are compared. And I think the title does have some meaning with respect to Brown, but, importantly, it is a meaning which is completely distinct from the doctrine of stare decisis. Roughly put, a super-precedent is a decision which is so clearly right and whose rightness is so important that we should consider ourselves justified in disqualifying, for just about any relevant purpose, anyone who believes that it is wrong. The super-precedential effect is not really the legal effect of a binding precedent; it is rather a cultural effect. A super-precedent is a landmark decision around which there exists such consensus that we do not need to seriously consider some new claim that it is wrong, because we know it isn't wrong. Brown is a paradigmatic example; though it was deeply controversial at the time, both in society at large and in the legal academy, it's a really simple case, and it's completely obvious that, as a matter of blackest-letter constitutional law, the outcome is correct.
That's an important concept within political culture, and one can have reasonable debate over which cases should be given that treatment, if any. But clearly no stare decisis considerations are involved in a court's decision to reaffirm such a case. In many ways it's the precise opposite phenomenon.
But, as my last post suggested, it's ridiculous to fashion some theory of "super-precedents" out of this. A super-precedent is, almost by definition, a landmark constitutional case. Those are exactly the kind of cases where the old line that, sometimes at least, it is more important that a matter be settled than that it be settled correctly is least true. Errors in constitutional jurisprudence cannot be corrected except through formal amendment or, y'know, through having the Court reverse its precedents. And the landmark cases are, of course, the biggest and most important, the ones where the impact of a wrong decision will be the greatest. To talk of these landmark constitutional cases as "super-precedents" which should not be overruled no matter how much we might be certain that they are wrong as a matter of law is ridiculous. The reason why it's important that we reaffirm Brown v. Board of Education is that it's right, not that it's a "super-precedent."
But of course, it is a super-precedent. Really it's the super-precedent, the only one pretty much everyone can agree on giving that appellation and the one to which all other nominees for the status are compared. And I think the title does have some meaning with respect to Brown, but, importantly, it is a meaning which is completely distinct from the doctrine of stare decisis. Roughly put, a super-precedent is a decision which is so clearly right and whose rightness is so important that we should consider ourselves justified in disqualifying, for just about any relevant purpose, anyone who believes that it is wrong. The super-precedential effect is not really the legal effect of a binding precedent; it is rather a cultural effect. A super-precedent is a landmark decision around which there exists such consensus that we do not need to seriously consider some new claim that it is wrong, because we know it isn't wrong. Brown is a paradigmatic example; though it was deeply controversial at the time, both in society at large and in the legal academy, it's a really simple case, and it's completely obvious that, as a matter of blackest-letter constitutional law, the outcome is correct.
That's an important concept within political culture, and one can have reasonable debate over which cases should be given that treatment, if any. But clearly no stare decisis considerations are involved in a court's decision to reaffirm such a case. In many ways it's the precise opposite phenomenon.
Planned Parenthood v. Casey Says Some Weird Stuff About Stare Decisis
I am, obviously, a fan of the result in Planned Parenthood v. Casey, at least insofar as the "result" is "we're not overturning Roe v. Wade." (And, the result is precisely that, pretty damn far; the details are relatively inconsequential.) But I'm a fan of the result because I'm a fan of the result in Roe itself. Lots of people aren't, of course, and you get the sense that Kennedy, at the very least, and probably also O'Connor are among them. They, of course, are two of the three co-authors of the plurality opinion in the case, along with Souter. And that plurality opinion is not mainly remembered for its discussion of the constitutional law of abortion, because, well, it doesn't really discuss that all that much, no doubt because a majority of those writing it didn't necessarily agree on the merits with the reasoning of Roe. So instead they talked about stare decisis. And boy do they say some weird stuff.
Oh Good
I've written before that it's important to me that Plessy v. Ferguson be considered, not just to be wrong, but always to have been wrong. To have been wrong the day it was decided. Well, I was encouraged to see the following line in a Supreme Court opinion I was just reading for class:
Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.
Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.
I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.
"...we think Plessy was wrong the day it was decided..."Yes! The Supreme Court agrees with me!
Okay, technically that wasn't a majority opinion, it was a plurality opinion. Specifically it's the plurality in Planned Parenthood v. Casey, in the section discussing stare decisis. They (it's Souter, Kennedy, and O'Connor, though one suspects that Souter, perhaps the world's biggest fan of stare decisis, wrote that section) discuss why the overruling of Plessy in Brown v. Board of Education was consistent with the theory they used to justify upholding Roe v. Wade, despite certain reservations as to its soundness. The word at the beginning of the sentence, which I didn't include above, was "while," and what follows is a version of the way people justify Brown in light of the "changing times" or whatever: however plausible they may or may not have been in 1896, the purported factual underpinnings of Plessy (that segregation was not a "badge of inferiority," etc.) were absurd by 1954, and this therefore justified reversing the case.
Still, I doubt that Souter, Kennedy, and O'Connor would say something like that if it weren't pretty much the consensus on the Court. And my sense is that the Supreme Court usually thinks of itself, when overturning a precedent, as explicitly repudiating the older case, declaring that its reasoning was faulty from the beginning. That, I think, is as it should be; though of course there will be times when genuinely changed circumstances command a different result over time, this will be rare compared to the times when a new majority simply recognizes that the old majority got it wrong. This is likely to be especially true in the constitutional context, where, in theory, the underlying law isn't changing except by Amendment. Well, that depends on whose theory, I guess; Bruce Ackerman would disagree with me in no uncertain terms there, which is after all the point of my whole "do you think Plessy was wrong when decided?" inquisition.
I'll close with a return to the reasons why I find theories, like Ackerman's, that seem to suggest that Plessy was right for its time or whatever truly offensive rather than just wrong as an intellectual matter. If Plessy was not wrong the day it was decided, then it's not quite right to say that the Equal Protection Clause of the United States Constitution forbids racial apartheid, because obviously if it prohibits racial apartheid then Plessy could never, ever have been even a little bit right. And so I find it more than a little comforting to see the Court, even a plurality of the Court, stating explicitly that Plessy was always wrong. That simple statement commits the Court, the guardian and expositor of our Constitution, to the view that it's not just some contextual happenstance that we don't allow racial segregation. It's a matter of eternal and unchanging principle.
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