Everyday Politics Blog

More Evidence on the Palin Effect

By Scott Lemieux

Last year, I discussed some political science research indicating that, contrary to past findings that vice presidential candidates have little effect on electoral outcomes, John McCain's selection of Sarah Palin actually had a significant (and, as it happens, negative) effect on his campaign. A new paper by Roy Ellis, D. Sunshine Hillygus, and Norman Nie also found using a different methodology that Palin's selection had an unusually significant effect on outcome of the 2008 election:

In this paper, we leverage a 10-wave election panel to examine the relative and dynamic effects of voter evaluations of Bush, Palin, Biden, McCain, and Obama in the 2008 presidential election. We show that the effects of these political figures on vote choice evolves through the campaign, with the predictive effects of President Bush declining after the nominees are known, and the effects of the candidates (and Palin), increasing towards Election Day. In evaluating the relative effects of these political figures on individual-level changes in vote choice during the fall campaign, we also find that evaluations of the candidates and Sarah Palin dwarf that of President Bush. Our results suggest a Bayesian model of voter decision making in which retrospective evaluations of the previous administration might provide a starting point for assessing the candidates, but prospective evaluations based on information learned during the campaign helps voters to update their candidate preference. Finally, we estimate the “Palin effect,” based on individual-level changes in favorability towards the vice-presidential nominee, and conclude that her campaign performance cost McCain just under 2% of the final vote share.

The paper's other conclusions -- which suggest that the 2008 candidates had a larger effect on the outcome of the election than much past research has indicated -- is also worth reading. If Palin did have a negative effect, this is worth keeping in mind should she be the 2012 Republican nominee. It is also important, however, to remember that unless her effect as a presidential candidate was much larger Palin is definitely capable of winning a presidential election in the right circumstances. It is unusual for a presidential election to be decided by 2 points or fewer, so even relatively large candidate effects are usually swamped by more fundamental factors (such as the state of the economy.) It is also possible that some of Palin's negative impact as a presidential candidate, if it exists, could be mitigated by a greater ability to motivate the Republican base.

What Does the Public Want In A Justice?

By Scott Lemieux

It has become common for pundits to bemoan the lack of substantive content in the answers given by nominees to the Supreme Court at their confirmation hearings.   Indeed, the extent to which nominees have perfected the art of making sure the hearings yield little useful information about their judicial philosophies once provoked the current nominee to criticize the process (criticisms she has revoked now that she is a nominee herself.)   

Why have the hearings become so bland?   Although the broadly worded clauses of the Constitution that generate the most controversy permit multiple reasonable interpretations, and hence allow a lot of judicial discretion, the central theme of contemporary hearings is that Supreme Court justices simply apply the law (or, in current Chief Justice John Roberts's words, act as a "neutral umpire.")   The assumption of nominees must be that -- whatever the truth -- the public will not accept the idea that a judge's values may affect their decisionmaking, even if most legal observers are well aware that "the law" in itself cannot determine how judges will choose among multiple interpretations.

According to John Sides, however, the extent to which the public is unwilling to accept a more complex view of judicial decision-making is actually highly questionable.   Whatever assumptions are made by pundits, the public largely accepts the idea that empathy might inform judicial decision-making:

The Washington Post tells me that in today’s hearing, Elana Kagan “sidesteps empathy question, says ‘it’s law all the way down,’” which leads the reporter, Paul Kane, to say “So much for the empathy standard.”

I know some people who will be disappointed. The American people. About 68% of them, to be precise. That is the percentage who said in a 2009 survey that it was “very important” for Supreme Court justices to “be able to empathize with ordinary people – that is, to be able understand how the law hurts or helps the people.” Only one other quality out of a list of 12 — “Uphold the values of those who wrote the U.S. constitution long ago” — was judged very important by more respondents (74%). Only 8% of the sample said that empathy was not important at all. Empathy also attracted the support of both parties: 77% of Democrats and 61% of Republicans said that it was very important.

It is understandable, following the defeat of Robert Bork, that nominees have become risk-averse when it comes to making controversial statements.    But this data suggests that they may have more leeway than current practice suggests.   

The President and Executive Power

By Scott Lemieux

Some court observers who might generally be considered allies of President Obama have expressed concerns about the solicitude for executive power shown by Obama's second Supreme Court nominee, Elena Kagan.    There is at least some evidence for claims that, while Kagan is unlikely to support the strongest claims of executive power advanced by the Bush administration, she is likely to give a much wider berth to the executive branch than many liberals and libertarians would prefer.

Beyond Kagan's (very thin) record of views on the subject, there is a more general reason for suspecting that Kagan might disappoint some supporters of the President on executive power.   The punchline to the article I discussed in my last post is that the intersection of law and politics can be expected to lead to judges who are deferential to claims of executive power, especially during wartime.  According to Graber, from a standpoint of judicial behavior, the process might be expected to look like this:

• "Judge Strategy," whose overriding concern is insulating the Supreme Court from political pressures than might undermine judicial power in the long run, can be expected to favor executive power in most circumstances.    There are some exceptions -- as two landmark Supreme Court opinions have demonstrated, when the president and/or the war the president supports are relatively unpopular, the Supreme Court has shown some willingness to constrain the power of the executive branch.   Still, there is generally a "rally effect" on public opinion during times of war, and as result strategically-minded judges are likely to tread with extreme caution in evaluating claims of executive power during wartime.    
• "Judge Attitude," who decides cases based on her policy preferences.  In theory, this judge would favor controversial claims of executive power half the time, but as Graber notes in practice "attitudinal" judges are likely to favor executive assertions of power much more frequently.   The president, after all, does the nominating, and is likely to "screen" for justices who will be sympathetic to future assertions of executive power.   The effect is likely to be heightened during wartime, or during "reconstructive" administrations in which the president is trying to expand his political authority.    
• As a result, as precedents build, "Judge Legal" -- who prefers not to innovate and is likely to follow precedents unless they clash with very strongly held preferences -- is also likely to support assertions executive power.   A majority of relevant precedents will compel deference to judicial power, and even cases in which the Supreme Court rejects particular claims of executive power generally leave significant leeway for future courts to approve different assertions.

If this argument is right, then neither Obama's priorities nor Kagan's relative sympathy towards executive power can be considered a surprise.   Rather, her nomination (for better or worse) is part of a long-standing trend.

The Difficulty of Separating Law and Politics

By Scott Lemieux

To follow up on my recent post about judicial decision-making, the upcoming Supreme Court hearings are likely to involve the candidate arguing that there is a splendid isolation between "law" and "politics" on the Supreme Court.   Political scientists (and some law professors) have marshaled considerable evidence that such a separation does not describe Supreme Court decision-making very well.   On the other hand, claims that policy preferences can explain most of what Supreme Court justices decide can also be overly simplistic.   

One case that seems to illustrate the limitations of the "attitudinal" model is Ex Parte McCardle, an 1869 case concerning the constitutionality of martial law in the South during Reconstruction.   The Court held that it did not have jurisdiction to hear a habeas corpus appeal from a newspaper editor who had been detained without charges.   The case presents an obvious challenge to the attitudinal model, because private correspondence and future decisions strongly indicate that a majority of the Court in fact believed that martial law in the post-CIvil War South was unconstitutional.    Many scholars have argued that the case provides an excellent example of the strategic model -- that is, the Court subordinated its policy preferences in order to preserve its own authority.   The Court, as the legal scholars Barry Friedman and Jeffrey Rosen put it, "bowed to Congress’s action, recognizing another fight it could not win."

As an interesting recent paper by Mark Graber argues, however, McCardle is actually an example of a case that can be explained very well by the legal model.   As Friedman and Rosen also note, the Court in 1869 was simply applying its own clear precedents.   Several cases had unambiguously established that federal courts only had jurisdiction to hear cases if they were granted this jurisdiction by Congress.   It's possible to explain McCardle, therefore, by arguing that justices will tend to subordinate their political views in cases where the law is relatively clear.

As Graber notes, however, this doesn't mean that strategy played no role in the Court's decision.   First, the Court can overrule its own precedents, and one can argue that in a more favorable political climate it might have done so.    In addition, the precedents that seemed to compel the result in McCardle quite clearly did represent strategic retreats by a Supreme Court under extreme pressure from the Jeffersonian Republicans.   The lesson is not that either "law" or "strategy" or "policy attitudes" can explain the outcome in McCardle, but that there is always a complex relationship between these factors.   As Graber puts it, "claims about whether justices were influenced by a legal strategy inevitably encompass contestable claims about good law and efficacious strategy."    

The Beverage Tax

by Laura McKenna

One of the many proposed policies aimed at reducing obesity is a beverage tax. New York State has proposed a one cent tax on sugary drinks.

In Diane Sawyer's documentary of Appalachia, she has a long discussion of how the huge consumption of Mountain Dew in that area results in horrible tooth decay by age 30. 

There's a 7/11 about 50 yards from my son's middle school. After school, hundreds of kids load up on Slurpies everyday on their way home. A good number of them drink Slurpies for breakfast before school as well. 

Jane Brody from the New York Times reports, "In the last half-century, consumption of sugars by the average American has increased by more than 24 pounds a year, expanding waistlines and crowding out more nutritious foods." She discusses the latest research on the problems with soda.

Coca Cola and their lobbying group, the American Beverage Association, are actively fighting the beverage tax. They've been running commercials about how this is going to cost working families more money and how they're putting in better options into the soda machines at schools.

Supporters say that a beverage tax is no different than the tax on cigarettes, which has helped reduce smoking. It can raise billions of dollars that can be used for good programs. If the tax money that is raised goes directly to the communities that consume these beverages, then it's not a poor tax, like the lottery.

They argue that a one cent tax alone isn't going to change consumption habits and probably won't make anyone thinner, but it will raise some good money and help raise awareness that soda shouldn't be an everyday habit.

Other ideas include pressuring fast food restaurants to not make soda the default drink in combo specials, removing soda machines from schools, and giving children the same anti-soda messages in health class at school, similar to anti-smoking messages that they already receive.

Where do you stand on this issue? Do believe that soda is a harmless beverage that is American as baseball and hotdogs and that it is wrong to impose a tax on it? Would this tax impose an unfair burden on families? Should government be discouraging the consumption of soda given the well documented health risks? Are sugary drinks the new cigarette?

The Politics of Public Health

by Laura McKenna

Thanks to Michelle Obama and Jamie Oliver, everybody is talking about obese children and what government can be doing differently. Fatty school lunches, the need for exercise programs, the possibility of a soda tax, and the creation of food awareness classes are all on the table The discussion has gone beyond fat kids to talking about fat adults.

Even as the discussion of the obesity epidemic has picked up, KFC has introduced a new sandwich, the Double Down -- two Original Recipe fillets, Swiss and pepper jack cheese, Colonel sauce, and bacon. Still, it may not be as horrible for you as other fast food sandwiches. Nate Silver runs the numbers.

Libertarians are generally suspicious of all public policy, because they reject the notion that government can make a positive impact on people's lives. The less government, the better. When government gets involved in people's lives, the outcome is usually expensive and results in unexpected outcomes. Welfare creates dependency, for example.

Libertarians especially hate governmental programs that push people to change their behavior regarding their health. For all but a radical fringe, they accept mandatory vaccinations for kids, but they aren't enthusiastic about other programs, which restrict a person's individual freedom to kill himself. I have a Big Mac, and I'm going to eat it. Efforts to reduce smoking and the availability to fast food is beyond the scope of government. They say that when government wades into these matters, it becomes a "nanny state" and adults should be able to make their own decisions about the Big Mac v. Tofu.

Liberals, on the other hand, say that obesity is expensive. Obesity-related diseases cost the public billions of dollars in healthcare costs. People don't really have the choice of a Big Mac v. Tofu, because tofu isn't available to most people and they don't know how to cook it. The Big Mac is cheaper than a good salad. The current system is rigged to make the Big Mac the most popular option and that isn't fair. Let's give people some real choices and, thus, increase their freedoms.

Liberals also say that children can't make the same choices as adults. They need guidance. If the parents and the community can't provide them with better options, then government must step in to help out. It's immoral to allow this generation of children to fill themselves up on Slurpies and candy bars. They believe that government can do better.

Which side do you agree with, the liberals or the libertarians? Do you think that government can create laws to make us healthier? Do you believe that laws governing our behavior are an infringement on our liberties?

Will The Supreme Court Strike Down Parts of the Affordable Care Act? Potential Lessons From Political Science

By Scott Lemieux

The passage of health care reform has led to a considerable amount of speculation about whether the Supreme Court might strike down parts of the legislation.   The most plausible constitutional arguments surround the mandate that people who do not have insurance from another source purchase a policy through regulated exchanges.    How likely is it that the Supreme Court would strike down the centerpiece of the Obama administration's first-term agenda?

Some political scientists have developed models that attempt to explain and predict judicial decision-making.   To oversimplify, there are three major potential explanatory models.    The legal model predicts that judges are primarily motivated by a desire to reach the best outcomes as required by the law.   The attitudinal model predicts that judges are primarily motivated by policy outcomes.   The strategic model also assumes that judges are motivated by policy outcomes, but that to achieve desirable outcomes they will have to make compromises with other judges and also have to consider the possibility of retaliation from other branches.   (A completely sincere opinion that cannot attract the votes of any other justices does little to advance a justice's policy preferences, and an interpretation of a law that Congress overrules also fails to entrench the Court's preferences into law.)

What models might be applicable here, and what do they suggest about the likely outcome?

• It is very difficult for models to capture the ways in which the law affects judicial behavior.   Attitudinalists are quite persuasive that when it comes to Supreme Court votes on the merits, ideology is a good predictor of outcomes.   As the disagreement among legal scholars in the linked post above indicates, the Constitutional text does not settle the issues in this case; reasonable people can disagree about how the constitutional provisions apply.  However, this is not to say that the law is completely irrelevant.   Judges do show a certain reluctance to innovate, and  decision striking down the mandate would be at least somewhat inconsistent with recent precedent.    Since Supreme Court justices can overrule (or disgregard) their own precedents, past cases do not guarantee any future outcome, but they do make some arguments easier to make than others.   
• Although I have certain objections to the attitudinal model, as mentioned above I agree that it works quite well when applied to votes on cases that are ultimately decided by the Sureme Court. In terms of predicting the outcome of a challenge to the ACA, however, this means less than it might appear at first glance.    The model, first of all, says nothing about whether the Court will take the case in the first place.   In addition, in order to succeed a challenge to the law would almost certainly need the vote of Anthony Kennedy, whose record on federalism cases is somewhat mixed and unpredictable.    In a recent landamark federalism case, both Kennedy and his more conservative colleague Antonin Scalia joined the Court's four liberals to uphold the power of the federal government to enforce federal drug laws even if the behavior in question was legal under state law.   Chief Justice John Roberts and Samuel Alito are strong judicial conservatives, but do not yet have an extensive record on these questions.    Apart from Justice Thomas, past decisions do not strongly indicate that any justice would vote to strike down the mandate, but nor would they rule it out entirely.
• Strategic thinking by the judges may work against a decision in two respects.   First, striking down part of such important legislation may invite a political backlash on the part of Congress.   And, second, if the justices are considering policy outcomes striking down the mandate could perversely lead to a more liberal health care policy ultimately being enacted.   On the other hand, the Court does not always act strategically in the sense of avoiding political opposition, and by the time the Court heard a challenge the political context may well be more favorable to conservatives.        

On balance, political science models of judicial behavior would tend to suggest that the Supreme Court striking down the health care mandate is unlikely -- but not necessarily impossible.