Let's Dismiss the Case for Court-Packing

The death of the late Justice Ruth Bader Ginsburg could very well reverberate and affect our democracy for years to come. This would not be because of the Justice's death per se, but the implications of how and when to fill the vacancy. President Trump is looking to fill that seat with another conservative justice. If the Republicans are successful, that would result in a 6-3 conservative majority on the Supreme Court. It's interesting to see both sides react. The Left thinks that a conservative grip on the judicial branch would harm the country for decades. The Right thinks that the Left is acting like a bunch of sore losers and that "it's our turn to be at the helm." Since the Democrats are unlikely to block a nomination (either before or after the presidential election), they are looking at another solution: court-packing.

The term court-packing dates back to Franklin D. Roosevelt. FDR tried passing various legislative initiatives (most notably the New Deal), but the Supreme Court struck down a number of these initiatives as unconstitutional. To deal with the frustration of his vision of government largesse, he attempted to increase the size of the Supreme Court from nine justices to fifteen justices. This has rightfully been portrayed as a political ploy and a power grab to gain influence over the judicial branch. 

Since the Democrats do not want to acquiesce power to the Right, they are looking to "pull an FDR" by packing the Court if they gain a majority in the Senate. The last Judiciary Act, passed in 1869, set the number of justices at nine. The number of justices has been adjusted on more than one occasion, so it is not as if there is not any historical precedent for changing the number of justices. Constitutionally speaking, all the Democrats would need to do is pass another Judiciary Act to modify the number of justices. The question is not so much whether the Democrats could gain enough power after the 2020 elections, but rather whether they should go down this path.

For one, the Supreme Court's popularity is at an all-time high (Gallup). If the Democrats opt for court packing, the political costs for the Democrats would be high. It could help to bolster the Republican's narrative on the Supreme Court. 

But let's think of this in terms of political calculus. After all, the call for court-packing is a political process and it would be foolish to think that the call for court-packing is about restoring "good governance." To quote the late Justice Ginsburg, "If anything, it [court-packing] would make the court look partisan. It would be that--one side saying, 'When we're in power, we're going to enlarge the number of justices, so we would have more people who would vote the way we want them to." 

As the Brennan Center for Justice, which is not exactly a conservative institution, brings up, it would be dangerous to "tamper with the mechanisms of democracy to thwart a single political figure." Since the impetus for court-packing is political in nature, you better believe that if the Democrats strike the first blow, the Republicans will retaliate with even more court-packing once they regain power. Since the Court would appear more partisan as a result of court-packing, it would end up eroding the legitimacy of the judiciary branch. 

If the Supreme Court cannot be seen as or act as a check on the other two branches, that erodes separation of powers, and ultimately the constitutional republic that was envisioned by the Founding Fathers over two centuries ago. Since the Left is concerned about such causes célèbres as the right to an abortion or the right to same-sex marriage, it seems peculiar that you would undermine the very judicial protection that has held those rights in place.

To be sure, both parties feel justified in retaliating when it comes to court nominees. The Democrats feel like they were robbed when it came to nominating Merrick Garland in 2016. The Republicans feel like they have been robbed of multiple federal court nominees, including Miguel Estrada. Let's be for real. Both parties have chucked procedural decency out the window when it was politically convenient.  Partisan politics can be summarized by saying "it's okay when we do it, but not when they do it." Harry Reid created the "nuclear option" in 2013. Senator Mitch McConnell extended the "nuclear option" to Supreme Court justices in 2017. 

Even so, court-packing is a whole different animal. At least with filibustering or holding up nominees, the judicial system was held intact. If we throw the norm against court-packing out the window, we also through our capacity at judicial review out of the window. As the Left-leaning Vox illustrates, multiple political scientists have pointed out that there have been multiple examples of court-packing by would-be or eventual autocratic countries: Hungary, Honduras, Poland, Venezuela, Argentina, Turkey. 

For those who complain about Trump bringing down the country, it seems hypocritical for various anti-Trumpers to advocate for a policy that would most likely erode democratic institutions. Those on the Left might want to retaliate in response to their animus towards Trump, but if successful, it would be one of the more myopic things to come from the Left, which is saying something given a look at the economic policies so many of them cherish.

         

Should We Pay People to Take the COVID-19 Vaccine When It Is Available?

Although it seems like the worst of the pandemic is behind us, we are far from returning to a pre-pandemic normal. Half of Americans are unlikely to eat in a restaurant with 25 percent capacity. 52 percent of Americans are uncomfortable with the idea of flying on a plane. Such individuals as Bill Gates and Canadian Prime Minister Justin Trudeau have expressed a growing opinion that life will not be back to normal until there is a vaccine. In the meantime, we will be meandering through uncertainty. 

Back in June, research from the University of Chicago suggested that it was not so much the lockdowns that caused the economic contraction, but it is people are afraid to leave their homes because they could contract COVID (Goolsbee and Syverson, 2020). If fear is what is holding people back from feeling like they could spend at pre-pandemic levels, then achieving herd immunity is one of the best ways to do that. Having a vaccine would go a long way to achieving herd immunity. 

However, there is at least one major issue with betting on a vaccine to bring us back to normalcy. According to a poll from Gallup, 35 percent of Americans would not get a free COVID vaccine if available. NBC News polling found that only 44 percent would get a vaccine. If the polling data are correct, that could present a major obstacle towards herd immunity. If we cannot get people to take the vaccine for free, perhaps we should pay them to take it. Last month, Brookings Institution fellow Robert Litan made the argument that we should pay $1,000 per person to take the vaccine. A few weeks later, conservative author and Harvard professor Gregory Mankiw endorsed the idea. 

The argument for paying people to take the vaccine comes down to two economic concepts: externalities and incentives. First, what is an externality? A positive externality is when the production or consumption of a good or service results in the benefit, often of a third party. 

Positive externalities can provide both private and social benefits. Take education as an example. The private benefit is that more education typically results in higher earnings, whereas social benefits can be others learning from your knowledge or benefitting from the services or goods rendered as a result of the education acquired. When I made the case for birth control subsidies six years ago, I argued for the subsidies based on the idea that a) the subsidies would be a positive externality, and b) the cost and overall size of government would be larger if we did not subsidize.

When looking at subsidizing people to take vaccines, we have to ask ourselves the cost of the subsidies versus the cost of inaction. Yes, if we paid 75-80 percent of the population $1,000 per person to take the vaccine, that could run upwards of $300 billion. On the other hand, look at the billions of dollars that have already been spent and Congress would love to spend if they could actually agree on something. 

Let's say that we are on board with such a price tag, realizing that $300 billion is a smaller and more desirable number than another trillion-dollar-plus stimulus package. If enough people are hesitant to take the vaccine, as polling data suggest, then an underconsumption could result in not achieving herd immunity. How do we get past this apprehension? To think of it in economic terms, an incentive could be provided. An incentive is a financial reward, usually money or a prize, to make a certain choice. While it would not guarantee a behavioral change, providing financial incentive could nudge enough people in the right direction to achieve herd immunity. To put it in layman's terms, money talks. Money could talk in this case, especially if the price to get a vaccine is right.

At least in concept, the idea of paying people to take the COVID vaccine is a good idea. To play Devil's Advocate, I will question the initial premise, mainly that the COVID vaccine is a prima facie positive externality. I don't say this because I think vaccines are bad or that because I am an anti-vaxxer. Quite the contrary! I got my flu vaccine this month. More to the point, I argued in favor of an opt-out vaccine system six years ago. What I take issue with is a rushed vaccine. 

In spite of years of vaccine research, we have yet to develop a vaccine for HIV, Hepatitis C, or the common cold. We also still have not produced a coronavirus vaccine that has passed Phase III. Let's forget those facts for a moment. There is a reality that vaccines typically take several years to produce. The current record for a vaccine is four years with the mumps vaccine. Why? Even if you want to argue that technological development has improved since then, it takes time to make sure that the vaccine is effective and does not have any long-term effects in which the cure could be worse than the disease. There are also the regulatory hurdles, not to mention the coordination, time, and resources required to produce and distribute the vaccines en masse. Adar Poonawalla, who is the CEO of the world's largest vaccine manufacturer in terms of number of vaccines produced (Serum Institute), said earlier this week that we probably will not have enough vaccines for the global population until 2024.  

Even if scientists could get past enough of these hurdles, there would still need to be convincing that the process was not rushed. You do not need to be an anti-vaxxer to be concerned about the speed at which these vaccines are being produced. If there is a convincing enough argument that the vaccines are indeed safe, I would be more inclined to support such a subsidy. Until then, I will remain skeptical of the proposal.