The US Supreme Court as a Referee

According to Lexington in The Economist this week, chief justice John Roberts has been pushing the US Supreme Court to embrace modesty (instead of judicial activism), legal minimalism (deciding issues on narrow  grounds), predictability (rule-following decision making), and consensus (in the court’s decisions). In itself this sounds like a dream change for anyone versed into public choice economics and constitutional political economy. Nobody really knows how to control the growth of the state and to make government focus on what it can do best. The recent evolution of the court may offer some solution.

One reason why it is so difficult to control government activity is because the (still) dominant model of government in most parts of the world is that of a player. If we use the analogy of sports, the government is still seen as a potential quarterback or forward. And in this view, the role of the economist is to be a savior in the service of the state. Pete Boettke and Chris Coyne have explained these roles in a matrix (see paper here) where the state has the choice of being either a player or a referee, and the economist can choose to be a student or a savior. The stable positions are the N-W and S-E quadrants. The dominant 20th century view has been that of the state as a player and the economist as a savior (S-E quadrant).

In this context, remember that chief justice Roberts used, in his confirmation hearings, the metaphor of a baseball umpire: “Nobody ever went to a ballgame to see the umpire… It’s my job to call balls and strikes and not to pitch or bat.” Clearly John Roberts sees the role of the US Supreme Court (and that of its members) as a referee, not a player.

If so, then the highest institution in the US is slowly moving in the direction of only interpretating the law (rather than the more active role it took in the progressive era). It is a very important sign, a slow move towards a position emphasizing the “original intentions” of the US Constitution. This move is important not because judicial conservatism is good for its own sake, but because it is one of the best ways to force the state back into its role as a referee—thereby limiting (and reversing) its growth. With more economists today who see their role as humble students of society and more lawyers who understand the limit of judicial activism, the US may slowly be moving from the S-E quadrant towards the N-W one. If chief justice Roberts (following the lead of chief justice Rehnquist) continues to make his court act more like a referee than a player, the current US Supreme Court may turn out to be the greatest thing that the world has seen in decades.

Comments

[Protagoras]

What's so great about narrowly following precedent when that precedent is rotten to the core? Since 1937, the Court has sytematically eviscerated key provisions of the Constitution,(e.g., the Commerce and Takings Clauses). So it's hard to be encouraged by anyone who wants to continually reaffirm that grant of carte blanche. Roberts' approach is about as useful as the farmer who slams the barn door shut long after the cow has escaped.

[Gavin Kennedy]

Protogoras may have missed the point.

I humbly suggest he or she click on the paper (PDF) by Pete Boettke and Chris Coyne and see what Frederic Sautet is on about.

I did and I appreciated the points they make and the concepts of the Player v Referee and Student v Saviour.

Great thinking, which I shall comment on Friday in my blog.

[Protagoras]

Gavin,

I read the paper, which I found quite good. Agreed: the state ought to function as a referee-student, rather than a player-savior. Yet I wonder how this touches my point, which had more to do with the role of the Court.

A large body of Supreme Court decisions has already granted player-savior status to the state. Any narrow adherence to those precedents is still an adherence, which will further entrench the gains won by Progressives over the past century.

Rather than applaud an approach that gives continued blessing to the player-savior model, we might consider a stronger principled activism, as advocated by Randy Barnett and others.

[Gavin Kennedy]

Protogoras

I see the point that you are making; the application of the Boettke-Coyne in your mind is inappropriate, or not a good one.

Possibly not, as the role of economists in the paper was about development; the US Supreme Court is about justice, albeit it crucial to economies, but in a highly developed economy.

I am impressed with the potential application of the Boettke-Coyne model in a wider context. Being Scottish I am less familiar with the operational roles of the US Supreme Court.