Thread by @JeffreyASachs

According to .@benjaminwittes, we are well and truly f%&ked. Extreme partisanship has poisoned our politics and is destroying the judicial confirmation process. Judicial independence and authority will soon be lost as well.

Grim stuff, but is there hope?
theatlantic.com/politics/archi…

Yeah, probably. Partisanship got us into this mess, but it might get us out of it too. Consider: you're an interest group with strong policy preferences and $1 million to spend. Do you (a) donate to a bunch of politicians; or (b) launch a long and costly national pr campaign?

A no-brainer, right? Wrong. Look at Washington right now. What one Congress hath wrought (Bush tax cuts, Dodd-Frank, environmental regs.), the next Congress will gut. And when policy stability is nil, an interest group's incentive to donate to politicians is nil as well.

That's where courts come in. As counter-majoritarian institutions, they act as a brake on those in power and promote policy stability. And as Landes & Posner argued more than 30 years ago, that gives incumbent elites a good reason to keep them around.

researchgate.net/publication/24…

For a more formal proof, as well as the boundary conditions, see Stephenson 2003.

pdfs.semanticscholar.org/20c6/3a7121a53…

All of this is to say that while partisanship gives politicians a good reason to undermine judicial independence, it also gives them a good reason to preserve it as well. Otherwise you risk losing all that sweet, sweet Koch/Steyer money.

But wait! There's a hitch. All of this rests on the assumption that political power will reliably change hands. No turnover = no policy instability = no incentive to preserve judicial independence. That's why the road to strong courts runs through meaningful electoral reform.

I'm talking felon re-enfranchisement, a curb on gerrymandering, restoring the VRA, etc. The more that one party can entrench itself despite being a numerical minority *cough* GOP *cough*, the more likely that party will gut the courts.

And what exactly would that look like? Here's one clue.

slate.com/news-and-polit…

In other words: if you want to keep the judiciary counter-majoritarian, start by making elections majoritarian. Which (does this even need saying?) we shouldn't need any extra incentive to do.