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Feb 7 • 5 tweets • 2 min read
The tremendous—practically unreviewable—power exercised by our judiciary is unique among rich democracies. Kathy Thelen (@thelenkathleen1) and I suggest that comparatively distinctive features of US courts are best understood as structurally conservative: lpeproject.org/blog/the-role-…
"While the process for enacting legislation requires multiple successive moments of consensus from different actors, there are v few practical constraints limiting what 5 determined justices can do on a court of 9 that acts w the powers of review that ours has assumed for itself"
"Indeed, courts may represent something of a one-way ratchet in many areas: well-positioned to preemptively halt or retroactively unwind a health care coverage expansion or redistributive tax change, but.. unavailable as avenues for achieving such policies in the first instance."
So "we might best understand our judiciary not simply as *compositionally* conservative, at particular moments, but rather—due to its aggrandized role in our political process and comparatively distinctive features of its.. design—*structurally* conservative, as an institution."
PS: Please welcome Kathy Thelen to twitter at @thelenkathleen1 — it’s been so wonderful learning from her and getting to work together on this essay. Give her a follow!

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More from @bd_highsmith

Brian Highsmith Profile picture
Feb 5
This is a great essay; loved this line, in particular: “In the US as currently constituted, the state is the form best suited to maintain, at the local level, the dominance of the suburban+rural over the urban, and, at the national level, the dominance of geography over people.”
“It is not just that conservatives in power are guiding us toward some form of government the political scientists call ‘managed democracy’ or ‘competitive authoritarianism’; it is that they have basically already implemented it at the state level in various places.”
a lot here that’s resonant with themes in @dsfarbman work on “Redemption Localism”, as previewed here: sloglaw.org/post/the-new-r…
Read 4 tweets
Brian Highsmith Profile picture
Dec 28, 2021
Student debt replaces progressive taxation—a consequence of our choice to commodify higher ed, rather than providing it as collective good. An example of how “user-funded structures privatize social risks while shielding wealth from productive public use.” nytimes.com/2021/06/23/opi…
I use the word "replace" intentionally: as Andreas Wiedemann recently summarized, “A growing body of work associates higher debt levels with limited welfare states, suggesting that the former can substitute for the latter.” Student debt is but one example. onlinelibrary.wiley.com/doi/abs/10.111…
Similar dynamics are seen in local contexts: "Even where the state avoids [obligations], the charges it imposes in their place will tend to become debt at the individual level, as poor families who lack means to make immediate payment then turn to credit." lpeproject.org/blog/the-bondh…
Read 4 tweets
Brian Highsmith Profile picture
Oct 10, 2021
As noted, personal wealth is *never* comprehensively reported to our government—apart from programs supporting people experiencing poverty or disability. The resulting invisibility of high-end wealth has wide consequences for our public discourse and policy design (quick thread).
The invisibility of wealth means: when we attempt to "target" public programs by economic circumstance (as through means-testing)—or generally, when we measure/discuss economic inequality—we look only at the FLOW of current-year income rather than the STOCK of accumulated wealth.
Why does this matter? To be sure, incomes are relevant for certain comparisons—but they're sharply limited in what they can tell us about people's economic circumstances, absent information about wealth (which, again, is generally collected only from those with the LEAST of it).
Read 17 tweets
Brian Highsmith Profile picture
Aug 20, 2021
can't stop thinking about the concept, developed under int'l law and also adopted by social movements around the world, of “odious debt”—ie, that certain obligations should not bind the current population, as result of the undemocratic nature of the initial borrowing arrangement.
specifically, the parallels btw 1) ongoing obligations on a public that accompany various forms of public debt and 2) our obligations to the many antidemocratic features of our institutions, all designed at a time when most of the polity was formally excluded from participation.
(if this paper doesn't already exist please no one write it in the next year or so, ty ty)
Read 5 tweets
Brian Highsmith Profile picture
Jun 29, 2021
"Quite simply, law is haunted by race, even when it doesn’t realize it. Allow me to go a step further. Much of our comfort with inequality generally—in terms of gender, class, wellbeing—is buttressed by our history of comfort with racial inequality.” papers.ssrn.com/sol3/papers.cf…
"And in this moment when the country is undergoing a racial reckoning, when law schools have pledged to look inward and become anti-racist and truly inclusive, it makes sense to begin with acknowledging how law schools continue to function as white spaces."
"In short, the end goal of this essay is to imagine the law school no longer as a white space (in terms of demographics, or what is taught, or how it is taught), but as a *white space* (as in a blank page, at once empty and full of possibilities)."
Read 4 tweets
Brian Highsmith Profile picture
Nov 10, 2020
This case is not over until it's over—and journalists should stop proclaiming certainty about future events that are not certain. In NFIB, Roberts (infamously) changed his vote months after oral arguments in response to public pressure. The comments are notable—but it's not over.
For more on Roberts' flip see pages 957-60 in my article: ssrn.com/abstract=31929…

I'm not just being cynical. I've written fairly extensively about the politics of the ACA cases—urging folks to take this challenge seriously from the beginning.

This is not over until it is over.
If Kav *votes* that the mandate is severable, I agree that’s the end of this. I don’t think they’ll resolve it on standing; I'd guess they strike the mandate (which is insane) but sever it, as hinted. But that is not certain right now, and won't be until the opinion is announced.
Read 6 tweets

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