The Bob Zadek Show

Join David A. Kaplan in conversation on his book, *The Most Dangerous

Branch*

“If you have five votes here, you can do anything,” — Justice William J. Brennan Jr.

During the Kavanaugh hearings, pundits and journalists mused whether the circus around his nomination hearings might be leading to a crisis of legitimacy on the Supreme Court.

Notably, these musings mostly came from the left and those who opposed Kavanaugh ideologically. Their very utterance was an instance of further politicizing and de-legitimizing of the judicial branch. The Supreme Court was intended by the founders to remain “above the fray.” But the political tit-for-tat around increasingly divisive confirmation hearings is just the tip of the iceberg of a legitimacy crisis that has been brewing for much longer.

David Kaplan’s new book, The Most Dangerous Branch, is a deep dive into the history and personalities that have turned the Supreme Court into the hyper-politicized and self-aggrandizing institution it is today. He takes readers into the heart of the “Marble Palace,” where the nine black-robed justices have sat enthroned since 1935, deciding some of the most controversial issues in American life.

How did we get to a place where nine individuals hold so much power — where Supreme Court Justices are viewed as demigods?

Against the narrative of “Supreme Court as Jedi High Council” comes Kaplan’s revealing and occasionally unflattering portrait of the Trump Court.

The Supreme Court is not and ought not be our only hope, he says.

The book provides a fascinating glimpse into the personalities and egos of judges — both those who have ultimately been confirmed and those whose enthusiasm and jockeying for a nomination ended up disqualifying them. It’s a sobering reminder that the justices on the Supreme Court are not deities, but merely lawyers — and humans at that.

Judicial Restraint for Thee, but Not For Me
I’ve argued that the more that power is concentrated in a few hands, the more vicious politics battles become, since the public feels powerless.

Congress was supposed to make the laws, and the courts were supposed to interpret them. The difference is subtle, and the idea of “judicial restraint versus judicial activism” has come to characterize the debate. An activist judiciary overrides Congress’s will in interpreting laws so as to nullify or contradict them. A restrained judiciary leaves laws on the books unless they egregiously violate the Constitution.

Justice Gorsuch made a case for judicial restraint back in 2005 in a National Review article titled “Liberals’N’Lawsuits,” which pointed out the danger of letting the courts decide key social issues.

But Kaplan thinks Gorsuch is a hypocrite:

“[W]hy did Gorsuch see this as a liberal phenomenon? His piece mentioned “liberals” eight times and “conservatives” not once. Weren’t conservatives likewise “addicted to the courtroom,” “relying on judges and lawyers” to try to overturn legislative “compromises” that had been reached by “elected leaders” on such tempestuous matters as voting rights and gun control?”

On the other side, Reason Magazine’s Damon Root and others in the “libertarian legal movement” have actually made the case for an activist judiciary that overrules government overreach into the lives of individuals.

Perhaps there is an underlying principle behind the application of one standard over another, but based on the increasing number of 5–4 decisions along partisan lines, it appears that the standard often flips to suit the political proclivities of the majority on the bench.

Kaplan says this has a corrosive effect on the Republic. It enfeebles Congress and emboldens the Supreme Court to the point of arrogance. The judiciary can be added to the list that includes the administrative agencies of those who enable Congressional laziness.

Sleeping Giant
Alexander Hamilton expected the judiciary to be the “least dangerous branch,” possessing neither the power of the sword (like the executive) nor the purse (like Congress), but merely judgment. That judgment, however, has turned out to be a powerful force.

Kaplan finds the roots of an overinflated judicial branch in one of the earliest Supreme Court judgments — Marbury v. Madison — enshrining judicial review, i.e., the ability of the courts to declare laws unconstitutional. He reminds us that this power appears nowhere in the Constitution before tracing its expanding scope through the 1800s and the Lochner era — in which the Court upheld economic liberties over-and-against regulations passed by state legislatures — to the formal discovery of the right of substantive due process.

Kaplan notes that we have to distinguish between our personal views on an issue and the rightfulness of the court deciding to overrule a majority in the legislature.

In declaring abortion to be a “fundamental right” under the Constitution, for example, the Supreme Court solidified its usurpation of the legislative function and short-circuited the public debate playing out in legislatures.

Later, the right would get its “revenge” in a series of cases beginning with Bush v. Gore — decided along strictly partisan lines. In that case, it was liberals advocating judicial restraint and conservatives “trampling the independence of states.”

Kaplan believes that one’s opinion of a Supreme Court decision should be based on more than whether you agree or disagree with the outcome of the case. He has done us all a service by documenting the arbitrary nature of many decisions the court makes, and the danger it poses to a balance of powers.

Soon, the Supreme Court will be issuing a decision in a case about partisan gerrymandering. The question before them is whether unfair district lines infringe a fundamental, by making many votes count less than they otherwise would.

Kaplan joined me for the full hour to discuss this an other upcoming Supreme Court cases through the lens of his book and the humans (all too human) who make up the “Trump Court.”

Is judicial activism really just whatever the other guy does? Find out, on the show of ideas, not attitude:

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Is the Fed a threat to the booming economy? How can Trumponomics be made

more sustainable? David Henderson joins the show to discuss.

Back in October, Bob spent an hour with Stephen Moore – former president of the Club for Growth, and author of *Trumponomics.* Moore is a supply-side economist, meaning he thinks that many tax cuts pay for themselves in the long run. He and Bob talked about why the drop in the corporate income tax from 35% to 20% was good news for average Americans, and Bob asked “Why not drop it even lower?” Arthur Laffer, Moore’s co-author on Trumponomics, is famous for the Laffer curve, which counterintuitively holds that you can raise even more revenue by lowering taxes, since that creates higher growth and more incentives to produce wealth, which means a bigger tax base.

Trump he has consulted Moore on a number of his key economic policies — including, thankfully, free trade. Moore has pushed Trump to remove tariffs, and for the time being we seem to be angling in that direction. Now, President Trump has nominated Moore to the Federal Reserve Board, which many take as a sign that of the on-going politicization of the central bank. Moore wrote an oped in the Wall Street Journal which called the Fed a “threat to growth,” and by some measures it does look like the recent tightening is going beyond what’s necessary to keep inflation in line.

Professor Emeritus David Henderson of the Naval Postgraduate School in Monterey, California joined the show’s producer, Charlie Deist, to give an update on how “Trumponomics” is playing out in the economy, and to analyze whether the growth we have seen under Trump’s presidency is sustainable. They also discuss whether Moore is a suitable candidate for the Federal Reserve Board, or whether his pro-growth, free-market optimism would be better utilized in a different position.

Lastly, David and Charlie talk about the unusual proposition of a “strategic default,” by the U.S. Federal Government, which would let taxpayers off the hook and leave bondholders holding the bag for the risk they took in trusting such an undisciplined spender.

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Michael Tanner’s *The Inclusive Economy* is about giving the poor control

over their own lives

A few weeks ago, Elizabeth Nolan Brown explained how the War on Sex Workers is making the problems usually associated with prostitution worse. I noted that it seems like a rule that whenever government declares war on something, bad things happen.

The War on Poverty has been no exception. In the 1960s, Lyndon Johnson sought prevent and even cure poverty, much like Nixon unsuccessfully sought to cure cancer. Some 60 years later, the poor are still with us and bad policies alleviate poverty effectively trap them there.

The Cato Institute’s Michael Tanner has written the definitive book on a libertarian anti-poverty policy. The Inclusive Economy: How to Bring Wealth to America’s Poor is both readable yet scholarly. It plots the history of welfare from the Middle Ages to the present, and shows how the current system arose from two conflicting outlooks about why poverty exists. Both liberals and conservatives have missed the mark in their diagnosis and, more importantly, their cure for poverty.

Free markets and exponential growth have lifted millions of Americans out of poverty, but government continues to create artificial barriers that keep people stuck on the lower rungs of the economic ladder. We can start by pointing out the harmful effects of minimum wages, occupational licensing and the like, but it goes much beyond this.

A Short Lesson in Marginal Tax Rates
Rule #1 for thinking clearly about welfare is that incentives matter. Rule #2 is that we have to think at the margin. In other words, we have to ask what the incentives are for a person at the poverty line to earn or save an additional dollar? Since many benefits are conditional on low income or a scarcity of savings, the poor are faced with the devil’s dilemma of either bettering themselves and losing their free benefits, or remaining economically secure wards of the state.

The marginal tax rate for people just above the poverty rate is 34%, meaning 1/3 of every additional dollar earned goes to the government. That puts them in a higher bracket than those earning more than $250,000 a year.

Stopping the Blame Game
Tanner notes that while conservatives are likely to blame the poor for a lack of personal responsibility — citing a “culture of poverty” as the reason for their poverty — liberals tend to focus too much on structural issues. While both cultural and structural causes are real, they are also hard to disentangle. Debating which factor predominates is usually done to assign blame to some group to score political points. Both sides share a paternalistic attitude that uses poverty as an excuse to limit freedom of choice, and neither side acknowledges what actually works to alleviate poverty.

Like a good doctor, Tanner’s approach is to “first do no harm.” From poverty traps, to dismal public schools, to incarceration for victimless crimes, the government already does a great deal to guarantee the existence of an entrenched lower class.

Tanner’s book points to five specific areas where we can help the poor by enhancing freedom and helping people become captains of their own fate. Hear what these areas are, on the show of ideas, not attitude.

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Congress has been delegating its constitutional authority to the executive

branch.

Separating Facts from Hysteria on Sex Trafficking

It seems like an ironclad law that whenever government declares war on an illicit activity, the problem gets worse. Elizabeth Nolan Brown is an award-winning journalist and Reason editor who writes about how hysteria around human trafficking has created a “War on Sex Workers” to complement the failed Wars on Drugs, Poverty, and Terror. The co-founder of Feminists for Liberty, she belongs to the wave of feminism that believes women are capable of freely choosing to engage in the world’s oldest occupation, and should be permitted to do so without harassment.

Before clutching your pearls, put on your Bastiat-hat for a moment and consider the unseen effects of criminalizing prostitution. Where it is illegal, women who would otherwise voluntarily become sex workers face the possibility of being abused by their clients with no recourse to law enforcement. Meanwhile, those who are being trafficked will continue to meet an inevitable black market demand.

Bastiat says, “Train yourself to look not just at the seen, but the unseen.”

If Bastiat isn’t your cup of tea, perhaps you’ll listen to moral theologians from Augustine to Aquinas who have supported legalized prostitution. Many countries operate regulated brothels to protect workers, but in our Puritan-founded country, we often fail to distinguish between the clear crime of sex trafficking and the victimless crime of voluntary prostitution. Historically, U.S. law enforcement has conflated the two in order scare the public into supporting a ban on prostitution.

Perspective | Why laws to fight sex trafficking often backfire

Nolan Brown believes the latest hysteria spawned from Patriots’ owner Robert Kraft — if it results in tougher crackdowns on prostitutes — will harm innocent women and create an unnecessary bogeyman. She also has a message for an easily-excited media audience: Stop Letting People Lie to You About Hate Crime and Human Trafficking Spikes. The increase in reported sex trafficking cases (like hate crimes), comes from flawed data and reporting. There is no epidemic, and the hysteria is bringing more and more non-trafficked sex workers into the legal system’s dragnet.

Less hysterically, The Federalist’s David Marcus argues that “keeping government out of the bedroom” shouldn’t apply to commercial transactions. Marcus says that legalization would remove the social stigma, which in turn would make the industry more profitable, widespread, and entrenched.

But does legalized prostitution increase human traffickings? Here, a question of principle turns into an empirical puzzle over which there is some disagreement. Certainly, stark differences between jurisdictions create islands of legalization and incentives for traffickers to transport women across borders like commodities, but statistics on sex trafficking are notoriously unreliable. Advocacy groups often inflate figures to attract more money from the government, and law enforcement is rewarded for each “perp” they bring to justice. Brown has documented cases in which aggressive policing and media sensationalism have portrayed what turn out to be small, voluntary prostitution rings as major organized human-trafficking schemes.

My take: Everyone wants to pose as the Knight in Shining Armor who rescues women from being trafficked, including President Trump — who is using the issue as a talking point for his Wall. There are no perfect solutions in an unjust world, but a rational society might start by acknowledging that not all sex workers are victims. Even if you oppose prostitution, government crackdowns are no substitute for cultural change. David Marcus may have his heart in the right place, but he fails to consider how the market might regulate liaisons between consenting adults, while keeping questions of morals in the cultural arena and only questions of coercion in the hands of law enforcement.

Tune in to my conversation with Liz and let me know what you think.

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George Selgin on the Mind-Bending Methods of Modern Monetary Theory