Wednesday, October 2, 2024

How the Supreme Court can get an A+ on trust

The justices start a new term on Monday.

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Today's Agenda

Supreme Court Justices, They're Just Like Us!

The first Monday in May, as its intense and devoted fans know, is the Met Gala. An equally intense but far less fashion-forward crowd [1]  eagerly anticipates the first Monday in October. That's the beginning of the US Supreme Court's term — which means the nine justices have, like, four more days of freedom until they're stuck in their chambers for the next nine months.

I wonder, do any of them have back-to-court anxiety? In some ways the highest court in the land operates like a glorified public school: There's a summer vacation. There's homework. There are assigned seats, just like in any classroom. And of course, there's petty drama and infighting on the playground. Justice Samuel Alito's luxury fishing trip and his wife's upside-down flag still haunts him to this day.

But the justices are not schoolchildren. A fourth grader is free to go fishing for king salmon with a hedge fund billionaire any day of the week. An unbiased guardian of the Constitution should refrain from such activities, especially if the aforementioned billionaire is looking to court favor. Alito clearly never got that memo, which is why the Supreme Court adopted an ethics code last year.

Trouble is, the justices get to police themselves, and Noah Feldman says DIY-ing a trip to the principal's office is never gonna work. "Justices rarely recuse and when they do, they typically don't provide an explanation," he writes. The new term is an opportunity to change that: "The justices should, at a minimum, bend over backward to show they are in full compliance with the code — and tell the public about it." If they fail to do so, trust in the institution will continue to suffer:

"Members of both political parties now trust the court less than they did in the 1980s," Noah writes. While an eagerness to accept extravagant gifts is part of the problem, overturning longstanding precedents on abortion, concealed weapons, pollution, separation of church and state, affirmative action, regulation and presidential immunity hurts the court's credibility, too. "Trump's three appointees fundamentally changed the court's balance of power," he says, and the court's fast work has "smacked of eagerness to fulfill a long-desired conservative constitutional revolution."

The justices are well aware of this predicament, and sometimes demonstrate remorse for their partisan puppetry. In one 2022 case — New York State Rifle & Pistol Association v. Bruen — they went so far as to undermine all gun control legislation. Now, Noah says, the court looks moderate whenever it limits gun ownership, as it did in June with United States v. Rahimi. "Acting sane after previously acting crazy is one way to restore a fig leaf of legitimacy," he posits.

But they could do more to restore faith in their decision-making skills. "First, the justices could start splitting along less obvious ideological lines," Noah writes. "Second, the court could regain some legitimacy with the emergence of more moderate, centrist justices whose votes can't always be predicted in advance." And third, "the court could (and should) end its unremitting emphasis on arcane historical sources ranging from the Middle Ages to the nineteenth century as the basis for deciding real-world, real-time cases."

I, for one, think Noah's assessment is spot-on. It is absurd to cite Sir Matthew Hale, a 17th-century English barrister, as any kind of authority on women's rights, as Alito did in the Dobbs decision. I also kinda get the feeling this guy would not have been a fan of my newsletter:

Read it and weep, Sir Matthew!

Tesla RoboBurger

In eight days, Elon Musk is expected — emphasis on expected — to do his Tesla robotaxi reveal. Curiously, McDonald's is also teasing a new launch on Oct. 10. It's probably just a nothingburger — ugh, had to — but internet sleuths are having fun connecting the two:

No matter what happens, Liam Denning says the tech magnate better deliver an actual prototype, not a cybertruck covered in cheese. If Musk fails, his electric vehicle company will be in a major bind. Tesla's core business has continued to disappoint investors, and new vehicle deliveries have been flat since early 2023. "In order to hit the consensus figure for annual sales, Tesla now needs to deliver just shy of 499,000 vehicles in the final quarter, which would mean reaching a new record," he writes.

The best distraction from disappointing numbers? Self-driving vehicles, artificial intelligence and robots — all things Musk is likely to focus on next week. "How else to justify the dissonance of a stock priced at 99 times forward GAAP earnings for a company that has been essentially flatlining for almost two years," Liam says.

The Best in the Big 10?

I am pleased to report that my alma mater, Indiana University, is randomly good at football again! Like, we-might-make-it-to-the-playoffs good:

The Hoosiers have a new coach this year, and we're 5-0 for the first time since *checks notes* the Vietnam War. Back when I was in college, football was just an excuse to consume copious amounts of alcohol at Kilroy's before 10 a.m. Now, we're actually legit! I imagine it's how students and alumni at the University of Nevada Las Vegas felt a mere few weeks ago, when their school was ranked No. 23 in the country. That is, until the star player went and blew it all up.

Adam Minter says UNLV owed a lot of its success to its outstanding quarterback, Matthew Sluka. But Sluka was counting on a big payday: "According to his agent, a UNLV assistant coach had promised Sluka a $100,000 name, image and likeness payment for transferring to the school," he writes. "UNLV and the third party allegedly responsible for paying Sluka deny that any money — beyond $3,000 for an appearance this summer — was ever promised to Sluka. When the $100,000 failed to show up, the quarterback walked away from the 2024 college football season."

At first glance, this is a tale as old as time: Money corrupts the athletic department! But Adam believes it's also a "reminder that the economic rights of college athletes remain vulnerable to authorities who should be acting in their best interests." Read the whole thing.

Telltale Charts

Oil is kinda like the Paul Revere of commodities because it's rather sensitive to geopolitical risks. When the price rapidly changes, it often signals that something unusual is afoot. Yesterday's missile barrage was no exception, with futures spiking as the projectiles took off:

But "in the greater scheme of things," John Authers says, "this still isn't much to worry about." That's because other factors have have affected oil as of late: "A supply glut coupled with weak demand as the global economy emerged from the pandemic made for muted prices despite rising tensions." Javier Blas expects that dynamic to continue to the new year: "The oil market looks oversupplied in 2025, and that means lower rather than higher prices," he writes. "Only an all-out war in the Middle East can change that outlook."

Further Reading

Nike's new CEO should follow Adidas' lead by underpromising and overdelivering. — Andrea Felsted

Rising auto-loan delinquencies are flashing caution for the US economy. — Marc Rubinstein

There's an essential flaw in Labour's plan to get the long-term sick back to work. — Marcus Ashworth

The stock market is becoming a dumping ground for weak businesses. — Nir Kaissar

Populist leaders are demonstrably bad for the health of the economy. — Adrian Wooldridge

ICYMI

The aftermath in Lebanon.

A Bank of America outage is scaring customers.

It's too easy to dox with Meta's smart glasses.

Kickers

Kyla Scanlon used to sell Hyundais.

Bobbi Althoff used to sell face masks on Etsy.

Arkansas has an annual Squirrel Cook Off.

Scientists mapped an adult fruit fly brain.

Notes: Please send squirrel legs and feedback to Jessica Karl at jkarl9@bloomberg.net.

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[1] With the possible exception of the late Chief Justice William H. Rehnquist.

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