Let's say I'm agnostic on Bush v. Gore. I'd argue, on a related note, that Neal Katyal, one of Gore's lawyers, is an exceptionally dapper fellow. That I disagree with him on a whole series of issues is immaterial. Those glasses suit him, and it occurs to me that I ought to look into getting a pair myelf, if only because I am slowly, steadily going blind. As it turns out, I've needed glasses very badly since the 4th grade. My parents would insist that I wear my glasses, but I felt that they undermined my street cred—and on the mean streets, this is no laughing matter. Keep in mind that these were the days when Jaleel White sent legions of kids scurrying to the contact lens. And yet I could also profit from poor vision, in that I am a cripplingly, painfully shallow person. To see everyone I come across through a gauzy prism gives me a sunnier outlook on life; this in turn forestalls heart disease and other stress-related disorders. Mind you, this could create problems in turn. There is that Twilight Zone episode in which the man saves his son from a traffic accident by traveling back in time, only to find that the "present" of this alternate world is marred by the tyrannical rule of the very same son. Being slow-witted and thick-browed, there's little reason to believe that I'd be able to force a fascist or fascistoid political settlement on the US, despite my boundless charisma and Rasputin-like mental powers. Even so, my survival contains within it the kernel of a threat of, as they say, total intergalactic doom. Which is why the conscientious among you ought to be plying me with french fries and other fatty foods, hastening my demise.

Until relatively recently, I haven’t considered rising inequality in the US to be a particularly pressing problem; I’ve instead been concerned by the endurance of poverty abroad and, to a lesser extent, at home. My sense has been that serious inequality is an inevitable consequence of an industrial structure oriented towards innovation and entrepreneurship, and that a relatively free US economy provides massive spillover benefits for the world at large, thus making any normative discomfort arising from the overlarge pay packets of corporate executives, for example, easy to endure. Because I’m skeptical of the outsized claims made by partisans of deliberative democracy (for Posnerian reasons, mostly), I haven’t found egalitarian arguments from that angle persuasive either. While I continue to think that these presuppositions are sound, I’m far more concerned than I had been, mainly on prudential grounds.

Do you remember how the end of the Cold War ushered in a relatively halcyon moment on the international scene, with a narrow, and welcome, focus on “geoeconomic” questions? And then came the deluge. Prompted by the Los Angeles riots, the crack epidemic, and a broader sense of unease concerning demographic shifts in the composition of the population, there was a good deal of hand wringing over the state of the cities in the early 1990s—a faint echo of the real sense of crisis that existed in 1970s—but that’s passed thanks to the economic expansion, welfare reform, etc. I have an ominous sense that there will be serious domestic turmoil in the space of ten or twenty years. Admittedly, this is a safe bet in that something unanticipated is sure to go badly wrong, but I think we can faintly detect the outlines of the problem now.

The Bell Curve, written by Richard J. Herrnstein and Charles Murray, was a frontal assault on the egalitarian presumptions that defined and continue to define the terms of the debate on social policy in the US. The book was most notorious for advancing a set of very controversial propositions on race and its relation to intelligence, and for identifying “cognitive stratification” as the driving force behind rising inequality in income and wealth. By now, many of the more controversial claims in the book have been convincingly refuted. Of all the hostile reviews the book attracted, the most formidable and persuasive was written by James J. Heckman, an economist at the University of Chicago with a dispassionate style and an evident sympathy for what can be described as Murray’s classical liberalism. Rather than dismiss The Bell Curve as beyond the pale, he skillfully unraveled shaky empirical claims. It was a bravura performance.

But there’s a wrinkle. In the review, Heckman casts doubt on the authors’ dystopic vision of a future “custodial state,” which the authors describe as “a high-tech and more lavish version of the Indian reservation for some substantial minority of the nation’s population, while the rest of America tries to go about its business.” “The first dystopic vision,” Heckman writes,

relies on stronger sorting and heritability mechanisms than the authors have demonstrated actually operate in American society. Even if IQ is largely inherited, there is considerable scope for intergenerational economic mobility. The extreme pessimism of this scenario ignores the warnings issued by the authors that even among persons in the lowest ability grouping, there is still a lot of socially productive behavior. Their pessimistic vision relies on unsupported assumptions about the skill bias of future technological change and the inability of entrepreneurs--and social institutions--to efficiently utilize unskilled labor. This vision might be realized, but it reads more like a story borrowed from science fiction novels than a plausible extrapolation of existing social trends.

Heckman, to my mind, underestimates the value of science fiction. Judging by the chapter in question, “The Way We Are Headed,” the authors of The Bell Curve have a real gift for the world-building that science fiction, unburdened by serious literary aspirations, does best.

By this, I mean to suggest that the authors’ dystopic vision has resonance, and not necessarily for the reasons they themselves present. Mancur Olson argued that a stable society builds, over time, a stultifying array of interest groups that exploit their mastery of the legal-institutional order to advance narrow interests at the expense of “the general welfare.” The result is sclerosis. Elites in stable societies similarly exploit their expertise to transmit capital to future generations, including the social and cultural capital that is the main currency in a broadly meritocratic system of education and professional licensing. (I’m placing “merit” in invisible scare quotes. We’ll put that to the side.)

That the United States is not subject to large-scale social upheavals is undoubtedly a blessing; it does suggest, however, that access to the upper echelons of US society will grow increasingly difficult for those outside the charmed circle of (a) intact two-parent families that read to their children, or child; (b) members of exceptional bourgeois minorities; and (c) the rich and near-rich, groups that, to say the least, tend to overlap. You’ll notice that I place the rich and near-rich last in this list, and that was entirely deliberate. Some semblance of “social mobility” will likely be preserved as the children of cash-poor families with “middle-class values,” for want of a better time, thrive. These children, alas, belong to a small and very fortunate group.

To return to The Bell Curve, my sense is that one can reject the authors’ presumptions concerning ability and its heritability, the sources of rising inequality, and much else while embracing something like their very pessimistic take on the likely consequences of pursuing status quo social policies. Consider the following passage:

We fear that a new kind of conservatism is becoming the dominant ideology of the affluent—not in the social tradition of an Edmund Burke or in the economic tradition of an Adam Smith but “conservatism” along Latin American lines, where to be conservative has often meant doing whatever is necessary to preserve the mansions on the hills from the slums below.

This parallels the very different argument Michael Lind made shortly thereafter (in 1995):

Workers are not threatening to man the barricades against capitalists, but society is divided into mutually hostile camps: cities against suburbs, Northeast against Sunbelt, black against white. Particularly disturbing is the growing division along class lines--between a white overclass and an increasingly redundant and insecure working class in constant fear of tumbling into the underclass. It's not so much the Balkanization as the Brazilianization of America, characterized by the increasing withdrawal of the white overclass into its own barricaded nation-within-a-nation, a world of private neighborhoods, private schools, private police and even private roads, walled off from the spreading squalor beyond. The goal of a new nationalism today is to forestall these looming divisions in American society.

This breathless account will strike many of us as overdrawn, certainly as a characterization of the present, and Lind’s remedies—protectionism, large-scale economic redistribution, dramatically altering the US constitutional order—are alternately counterproductive or unrealistic, if always provocative and interesting.

But this “secession of the successful” is not a fantasy. Tiebout choice has its charms, and I’m the last person to call for the squelching of local governments (quite the opposite). And yet it’s disturbing to think of affluent exurban communities, each one part of what Roberto Unger (another insightful loon) has called “the global confederation of productive vanguards,” thriving in peaceful, manicured surroundings while those in the rearguard are mired in soul-deadening jobs and soul-deadening landscapes. An adventurous minority among the vanguard lives among the rearguard along the frontier of gentrification, shuttling from one sealed artificial environment to another via automobile, bicycle, or, very rarely, public transportation until the natives are displaced and the neighborhood in question becomes an open-air theme park for cosmopolitans.

There’s a simple rejoinder to this. Andrew Hacker presented it in the New York Review of Books in June. Rather than fret over the role of assortative mating in exacerbating social inequality, Hacker wrote the following:

While some notable matches produce gifted children, most children of the very successful fall short of their parents' eminence. This is yet another illustration of what statisticians call "regression to the mean." Indeed, it is the basis of an open society: as less able descendants go down the ladder, they are passed by new talents on the way up. And even apart from genetics, youngsters raised in second-generation comfort are less apt to put in the kind of effort their parents had to display.

He cites a study by Thomas Hertz which studied children raised in the top quintile—only 37.4 percent of said children remained in the top quintile at adults, which suggests that class-churning still does the job. This could be right, but I’m skeptical. Bhashkar Mazumder and David Levine have found that sibling correlation in income has gone from 0.26 to 0.45, and that “family and community influences shared by siblings have become increasingly important in determining economic outcomes.” Mazumder, in an earlier paper, found that there is significantly higher intergenerational elasticity of income than had previously been believed, thus suggesting that ours is an increasingly rigid society.

There is a “bright spot” in all of this. According to Thomas Hertz, “much of the currently-measurable intergenerational persistence of poverty in the United States is due to the significantly higher rate of persistence among poor African-American as opposed to poor white households.” This is a “bright spot” only in the sense that the sources of persistence among poor black Americans can be attributed to uniquely difficult historical circumstances—or so the theory goes. But what if the main driver of this phenomenon is the disproportionately large share of single-parent families among black Americans? If that’s the case, the dramatic rise in single-parent families among whites and Latinos, the bulk of the population, is cause for alarm.

Man, I’m just thinking out loud. I will return to this subject.

One more thing to add to my comments on precision below:

The article says: "[Kennedy's] inner office was filled with the trappings of power-- an elaborate chandelier and a carpet with a giant red star..."

Now, I have had the good fortune to see Justice Kennedy's carpet somewhat recently, and I did not see this giant star. (I recall instead a red carpet with gold stars on it.)

I am open to the possibility that 1) my recollection is incorrect or that 2) the carpet has been changed in the intervening years. Those who would like to weigh in (on- or off-the-record) are invited to.

Trivial? Yes. But precision about little and little-known facts gives one confidence.

UPDATE: Indeed. here is Justice Kennedy's carpet (with Justice Kennedy included), as of the summer of 2002, just as I remembered it. I haven't yet found a 2000 picture.

I've just finished the Vanity Fair article I mention/link to below. It's interesting, of course, in that slightly shameful way that I found Cosmopolitan interesting when I was in high school, but it's not terribly good. I highly recommend reading it to all who hunger for court gossip.

The intriguing lesson I take from the article, though, is how much more effective of an advocate one can be when one takes a gentler tone, is studiously precise, and avoids needlessly tossed-off unproven claims. (A lesson Eugene Volokh teaches (almost) every day.) The Vanity Fair article takes the opposite tactic, and the result is a flop, at least to this reader.

Bush v. Gore is the first Supreme Court opinion that I ever read, and at the time (and to this day) I wasn't quite sure what to think of it. A still-unpublished paper by Richard Posner had the most persuasive legal analysis I have yet read, but I was generally a cautious skeptic.

Reading the VF article pushed me more closely to thinking that the decision was reached legitimately, by justices honestly trying to sort out the right answers to a mess of legal issues. I don't think that's the effect the author of the piece intended (unless the author is very very clever), but it's partially the result of useless little jibes like:

"despite Clarence Thomas's public image of smoldering rage," ...

and

"the Rehnquist Court had always stingily construed the equal-protection clause of the 14th Amendment ... applying it only when discrimination was systematic, blatant, intentional, incontrovertible."

Extra, extra. The infamous Vanity Fair article on Bush v. Gore is now online, courtesy of Goldstein Howe.

Here's Part 1, here's Part 2.

Ahh, Yale Law School, where the professor stands at the front of the class while the students Socratically pepper him with tough hypothetical questions to elucidate his legal thinking.

Jacob Levy may be officially gone from the blogosphere, but he lives on in correspondence.

In response to the notion that good and true Libertarians simply cannot consistently support humanitarian foreign wars, he writes:

Libertarianism is incompatible with invading other countries and overthrowing their governments [if and only if]

1) States are fundamental rights-bearers who cannot be aggressed against — which is a really weird thing for libertarians to think.

2) Libertarianism is incompatible with any use of force, e.g. it is a variant of pacifism. Some people think this, but I deny that only they count as libertarians.

3) Libertarianism is incompatible with any state action, e.g. it is a variant of anarchism. Lots of libertarians think this, but I also deny that only they count as libertarians.

Professor Brooks:

(Sigh). I brought my book today; I figured, if you guys were going to keep messing around with text, I'd better. But remember, you instigated this.