Don’t get trapped in the now. You can help future generations survive risks like climate change, pandemics, and artificial intelligence.
In 2015, 20 residents of Yahaba, a small town in northeastern Japan, went to their town hall to take part in a unique experiment.
Their goal was to design policies that would shape the future of Yahaba. They would debate questions typically reserved for politicians: Would it be better to invest in infrastructure or child care? Should we promote renewable energy or industrial farming?
But there was a twist. While half the citizens were invited to be themselves and express their own opinions, the remaining participants were asked to put on special ceremonial robes and play the part of people from the future. Specifically, they were told to imagine they were from the year 2060, meaning they’d be representing the interests of a future generation during group deliberations.
What unfolded was striking. The citizens who were just being themselves advocated for policies that would boost their lifestyle in the short term. But the people in robes advocated for much more radical policies — from massive health care investments to climate change action — that would be better for the town in the long term. They managed to convince their fellow citizens that taking that approach would benefit their grandkids. In the end, the entire group reached a consensus that they should, in some ways, act against their own immediate self-interest in order to help the future.
This experiment marked the beginning of Japan’s Future Design movement. What started in Yahaba has since been replicated in city halls around the country, feeding directly into real policymaking. It’s one example of a burgeoning global attempt to answer big moral questions: Do we owe it to future generations to take their interests into account? What does it look like to incorporate the preferences of people who don’t even exist yet? How can we be good ancestors?
Several Indigenous communities have long embraced the principle of “seventh-generation decision making,” which involves weighing how choices made today will affect a person born seven generations from now. In fact, it’s that kind of thinking that inspired Japanese economics professor Tatsuyoshi Saijo to create the Future Design movement (he learned about the concept while visiting the US and found it extraordinary).
But most of us probably haven’t given much thought to how we can become good ancestors. As a quote attributed to Groucho Marx puts it: “Why should I care about future generations — what have they ever done for me?”
It’s also just genuinely hard to focus on the future when we’re struggling under the weight of our day-to-day problems, and when everything in society — from our political structures (think two- and four-year election cycles) to our consumerist technologies (think Amazon’s “Buy Now” button) — seems to favor short-term solutions.
And yet, failing to think long term is a huge problem. Threats like climate change, pandemics, and rapidly emerging technologies are making it clear that it’s not enough to adopt “sustainability” as a buzzword. If we really want human life to be sustainable, we need to break out of our fixation on the present. Training ourselves to take the long view is arguably the best thing we can do for humanity.
Why we should care about people who don’t exist yet
Picture this: A child is drowning in front of you. You see her desperate limbs flailing in a pond, and you know you could easily wade into the waters and save her. Your clothes would get muddy, but your life wouldn’t be in any danger. Should you rescue her?
Of course you should.
Now, what if I told you that the child was on the other side of the world, in a village in Nepal. She’s drowning in a pond there right now. An adult just like you is passing by the pond and sees her flailing. Is it just as important for that adult to save her as it is for you to save the child near you?
Hilary Greaves, a philosopher at the University of Oxford, thinks you should answer yes. “I’d hope that most reasonable people would agree that pain and suffering on the other side of the world matter just as much as pain and suffering here,” she said. In other words, spatial distance is morally irrelevant.
“And if you think that, then it’s pretty hard to see why the case of temporal distance would be any different,” Greaves continued. “If there’s a child suffering terribly in 300 years’ time, and this is completely predictable — and there’s just as much that you could do about it as there is that you could do about the suffering of a child today — it’d be pretty strange to think that just because it’s in the future it’s less important.”
This hypothetical — an adaptation of a classic Peter Singer thought experiment — highlights the idea that future lives matter, and that we should care about improving them just like we care about improving those of people alive today.
Roman Krznaric, a research fellow at the Long Now Foundation and the author of the new book The Good Ancestor, offers an even starker analogy. “If it’s wrong to plant a bomb on a train that kills a bunch of children right now, it’s also wrong to do it if it’s going to go off in 10 minutes or 10 hours or 10 years,” he told me. “I think we shouldn’t be afraid of making that moral argument.”
And, increasingly, people are making that moral argument. “Legal struggles for the rights of future people are exploding around the world,” Krznaric said.
In 2015, 21 young Americans filed a landmark case against the government — Juliana v. United States — in which they argued that its failure to confront climate change will have serious effects on both them and future generations, which constitutes a violation of their rights.
In 2019, 15 children and teens in Canada filed a similar lawsuit. That same year, the Supreme Court of the Netherlands issued a groundbreaking ruling ordering the government to cut its greenhouse gas emissions, citing its duty of care to current and future generations.
This past April, Germany’s Federal Constitutional Court likewise ruled that the government’s current climate measures weren’t good enough to protect future generations, giving it until the end of 2022 to improve its carbon emissions targets.
Also in April, Pakistan’s Supreme Court ruled against the expansion of the cement industry, which is terrible for the climate, in certain areas of Punjab. In the decision, the presiding justice wrote: “The tragedy is that tomorrow’s generations aren’t here to challenge this pillaging of their inheritance. The great silent majority of future generations is rendered powerless and needs a voice. This Court should be mindful that its decisions also adjudicate upon the rights of the future generations of this country.”
Krznaric, who was surprised and delighted to find his book cited in the court proceedings, told me, “These lawyers and judges are trying to find a language to talk about something they know is right, and it’s about intergenerational justice. Law is generally slow, but stuff is happening fast.”
How to nudge society to care more about the long term
The push to embrace this kind of thinking isn’t limited to the courts. A few countries have already created government agencies dedicated to thinking about policy in the very long term. Sweden has a “Ministry of the Future,” and Wales and the United Arab Emirates both have something similar.
Prominent figures in other countries are pushing their governments in that direction. For example, philosopher Toby Ord, who spearheads a British nonprofit called the Centre for Long-Term Resilience, published a report in June urging the UK to appoint a chief risk officer who would be responsible for sussing out and preparing for extreme risks.
“By my estimate, the likelihood of the world experiencing an existential catastrophe over the next 100 years is one in six — Russian Roulette,” Ord said. “We cannot survive many centuries operating at a level of extreme risk like this.”
Ord emphasizes that humanity is highly vulnerable to dangers in two realms: biosecurity and artificial intelligence. Powerful actors could develop bioweapons, and individuals could misuse advances in synthetic biology to create man-made pandemics that are much worse than those that occur naturally. AI could outstrip human-level intelligence in the coming decades and, if not aligned with our values and goals, could wreak havoc on human life. These are potential existential risks to humanity, and we need to devote a lot more time and money to mitigating them.
On both sides of the Atlantic, intellectuals in recent years have formed organizations dedicated to cultivating long-term thinking. While Ord has been busy building the Centre for Long-Term Resilience in the UK, for example, Ari Wallach has been working on Longpath in the US. Operating under the motto “Be Great Ancestors,” Longpath gathers together CEOs, academics, and other individuals to do exercises meant to counter short-term thinking, from practicing mindfulness to writing letters to their future selves.
There’s a story in the Talmud that Wallach likes to tell participants: “One day, a man named Honi was walking along and saw a man planting a carob tree. Honi asked him, ‘How many years will it take until it will bear fruit?’ He said, ‘Not for 70 years.’ Honi said, ‘Do you really believe you’ll live another 70 years?’ The man answered, ‘I found this world provided with carob trees, and as my ancestors planted them for me, so I too plant them for my descendants.’”
What the man expresses in the story is gratitude toward his ancestors, and it’s that emotion that propels him to look out for his future descendants. The story captures a truth about human psychology that has since been validated in scientific studies: Eliciting gratitude in people is an effective behavioral nudge for getting them to act in the best interests of future generations.
“When people evoke feelings of gratitude (through prayer, counting blessings, etc.), the result on decisions is one of patience and value for the future relative to the present. We find they become more generous and even extract fewer resources from common resource pools,” David DeSteno, a psychology professor at Northeastern University, told me. “If gratitude makes you willing to extract fewer resources in the present (e.g., fish), they (e.g., fish stocks) can replenish or remain for future generations. Of course, this reduces immediate profit.”
DeSteno’s words highlight a fundamental tension: If we really care about creating a sustainable future for humanity, we may need to be willing to sacrifice some short-term gains.
But Wallach doesn’t think we need to frame this as a tough trade-off at all. He doesn’t ask people to sacrifice the concrete pleasures of today for the abstract rewards of tomorrow. Instead, he’s found it more effective to highlight how acting altruistically toward future generations can actually bring us pleasure now.
“When we ask people if they want to be the great ancestor that the future needs them to be, as part of what gives them meaning and purpose, they are no longer under the spell of lifespan bias,” he told me. “They see themselves as part of something larger. They are no longer being asked to sacrifice for the future, but to enhance their own sense of meaning and purpose in their present.”
Is caring for the future more important than caring for the present?
If you’ve gotten this far and you’re convinced that you should look out for future generations, you’re already ahead of lots of people. But it might interest you to know that some philosophers think longtermism — the idea that we should be concerned with ensuring that the future goes well — doesn’t actually go far enough.
Both Greaves and another Oxford philosopher, Will MacAskill, advocate for strong longtermism, which says that impacts on the far future aren’t just an important feature of our actions — they’re the most important feature. And when they say far future, they really mean far: They argue we should be thinking about the consequences of our actions not just one or five or seven generations from now, but thousands or even millions of years ahead.
Their reasoning goes like this: There are going to be far more people alive in the future than there are in the present or have been in the past. Of all the human beings who will ever be alive in the universe, the vast majority will live in the future.
If our species lasts for as long as Earth remains a habitable planet, we’re talking about at least 1 quadrillion people coming into existence — 100,000 times the population of Earth today. (Even if you think there’s only a 1 percent chance that our species lasts for as long as Earth is habitable, the math still means the number of future people outstrips the number of present people.) And if humans settle in space one day, we could be looking at an even longer, more populous future for our species.
Now, if you believe that all humans count equally regardless of where or when they live (remember the drowning-child-in-Nepal thought experiment?), you have to think about the impacts of our actions on all their lives. Since there are far more people to affect in the future — because most people who’ll ever exist will exist in the future — it follows that the impacts that matter most are those that affect future humans.
That’s how the argument goes, anyhow. And if you buy it, it might dramatically change some of your choices in life. Instead of donating to soup kitchens or charities that save kids from malaria today, you may donate to researchers who are figuring out how to ensure that tomorrow’s AI will be aligned with human values. Instead of devoting your career to being a family doctor, you may devote it to research on pandemic prevention. You’d know there’s only a tiny probability your donation or actions will help humanity avoid catastrophe, but you’d reason that it’s worth it — if your bet does pay off, the payoff would be enormous.
But you might not buy this argument at all. You might object that you can’t reliably predict the effects of your actions in one year, never mind 1,000 years, so it doesn’t make sense to invest a lot of resources in trying to positively impact the future when the effects of your actions might wash out in a few years or decades.
That’s a very reasonable objection. Greaves acknowledges that in a lot of cases, we suffer from “moral cluelessness” about the downstream effects of our actions. “But,” she told me, “that’s not the case for all actions.”
She recommends targeting issues that come with “lock-in” opportunities, or ways of doing good that result in the positive benefits being locked in for a long time. For example, you could pursue a career aimed at establishing national or international norms around carbon emissions, or nuclear bombs, or regulations for labs that deal with dangerous pathogens. These actions are almost certain to do good — the kind of good that won’t be undone quickly.
“It’s in the nature of a lock-in mechanism that the effects of your actions persist for an extremely long time,” Greaves said. “So it gets rid of your concern that the effects will keep getting dampened and dampened as you get further into the future.”
You might object to strong longtermism on different grounds, though. You might think, perhaps not unfairly, that it smacks of privilege — that it’s easy to take such a position when you live in relative prosperity, but that people living in miserable conditions today need our help now, and we have a duty to ease their suffering.
In fact, you might reject the premise that all humans count equally regardless of when they live. Maybe you think we have an especially strong duty to humans who are alive in the present because aggregated effects on people’s welfare aren’t the only things that matter — things like justice matter too. We might owe it to disadvantaged groups today to help them out, possibly as reparations for harm done in the past through colonialism or slavery.
When I voiced this objection to Greaves, she admitted it’s plausible that thinking, utilitarian-style, only about what would be the better outcome doesn’t exhaust the moral story — that maybe we should take virtues such as justice into account. But she said it’s still a mistake to think that that obviously sways the balance in favor of present people. If justice is in the picture, she rebutted, why shouldn’t justice also apply to future people?
“Take the case of reparations. If you think that there are some people we owe reparations to because of wrongs done in the past that are affecting their interests now, and in some of those cases you’re talking about wrongs that were done hundreds of years ago, that quite nicely makes the point that bad things we do now can — via the route of justice — have adverse impacts in a couple hundred years’ time,” Greaves said. “So you might think it’s a matter of justice that we owe it to future generations to bequeath them both an existence in the first place and the conditions for their flourishing.”
It’s worth noting that Greaves does not find it easy to live her philosophy. She told me she feels awful whenever she walks past a homeless person. She’s acutely aware she’s not supporting that individual or the larger cause of ending homelessness because she’s supporting longtermist causes instead.
“I feel really bad, but it’s a limited sense of feeling bad because I do think it’s the right thing to do given that the counterfactual is giving to these other [longtermist] causes that are more effective,” she said. “The morally appropriate thing is to occupy this kind of middle space where you’re still gripped by present-day suffering but you recognize there’s an even more important thing you can do with the limited resources.”
Not everyone will agree with this reasoning, and that’s perfectly okay. You can agree with longtermism without agreeing with strong longtermism.
You can also decide that strong longtermism is pretty intellectually convincing, but you’re not confident enough in its claims that you want to devote 100 percent of your charitable donations or your time to exclusively longtermist causes. In that case, you can split your money (or time) into different buckets: You might decide that 50 percent of your donations go to longtermist issues and 50 percent go to causes like poverty, homelessness, or racial justice.
If you feel safer hedging your bets this way, you’re not alone. Even Greaves admits that it’s scary to commit fully to her philosophy. “It’s like you’re standing on a pin over a chasm,” she told me. “It feels dangerous, in a way, to throw all this altruistic effort at existential risk mitigation and probably do nothing, when you know that you could’ve done all this good for near-term causes.”
A few things about the future we can all probably agree on
If you care about helping both present and future generations, you might want to think about things that check both boxes. This is the strategy Krznaric recommends. “Let’s find the sweet spot between our self-interest today and the future that even Groucho Marx might be happy with,” he said.
While Krznaric isn’t confident in our ability to predict the knock-on effects of technological shifts, he thinks it’s easier to say for sure that certain ecological shifts would be good. For example, if we donate to groups that make a positive difference in staving off climate change and preventing pandemics, that’s really good for us today and in the near future — and highly likely to be positive for the long-run future too.
“What do we know about human life, whether it’s today or in 200 years or 300 years?” he said. “We know that if there are any creatures like us, they’ll need air to breathe and water to drink. If you want to think long term, one of the best ways to do it is, don’t think about time, think about place.”
He cited biologists such as Janine Benyus, who explains how some creatures have managed to survive for 10,000 generations and beyond: by taking care of the place that will take care of their offspring. They live within the boundaries of the ecosystem in which they’re embedded. They don’t foul the nest.
This focus on safeguarding place for both the present and the future could end up being an important line of research within longtermism. One advantage of this approach is that it’s not excessively morally demanding, whereas it’s maybe too demanding to say that we ought to devote most of our resources to improving the far future even when it comes at a serious cost to current interests.
Mind you, Greaves and MacAskill make a good point when they write that “even if, for example, there is an absolute cap on the total sacrifice that can be morally required, it seems implausible that society today is currently anywhere near that cap.”
Ultimately, the world doesn’t need everyone to focus all of their resources on the far future all the time — but we’re a long way from a situation where even a fraction of us are focusing even a fraction of our resources on it. Because long-term thinking is so neglected, it would probably do a lot of good if more of us were to direct more attention to making human life sustainable.
And if we think human life in the future might be full of awesome things like happiness and knowledge and beauty — or even if we think there’s just a decent chance it could be more good than bad — then thinking about how to increase the odds of such a future for later generations is really worth our time.
In fact, our lives may start to feel much more meaningful if we regularly pause to ask ourselves: How can I shape the larger story of humanity into something fruitful? What carob trees am I planting?
Further reading:
- Nick Beckstead’s 2013 philosophy dissertation, “On the Overwhelming Importance of Shaping the Far Future,” set the groundwork for more recent philosophical work on longtermism.
- Hilary Greaves and Will MacAskill’s original working paper, “The Case for Strong Longtermism,” frames the case in very strong terms: “For the purposes of evaluating actions, we can in the first instance often simply ignore all the effects contained in the first 100 (or even 1000) years, focussing primarily on the further-future effects. Short-run effects act as little more than tie-breakers.” The revised version, dated June 2021, leaves this passage out.
- Hilary Greaves explains “moral cluelessness” on the 80,000 Hours podcast.
- Toby Ord argues the long-term future matters more than anything else, also on the 80,000 Hours podcast.
- Roman Krznaric has a running list on his website of organizations promoting long-term thinking, as well as an interesting Intergenerational Solidarity Index, a measure of how much different nations provide for the well-being of future generations.
The influence of the “wave” of Korean music and film on global culture was no accident.
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Sam Nakahira is a comic artist and recent graduate from the Center of Cartoon Studies. Her Twitter is @smnakha and more of her work can be found at samnakahira.com.
The biggest loser was democracy.
The Supreme Court just completed its first term since liberal Justice Ruth Bader Ginsburg’s death, and her speedy replacement with conservative Justice Amy Coney Barrett. So the preeminent question on many court-watchers’ minds was just how many victories the Republican Party — and the conservative movement more generally — would rack up in a 6-3 conservative Court.
The answer to that question is that Republicans probably got about 80 to 90 percent of what they realistically could have expected. The Court did not neutralize the entire Voting Rights Act, as some Republican litigants basically asked the Court to do, but it hamstrung the one remaining provision it had thus far left intact. The Court also targeted labor unions. It hung a sword of Damocles over laws requiring political campaigns to disclose their donors. And it revolutionized much of the Court’s religion jurisprudence, handing big victories to the Christian right in the process.
The term was not a clean sweep for conservatives. But the few high-profile victories for liberals were either very narrow or involved frivolous legal claims that no reasonable judge would endorse. The Court, for example, dismissed an attack on the Affordable Care Act that was widely mocked even by prominent critics of Obamacare. (It’s also normal for conservatives to lose a few high-profile cases after the Court takes a significant rightward turn, because partisan lawyers are more likely to make more dubious legal arguments when they think the Court is on their side.)
As several commentators have noted, the Court did seem to divide into three camps for much of the term. The three liberal justices struggled to hold back a growing right-wing tide, while Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch often pushed for bigger and more legally dubious conservative victories. That left Chief Justice John Roberts, Justice Brett Kavanaugh, and Barrett in the middle.
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Erin Schaff-Pool/Getty Images
But the biggest takeaway from this term is that the Court’s middle is really far to the right. If you’re a conservative, and your biggest complaint about the Supreme Court is that a majority of the justices rejected an anti-Obamacare lawsuit that many Republicans tried to distance themselves from, you don’t have much to complain about.
Loser: Democracy
Roberts has spent much of his career crusading against voting rights, specifically the Voting Rights Act of 1965, the landmark civil rights law that ended Jim Crow practices disenfranchising Black voters and prohibiting race discrimination of all kinds in elections.
As a young Justice Department lawyer, Roberts fought unsuccessfully to convince President Ronald Reagan to veto an important 1982 amendment to the law, which overturned a previous Supreme Court decision making it very difficult to win Voting Rights Act lawsuits. As a justice, Roberts wrote the Court’s decision in Shelby County v. Holder (2013), which neutralized much of the law. He also joined two other opinions severely weakening the rest of the law — the latter of which, Brnovich v. DNC, was decided on the last day of this term.
The practical impact of this trilogy is that the Voting Rights Act is barely alive. Under Brnovich, for example, states are likely to have carte blanche to roll back early voting and absentee voting, as well as other, similar innovations that became common in the last four decades. And most challenges to the latest wave of Republican voter suppression laws are likely to fail.
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Stefani Reynolds/Bloomberg via Getty Images
And, on top of all of that, the Court’s decision in Americans for Prosperity Foundation v. Bonta, in Justice Sonia Sotomayor’s words, places a “bull’s-eye” on all laws requiring political organizations and campaigns to disclose their donors.
Simply put, the Court moved the country several steps closer to competitive authoritarianism this term.
Winner: The shadow docket
The “shadow docket” refers to an array of emergency motions, requests to stay lower court opinions, and other Supreme Court orders handed down without following the Court’s ordinary deliberative procedures. The Court typically spends months pondering cases that receive full briefing and oral argument before the justices. Shadow docket cases, by contrast, are often decided in mere days — meaning that they can often lead to haphazard decision-making if the justices are insufficiently cautious.
This risk was on full display this past term, as the Court appeared to take one, extraordinarily aggressive approach in the religion cases that arose on its shadow docket, while also being much more cautious in a case that was briefed and argued.
One of the biggest surprises from this past term was the Court’s narrow decision in Fulton v. City of Philadelphia — a potentially very significant religion case that arose on the Court’s ordinary docket. Fulton was decided after the Court handed down several transformative victories for the religious right in shadow docket cases. And these shadow docket cases ruled in favor of religious objectors, holding that churches and other houses of worship could ignore public health regulations intended to prevent the spread of Covid-19.
The stakes in Fulton were enormous — though not quite as enormous as the shadow docket cases about whether public health officials may limit the spread of a deadly disease. Fulton presented the question of whether people with religious objections to homosexuality have a constitutional right to discriminate against same-sex couples.
Yet, rather than following the path laid out in its shadow docket decisions this term, Fulton ended instead with a whimper. The Court decided the case on such fact-specific grounds that it is far from clear that the majority opinion has any implications at all for future cases.
It’s not at all clear what to make of this outcome, but one possible explanation is that, when it chose to decide important cases very quickly — as it did in its shadow docket religion cases — the justices rushed to an outcome that they would have avoided if they’d taken more time to think.
As Sotomayor wrote in a 2020 opinion warning that her Court is too eager to decide important cases without adequate deliberation, shadow docket cases can “force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.”
Although three justices — Thomas, Alito, and Gorsuch — would have given religious conservatives the sweeping legal immunity they sought in Fulton, Barrett wrote a brief concurring opinion explaining that she was unwilling to overrule a three-decade-old precedent denying such immunity to religious objectors until she had a better sense of what should replace that precedent.
For Barrett, at least, the opportunity to spend months, instead of mere days, thinking about Fulton appears to have stirred her to caution.
It remains to be seen whether the Court will heed Sotomayor’s warnings about deciding major cases on the shadow docket in the future. In this past term, however, the Court was quite willing to make sweeping decisions with minimal deliberation.
Loser: Samuel Alito
Justice Samuel Alito is the Court’s most reliable partisan, and that’s especially true in cases involving the Affordable Care Act. Last term, Alito was the sole dissenting voice in an 8-1 decision rejecting a $12 billion scheme by Republicans to sabotage Obamacare. Overall, he’s heard four Obamacare cases and ruled in favor of the side seeking to undermine the law every single time.
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Ken Heinen/Supreme Court Pool via Getty Images
Yet California v. Texas, the most recent of these cases (the Court voted 7-2 to reject this latest attack on Obamacare earlier this month) was unlike the others in that much of the conservative movement spent the past couple of years trying to distance itself from the unusually weak legal arguments presented in that case. The Wall Street Journal’s editorial board, ordinarily a strident foe of the Affordable Care Act, labeled the case the “Texas Obamacare Blunder.”
Indeed, the Texas case, which was brought by 18 Republican state attorneys general and backed by the Trump administration, inspired a bizarre spectacle during Barrett’s confirmation hearing last fall — where Senate Democrats warned that Barrett could vote to strike down Obamacare, while their Republican counterparts rushed to Barrett’s defense by predicting that their own party’s lawsuit would flop. In the end, Barrett voted to dismiss the case for lack of jurisdiction.
Alito, by contrast, was one of two votes to strike down Obamacare almost in its entirety (Gorsuch was the other), and he explained his vote in an opinion that was widely mocked, even by his conservative allies. Jonathan Adler, one of the architects of a previous lawsuit seeking to sabotage the Affordable Care Act, wrote that the better parts of Alito’s opinion “cannot work the way that Justice Alito wants it to,” and that the least persuasive parts “are inexplicably shallow and poorly argued.” National Review’s Robert VerBruggen wrote that “the worst thing about the decision is that two conservative justices, Samuel Alito and Neil Gorsuch, mostly bought the lawsuit’s preposterous arguments.”
The thrust of Alito’s dissenting opinion in Texas was that an amended provision of the Affordable Care Act that literally does nothing is unconstitutional, and that the appropriate response is to invalidate nearly all of Obamacare.
It may seem odd to include Alito on a list of losers, since he was the author of Brnovich and his Republican Party saw many significant victories this term, but the justice beclowned himself with his Texas opinion. It was the sort of opinion that is so poorly reasoned, it makes you question his fitness for judging.
Winner: Student-athletes
I will confess that I did not see the Supreme Court’s unanimous decision striking down many of the NCAA’s limits on college athlete compensation coming.
The Court’s decision in National Collegiate Athletic Association v. Alston is fairly straightforward. Federal antitrust law typically prevents competitors from colluding with each other to set prices, including the price of labor. But the NCAA sets labor prices for the entire college sports industry. Under the normal rules that apply to any other industry, that’s simply not allowed.
But for the past several decades, antitrust law — and especially conservative judges tasked with interpreting antitrust law — was heavily influenced by a 1978 book by the late Robert Bork, a judge whose failed Supreme Court nomination in 1987 transformed him into a right-wing martyr. Bork advanced the proposition that companies should be free to collude so long as their behavior does not lead to higher prices for consumers. And there’s no reason to believe that poorly compensated athletes drive up costs for college basketball or football fans.
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There’s even a 1984 Supreme Court decision, NCAA v. Board of Regents of the University of Oklahoma, which cites Bork for the proposition that sports leagues should be exempted from many restrictions that antitrust law imposes on other businesses.
But the NCAA didn’t just lose its bid for an antitrust exemption before the Supreme Court — it lost badly in a unanimous decision written by Gorsuch, one of the Court’s most conservative members.
It remains to be seen whether Alston represents a sea change in how the Court’s right flank approaches antitrust suits, or whether it will be unwilling to apply antitrust law to most corporations with the same vigor that it applied it to universities. But Alston is a possible sign that Bork’s consumer-focused vision of antitrust law may be losing its grip over the Court.
Additionally, the Court handed a victory to public school student-athletes — and to students generally — who find themselves on the wrong end of overly censorious school administrators. Mahanoy Area School District v. B.L. involved a cheerleader who was suspended from her school’s JV cheerleading squad after she posted a vulgar Snapchat message complaining that she did not make the varsity team.
Though Justice Stephen Breyer’s opinion for the Court is fairly measured, it makes clear that “courts must be more skeptical of a school’s efforts to regulate off-campus speech.”
Loser: Unions
Few jobs are more thankless than representing unions before the Supreme Court.
Three years ago, in Janus v. AFSCME (2018), the Court voted along party lines to cut off a major source of funding for public sector unions. Janus was the culmination of several years of decisions undercutting unions, and it overruled a 41-year-old precedent to boot.
This term, the Court showed similar disregard for precedent in Cedar Point Nursery v. Hassid, which struck down a nearly half-century-old California regulation that permitted union organizers to temporarily enter farm worksites and speak to workers while they were not actually working.
Cedar Point effectively abandoned a framework the Court has applied to unions that wish to speak to workers on company property since 1956. It also completely reworked a long line of precedents governing when landowners can exclude someone from their land. But it’s far from clear whether the new rule announced in Cedar Point will be applied very often outside of the union context.
Under this new rule, a law or regulation that “appropriates a right to invade” private property violates the Fifth Amendment’s takings clause, which prohibits the government from taking private property without “just compensation.” But Roberts’s majority opinion in Cedar Point also carved out a number of exceptions to this rule, which, taken to its logical extreme, would have made it unconstitutional for the government to require restaurants to admit health inspectors.
Though Roberts attempted to articulate a rule governing when such exceptions would apply, his explanation was little more than word salad (exceptions must bear “an ‘essential nexus’ and ‘rough proportionality’ to the impact of the proposed use of the property”). In the end, the Court made a value judgment that health inspections are sufficiently important that they should continue, but union organizing is not.
Winner: The Republican Party
No political party can expect the Supreme Court to rule in its favor in every single case, even if that party did appoint a supermajority of the justices. As Dartmouth professor of government Brendan Nyhan wrote after the Court had an unexpectedly liberal term in 2015, “the court’s recent decisions may reflect a change in the cases being considered by the court rather than a shift in the preferences of the justices.”
That is, as the Court moves right, conservative lawyers will likely bring more dubious cases, while smart liberal lawyers will avoid federal court unless they are sure their case is airtight. It is hard to imagine, for example, that the 18 Republican attorneys general that brought the Texas case would even have considered filing that lawsuit unless they believed (in this case, erroneously) that the Supreme Court was in their pocket.
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It’s also common for the Court to hand down a few fairly moderate decisions relatively early in the term before pivoting to its most contentious cases. The justices typically spend more time on the cases that produce the starkest ideological divisions, handing down most of them in the final weeks of the term.
And yet, in a term gravid with extraordinarily aggressive arguments made by right-wing lawyers, conservatives and Republicans had an exceptionally good run. They convinced the Court to hobble the Voting Rights Act, to open a new line of attack on donor disclosure laws, to expand property rights, to attack unions, and to rewrite the rules governing when religious objectors are exempt from the law.
And that’s after just one term with a 6-3 Court. Next term, the Court will hear a case that could overrule Roe v. Wade.