Cass Sunstein

An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

An article by Cass Sunstein and Adrian Vermeule: More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government. Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated. So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities. These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)

An article by Cass Sunstein: The world is soon likely to confront a serious new challenge to the fight against Covid-19: vaccine hesitancy. In the U.S. and U.K., large numbers of people — at least 30 percent — have said in recent surveys that they would hesitate to take or refuse a vaccine that could protect them from the coronavirus and slow its spread. These numbers probably understate the problem. People might tell a researcher that they will get vaccinated even if they won’t. And the problem might be even worse if a vaccine is made available under a speeded up “emergency use” exception to the usually lengthy approval process, amplifying public concerns about rushing it out. What can be done? To answer that question, we need to understand why some people are reluctant to take vaccines. Research explores the influence of three factors, often known as the three Cs. The first is convenience. Human beings suffer from inertia, and they also procrastinate. If it’s not so easy to get vaccinated, many people won’t do it. Physical proximity to vaccination sites helps; so do short waiting times. Long lines hurt. So do paperwork requirements and administrative obstacles. If widespread immunity is the goal, officials must not underestimate the importance of eliminating inconveniences, both small and large. The good news is that when vaccines are easily available, the rate of vaccination increases greatly, even among people who have doubts. The second factor is complacency. With respect to diseases, a lot of people tend to think that their personal risk is low. “Optimism bias,” as it is called, makes vaccination seem unnecessary. The third factor is confidence: public trust in the efficacy and safety of the vaccine, and also in the motivations and competence of those who are behind it.

An article by Cass Sunstein: Imagine, if you would, that it is Jan. 21, 2021, and that Joe Biden is president of the United States. The nation awaits his first executive order — a formal presidential decree, binding on the executive branch, that directs departments and agencies what to do. At 9 a.m., the executive order appears. Its name? “Scientific Integrity.” Here are its opening words: "Science and the scientific process must inform and guide decisions of my Administration on a wide range of issues, including improvement of public health, protection of the environment, increased efficiency in the use of energy and other resources, mitigation of the threat of climate change, and protection of national security." It continues: "The public must be able to trust the science and scientific process informing public policy decisions. Political officials should not suppress or alter scientific or technological findings and conclusions. If scientific and technological information is developed and used by the Federal Government, it should ordinarily be made available to the public." But that’s just the start. President Biden’s order gives unprecedented authority to the director of a relatively obscure White House office, the Office of Science and Technology Policy, to make scientific integrity real. It requires federal agencies to put new procedures in place, designed “to identify and address instances in which the scientific process or the integrity of scientific and technological information may be compromised.” To ensure that political leaders do not politicize science, it calls for protection of whistle-blowers.

An article by Cass Sunstein: The White House has powerful reasons to fear the electoral repercussions of reported comments by President Donald Trump in which he is alleged to have described fallen soldiers as “suckers” and “losers.” Those comments threaten his most important political advantage. To see why, we need to back up a bit. Jonathan Haidt, a social scientist at New York University, has specified some of the central differences between conservatives and liberals. He identified five foundations for moral judgments: harm, fairness, loyalty, authority and sanctity. Both the right and the left care about harm and fairness, even if they do not understand them the same way. But the right cares far more about loyalty, authority and sanctity. A mountain of evidence supports this conclusion. If, for example, people have been disloyal to their nation or their family, shown disrespect to their superiors, or done something disgusting, conservatives will be far more likely to show outrage. If you ask Americans how much they would have to be paid to burn their nation’s flag, or to curse their parents to their face, people on the left might demand a lot of money. But people on the right will demand more, and they might say that no amount is high enough. Building on Haidt’s work, Harvard economist Benjamin Enke has studied the rhetoric of numerous recent presidential candidates, and found that one has done better than all others in emphasizing loyalty, authority and sanctity: Trump. On the same scales, Hillary Clinton was especially bad. (Barack Obama was far better.) Enke also found that Trump’s emphasis on these values mattered to many voters, and attracted them to his side.

An article by Cass Sunstein: Suppose that on Nov. 3, and for weeks thereafter, no one knows whether Donald Trump or Joe Biden has won the presidential election. To be more specific, suppose that as of Nov. 4, Trump is unquestionably ahead in the key states — say, Michigan, Wisconsin and Pennsylvania. But suppose, too, that as those states count absentee and mail-in ballots, it becomes clear that Biden has won. Predictably, Trump alleges fraud — and tweets that his supporters, and the country as a whole, should not allow “THE GREATEST FRAUD IN HISTORY.” Everything will ultimately turn on the vote of the Electoral College, scheduled for Dec. 14, and on what happens on Jan. 6, when Congress meets to declare the winner. But if we have a fierce dispute in late November and early December, how on earth do we get to a final decision in early January? The Electoral Count Act of 1887 was designed to answer that question. In my first column on this issue, I described what the ECA requires in the event of contested elections, and explained what the law is clear about. By giving the major authority to the states, and by outlining, step by step, what is supposed to happen, it sharply limits room for political maneuvering in Washington. Unfortunately, the act also leaves some important questions unresolved. A leading political scientist of the late 19th century even described it as “very confused, almost unintelligible.” That’s too harsh. But exactly how would the law handle an objection, by Trump and his campaign, that the election was “rigged” and that mail-in voting resulted in rampant fraud? The first question, and the most fundamental, is whether the act is constitutional. Many people think that it isn’t, and the Supreme Court has never ruled one way or another.

An article by Cass Sunstein: After Nov. 3 — Election Day — there is a chance of constitutional chaos. It could take the form of acute uncertainty, not only about who won the election but also about the process by which that question will be settled. We might have a perfect storm: close contests in key states, issues with mail-in voting, allegations of voter suppression and fraud, and an incumbent president who is unwilling to accept a loss (and who is already paving the way toward contesting the results as “rigged”). To see the problem, it is essential to understand that Nov. 3 is only the first of three defining days. The second is Dec. 14, when members of the Electoral College cast their votes. The third is Jan. 6, 2021, when Congress meets in joint session to declare the winner. What happens on Nov. 3 is almost always enough to decide the presidential election. That isn’t because victory goes to the candidate with the most votes nationally, but because the popular vote, within the states, settles the outcome in the Electoral College. In nearly every state, the candidate who receives the most votes statewide is entitled to the vote of all of the state’s electors. Suppose, for example, that President Donald Trump receives 47.3% of the vote in Ohio, and that former Vice President Joe Biden receives 47.2% of the vote there. All of Ohio’s 18 electoral votes would be allocated to Trump. But what if we don’t know on Nov. 3, or even a month later, who won Ohio? Or Wisconsin, Michigan, Pennsylvania and Florida? What if it takes a long time to count the votes, and what if the results are disputed?

While the Science Weekly team take a summer break, we’re bringing you an episode from the archives – one that seems particularly pertinent as the pandemic continues and governments take a more prominent role in our day-to-day lives. Back in 2017, Ian Sample investigated how we’re constantly “nudged” to change how we act. Exploring the psychology, history and ethics of nudge theory, Ian spoke to the Harvard Law School professor Cass Sunstein and Dr. David Halpern, one of the field’s founders, who is currently advising the UK government on nudging during the coronavirus outbreak.

An op-ed by Cass Sunstein: What if nudges fail? Because of the coronavirus, that question has suddenly become urgent. Efforts to nudge people to wear masks, to engage in social distancing, and to use other protective measures have done some good. But with more than 170,000 deaths, they cannot be counted a smashing success. A nudge is an intervention that steers people in particular directions, but that fully preserves freedom of choice. A GPS device nudges. So does a calorie label or a warning (“this product contains peanuts”). Whenever a nudge fails, there are three major options. The first is to give up — declare victory and insist that freedom worked, because a major point of nudging is to allow people to go their own way. The second is to nudge better. The third is to turn to some other tool, such as a mandate or a ban.

"Bloomberg: Balance of Power" focuses on the intersection of politics and global business. A preview of night 3 of the Democratic National Convention, as vice presidential nominee Kamala Harris takes the stage. Guests: Rep. Joyce Beatty, National Urban League CEO Marc Morial, Harvard Law Professor Cass Sunstein, Pattern Energy CEO Mike Garland.

An op-ed by Cass Sunstein: In the near future, Congress should create a Commission on Electoral Integrity, with only one task: protecting the U.S. from foreign interference in its elections. That is the unmistakable lesson of Volume 5 of the Senate’s Select Committee on Intelligence report on “Russian Active Measures Campaigns and Interference in the 2016 Election.” Put to one side your own political convictions. Don’t ask whether members of Donald Trump’s campaign worked in concert with Russian officials to turn the election to him.

An article by Cass Sunstein: The intense debates over school openings are missing something crucial: numbers. Without them, it’s essentially impossible to know what to do, or to evaluate what is being proposed. Here’s an analogy. Suppose that the Food and Drug Administration is contemplating a new food safety regulation, or that the Department of Transportation is considering new restrictions on railroads. The White House Office of Information and Regulatory Affairs is supposed to require it to identify the gains and the losses — the benefits and the costs. Those numbers might not be decisive, but they’re needed. In their absence, the decision whether to proceed, or not to proceed, is essentially a stab in the dark. To be sure, some numbers might be hard to specify. The agencies might not know enough to provide them. But officials have well-established techniques for dealing with that problem. For example, agencies might be asked to disclose the ranges, including the best and worst cases, and their respective likelihoods. It’s true that politics might intervene, and you might not be able to trust the numbers. But when the system is working well, they are checked and rechecked by people who know what they are doing, and aren’t affected by political considerations. The decision whether and how to reopen schools is being made by states and localities, not by Washington, and numbers need to inform those choices. The problem is that for school openings (and much more), we’re mostly hearing abstractions and generalities — expressions of agitation and fear. On the one hand, reasonable people are pointing to the immense strain on parents of having young kids at home and the many problems with online learning. On the other hand, reasonable people (including teachers’ unions) are pointing to the risk of an outbreak and a spike in deaths.

An article by Cass Sunstein: The system of separation of powers is in real trouble. That’s the main conclusion to draw from President Donald Trump’s recent executive orders, attempting to circumvent Congress with actions that (he said) would provide some economic relief made necessary by the pandemic. A central assumption behind the U.S. Constitution no longer holds. The reason is that when members of Congress are asked to assess aggressive and possibly unlawful actions of a sitting president, they now ask one question: Is he a Democrat or a Republican? If he’s a Democrat, Republicans will complain of intolerable overreaching and an unconstitutional power grab, even if there’s no overreaching at all. If he’s a Republican, Republicans will stand by silently or applaud, even if there’s palpable overreaching. It’s probably right to say that Democrats show the same pattern, just in reverse. But because the outrage of Republican members over President Barack Obama’s unilateral actions is so recent, and because it is such a wild contrast with their general acquiescence in Trump’s unilateral actions, it’s fair to point to Republican hypocrisy in particular. (Disclosure: During the Obama administration, I served as administrator of the Office of Information and Regulatory Affairs.) It wasn’t supposed to be this way. The framers of the Constitution specifically sought to ensure that members of Congress would care about their institutional authority and work hard to protect it, no matter who occupied the White House. In the Federalist No. 51, James Madison emphasized the importance of giving “those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” As he put it, “Ambition must be made to counteract ambition.” Madison added, “The interest of the man must be connected with the constitutional rights of the place.” Those are the most important words in Madison’s argument.

An article by Cass Sunstein: Universities have come under fire from many directions for discouraging students from speaking up. A number of conservatives have said that they risk ostracism, ridicule and even threats if they express their views, or if they simply question what they see as a liberal orthodoxy. Some women complain that men dominate class discussion, while some Black and other minority students say that they resent having to explain themselves, as if they were representatives of their race or ethnicity. Can online learning reduce the problem of self-censorship? All of a sudden, with the coronavirus changing how students engage with one another and their professors, that’s a pertinent question. For the many students who are inclined to self-silence, what’s needed is what Virginia Woolf described as “a room of one’s own” — a place of freedom to say what they think, “a quiet room or a sound-proof room,” one of safety and a kind of immunity. According to a recent poll by the Cato Institute, 62 percent of Americans are afraid to disclose their political views. The percentage of Republicans who say this is especially high (77 percent). But a majority of Democrats say so as well (52 percent). Independents also claim that they self-censor (59 percent). In universities, self-censorship can be a particular problem. As a general rule, students should feel free to say what they think, at least if it is relevant to the topic. Education depends on that. Yet most experienced teachers have heard plenty of students say, after class, “I thought the discussion was way off, but I didn’t feel comfortable saying so.” For every student who is willing to take the trouble to say that, how many just stand by in silence? Some students are afraid to disclose their political convictions.

An article by Cass Sunstein: What once seemed a paranoid fantasy is now looking plausible: Well behind in the polls, President Donald Trump is suggesting a possible delay in the 2020 election. Here’s what he tweeted on Thursday: "With Universal Mail-In Voting (not Absentee Voting, which is good), 2020 will be the most INACCURATE & FRAUDULENT Election in history. It will be a great embarrassment to the USA. Delay the Election until people can properly, securely and safely vote???" There are major ironies here. Trump has repeatedly downplayed the coronavirus pandemic and called for rapid opening of cities, businesses and schools. Now he is fearful that people cannot “safely vote,” and wants to delay the election? A key reason that Trump is doing so poorly in the polls is his response to the pandemic, which is widely regarded as an abysmal failure. Now he wants to use the pandemic as a justification for stopping the ordinary operation of the democratic process? To be sure, Trump’s stated concern is with mail-in voting, which, in his view, is a recipe for fraud. But existing evidence does not support that concern. It is difficult to avoid the conclusion that Trump’s opposition to mail-in voting, and his interest in delaying the election, are a product of one concern: It looks as if he is going to lose. Fortunately, the president is not a king, and he can’t delay an election simply because he doesn’t want one. The Constitution gives the relevant power to Congress. Article 2 states: “The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Since 1948, Congress has exercised its constitutional authority with a law that says plainly: “The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.”

An article by Cass Sunstein: Some conservative legal thinkers speak of a “Lost Constitution” or “Constitution in Exile.” By that they mean the Constitution as it was understood before President Franklin D. Roosevelt’s New Deal helped form the modern regulatory state. Their Constitution in Exile would invalidate key parts of contemporary government. Some conservatives want to revive the long-dead “nondelegation doctrine,” which was once taken to forbid Congress from granting broad discretion to regulatory agencies. The Supreme Court made a strong movement in the direction of the Constitution in Exile in its most recent term, when it ruled that the Consumer Financial Protection Bureau may not be made independent of the president. The court stopped well short of upending the regulatory state. But it was just a preliminary skirmish. Bigger battles are brewing. Those who want to defend modern government — including Democrats if they regain power in November — will need to think hard about appropriate reforms if the Supreme Court begins to invalidate larger features of the U.S. government as it exists today. A Supreme Court bent on resuscitating the nondelegation doctrine would put important parts of the Clean Air Act, the Occupational Safety and Health Act and the National Traffic and Motor Vehicle Safety Act in jeopardy. Those who believe in the Constitution in Exile also have trouble with the idea of independent agencies, such as the National Labor Relations Board, the Federal Reserve Board, the Federal Communications Commission and the Federal Trade Commission. The president has limited control over the heads of such agencies; he cannot fire them simply because that’s what he wants to do.

For the past several weeks, Americans have been greeted daily with agonizing news about the coronavirus pandemic. Not simply from the anguish of the country’s spiraling cases and death tolls, but the incompetence of much of its political culture, too: Governors who flip-flop on mask-wearing, local officials who cave to pressure on public health measures, and a President who long ago stopped attending his pandemic meetings in favor of heaping abuse on his own public health agencies. But some thinkers are exploring how the country could still craft an effective pandemic policy, even in the absence of a federal one. Cass Sunstein is one of those thinkers, a longtime professor at Harvard Law School who has written extensively on the exploding area of cognitive science known as behavioral economics, and its implications for government policy. In 2008, Sunstein published the book “Nudge” along with co-author Richard Thaler, another leading scholar in behavioral economics. Together, Sunstein and Thaler envisioned a marriage of cognitive science and policy at various levels of American government that they dubbed “libertarian paternalism.” To take an example: If the cognitive bias toward “loss aversion” dictates that humans react less often to the prospect of reward than they do to the prospect of losing something they already have, such an insight could be applied to myriad aspects of policy—from “opt-out” schemes for organ donation at the DMV, to the Army’s interactions with the Taliban in Afghanistan. Fittingly, Sunstein ended up doing exactly that, serving in the Obama administration’s Office of Information and Regulatory Affairs from 2009 to 2012, where he sought out creative applications of behavioral economics to the White House policy portfolio. Lately, Sunstein has been advising foreign governments and other organizations on their own behavioral framework for addressing the pandemic, too. In an interview edited for length and clarity, Sunstein tells Washingtonian why pandemics are particularly suited to manipulating human biases, why New Zealand has tapped the cognitive power of fun, and what Texas might be able to teach the country after all.

An article by Cass Sunstein: In the last 15 years, the U.S. Supreme Court has had three swing justices, those most likely to deliver the decisive vote when the other eight are deadlocked. They are Sandra Day O’Connor, Anthony Kennedy and (now) John Roberts. They’re very different from one another, and there’s never been one quite like Roberts. A swing justice has outsized influence. Whether the issue before the court involves voting rights, free speech, presidential power or abortion, the swing justice is the person to whom lawyers most direct their attention. O’Connor, Kennedy and Roberts are hardly the only swing justices in the nation’s history. In the second half of the 20th century, other examples include Potter Stewart, Byron White, Lewis Powell Jr. and John Paul Stevens. While it is reasonable to say that swing justices are “in the middle,” it’s too simple to describe them as “moderates.” Swing justices have embraced dramatically different approaches to constitutional law. O’Connor, who joined the court in 1981, was a judicial minimalist. She attended carefully to the facts of particular disputes. She distrusted abstract theories about freedom and equality, and she liked to avoid sweeping rulings. With respect to free speech, for example, she favored narrow, case-by-case judgments, which would not reorient constitutional law in major ways. Because of her attention to detail and her openness to competing points of view, she often cast the decisive vote in important cases. She spoke quietly, but carried a big stick.

An article by Cass Sunstein: Does President Donald Trump want to deport everyone who is not an American citizen? Sometimes it seems that way. His administration recently announced that it may send home international students at colleges and universities that choose online learning in the fall, in an effort to reduce the risks associated with the coronavirus pandemic. The announcement is cruel. It’s also stupid. It is cruel to those students, many of whom are now living in the U.S., and who are suddenly threatened with deportation. It is stupid because one of the greatest U.S. strengths is its unparalleled institutions of higher education, which attract the world’s best students. Many international students go back to their own countries as friends of the U.S. and its people, keenly appreciative of the best American traditions and values. Many of them end up in positions of leadership at home, where they work closely and well with Americans. If you were an enemy of the U.S., and aimed to weaken it and to diminish its influence, you would be cheering steps to prevent international students from studying here. It’s no wonder that the new rule has prompted a lawsuit, filed on Wednesday by Harvard University and the Massachusetts Institute of Technology. But in some ways, the most fundamental problem lies elsewhere. The Department of Homeland Security announced its new policy on international students without using a process that guards against both cruelty and stupidity: public notice and comment.