"Princeton went coed in Alito’s sophomore year. Alice Kelikian, who became a friend of his, remembered hanging out with him around a microwave oven..."

"... that had just been installed on campus, warming up chocolate-chip cookies while talking about Italy and the philosopher John Rawls. Kelikian, who dated one of Alito’s friends, noted that Alito was always 'very respectful of me,' adding, 'A lot of male classmates were not.' Still, feminism was in the air...."

From "Justice Alito’s Crusade Against a Secular America Isn’t Over/He’s had win after win—including overturning Roe v. Wade—yet seems more and more aggrieved. What drives his anger?" by Margaret Talbot (The New Yorker). This is a very long article, and my excerpts don't represent the overall thesis justifying the article title. I'm just pointing to some things that intrigued me.

In 1973, the year after Alito graduated...

The year I graduated from college. 

"Those who imagine that democracy is a simple thing (one-person, one-vote!) are mistaken; democracy, according to Bickel, is a 'mystery.'"

Bickel is the lawprof Alexander Bickel, who published a book — "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System" — in 1971 that I wrote about shortly after the hotly contested, mind-bending election in 2000:

The electoral college is not “readily understandable,” but it has proven itself marvelously effective and adaptable. Bickel perceived Congress as biased toward the “rural, nativist, and Protestant,” and therefore warranting the counterbalance by a President whom the electoral college has compelled to appeal to urban minorities. Despite its favoritism for the large state and its well-defined urban subgroups, the electoral college serendipitously satisfies the rural and small-town residents of the small states: they feed on the “symbolic value” created by the electoral college’s recognition of the individual states. “It happens that the electoral college can satisfy, at once, the symbolic aspirations of the small states, and the present, practical needs of the large ones. Not many institutions work out as artistically as that.” Presumably, the citizens of large states do not suffer from the negative symbolism of the constant two; perhaps their urban savvy enables them to see real advantage, while the rubes are placated by symbolism....

Bickel conceded that demographic change will inevitably take place, but trusted the system to “digest” any change and turn it once again to the good. Bickel’s constitutional system is a living organism, growing, adapting to change, and, apparently, possessed of a digestive tract. How much easier it is to trust the continued evolution of a living system that has adapted in the past than to look toward an untried reform, designed according to the reformers’ naïve reliance on abstract principle!

Why is it not the case, one might ask, that the large states and the urban minority groups, whom Bickel wanted to empower, would benefit at least as much from the direct vote plan? One imagines candidates motivated to pursue as many votes as they can get, regardless of geographic distribution, as efficiently as possible. Would they not gravitate to the densely populated urban areas and make proposals aimed at the well-organized and well-defined demographic groups? As Bickel asserted, the direct vote system would lead candidates to run national campaigns, ignoring the local urban concerns that are so important in the electoral college system. Bickel did not credit the direct vote proponents with practical sense: to him, they are fools, “mesmerized” by the one-person, one-vote slogan.... Instead of valuing the counterbalancing presidential role the electoral college promotes, reformers dreamed up the absurd idea that they ought to “amend the Constitution to make it mean what the Supreme Court has said it means.”

That last quote chimes with a column in the L.A. Times that many of us were reading over the weekend, in which lawprof Kenneth Jost goes so far as to assert that the Supreme Court could actually find the Electoral College unconstitutional because it fails to comport with the one-person-one-vote interpretation of the Equal Protection Clause of the 14th Amendment (which doesn't apply to the federal government, a fine point that can be taken seriously or brushed off, depending on what you want to see happen). Jost writes:

The electoral college is enshrined in the Constitution, but that doesn’t necessarily make it constitutional. 

Well, yeah, it does, but let's continue:

The framers “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Justice Anthony M. Kennedy wrote in nullifying anti-sodomy laws in Lawrence vs. Texas. “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” 

Lawrence v. Texas is an interpretation of the Due Process Clause which contains the word "liberty," and Kennedy was talking about looking for the meaning of "liberty" and seeing the abstract concept as something that can be understood differently at different times. There's no complicated search for the meaning of the Electoral College. The Constitution delineates it in explicit, concrete terms. There's no interpretation of the relevant words that can make it go away. You'd have to leap to the shocking concept that part of the Constitution can violate another part of the Constitution. Imagine what we could do with that. The Establishment Clause violates the Free Exercise Clause, etc. etc.

Let's get back to my article about Bickel's book:

It would make more sense, Bickel writes, to look at the good the electoral college has done and to infer the incorrectness of the one-person, one-vote principle. Indeed, the principle defies many of the structural components of constitutional law: the role of the Supreme Court, the two-senator allotment, the provision of at least one House member for each state, and the various requirements of supermajority. If Baker v. Carr is telling us to look with suspicion on all of those things, we ought instead to look with suspicion on Baker v. Carr. Democracy is not a matter of one-person, one-vote but of building “widespread assent” though the aggregation of a collection of minorities; “minorities rule” in a pluralistic country. Somehow, mysteriously, the electoral college achieves that real, complicated majority. Or so goes the Bickelian argument.

Richard Posner gives 5 reasons to keep the Electoral College.

In case you want to contemplate the unachievable goal of getting rid of it or you just want to learn to love what you can't avoid.

After the 2000 election, I read 3 books, published in 1971/1972, dealing with the inquiry into the Electoral College that grew out of the very close 1960 election. The great constitutional law scholar Alexander Bickel wrote one of the books, "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System." Here's the PDF of the article I wrote about it.

Posner doesn't mention one benefit to the Electoral College that was considered very important back in the 1960s: the perpetuation of the 2-party system. From my article:

Although the electoral college does not eliminate third parties, it suppresses them. Only the geographically concentrated third party can gain electoral votes. If third parties have a role to play, one should argue that it is the third party that transcends state borders that is more likely to infuse the political debate with worthy new ideas; better a Henry Wallace than a George Wallace. Despite the disturbing ability of a third party candidate like George Wallace to make headway in the electoral college system by appealing to regional prejudice, that candidate did not succeed. The threat he posed within the electoral college system was overshadowed, at least for some observers, by the potential under the direct vote system for multiple candidates to jockey for position in a runoff or to seek to provoke a runoff and then bargain with candidates who might need to make deals or concessions to win in the runoff. Withdrawing the need to win a plurality in a state to acquire votes would energize third parties who tapped national popular issues. More candidates would enter the field, creating a greater likelihood of a runoff election and lowering the percentage necessary to qualify for the runoff. What if moderate candidates cancelled each other out, resulting in a runoff between two ideologues or extremists? What would stop major party candidates who failed to win their party's nomination from routinely joining the race? Instead of opening the democratic process to greater participation, one might end up with a small crowd of “demagogues, quick-cure medicine men, and ... fascists of left and right” who would collude among themselves.

The perceived need to preserve the 2-party system led the ABA to identify 6 other reasons why it would continue without the Electoral College:

... (1) the tendency of an existing form to persist; (2) the use of plurality votes to determine the winners of single member districts; (3) public consensus; (4) a supposed American cultural homogeneity; (5) political maturity; and (6) the natural tendency toward dualism. 

Yeah, I know: what?! But that's what they said. You may wonder what's so damned good about the 2-party system. But a key point was: You can't amend the Constitution without the votes of the present members of Congress and the state legislatures, and these folks are all there as a consequence of the 2-party system. The argument they made out loud was that the 2-party system produced stability and moderation.

On not subscribing to Wired.

The Wired that just arrived (see previous post) is not the newest issue, but the September issue. Wired does that annoying thing that magazines do when you subscribe, which is to send you an older issue, even though you might very well have bought that issue on the newstand. This practice makes subscribing to magazines less of a bargain than the card in that copy you just bought makes it seem.

Yet, in fact, I did not subscribe to Wired. I did something even more foolish. I paid for the premium subscription to Salon.com, because I figured I'd go there often enough that it was worth buying off the commercial they make you watch to get through to the content. But Salon turns out to be less enticing when it isn't walled off with a commercial. Anyway, the subscription to Salon included free subscriptions to Wired and U.S. News & World Report, magazines I now feel that I must at least flip though. Wired and U.S. News & World Report each sent me a postcard offering to cancel my subscription for a $12 (or so) payoff, but I missed my chance. Now I receive these rather silly publications in the mail and waste time looking at them.

I knew it was dumb to say "awesome," but Wired helps me stay hip by advising me to replace "amazing" with "audacious." That's asinine. And Wired's coverage of politics is fatuous. Little sidebars in the September issue identify problems with American politics. Problem #2 is: "The electoral college is broken." A checked box appears next to "SOLUTION." There is a half column explanation of the amazing, audacious solution Wired's genuises have hit upon:

Move to a popular vote. And make it count with instant runoffs. In this system, voters rank the candidates in order of preference. If the first "winner" doesn't get 50 percent of the vote, the least favorite candidate is dropped, and those votes go to the voters' next favorite candidate. You do a new count, and repeat the process until someone gets 50 percent. This way votes aren't wasted: If voters don't get their first choice, they get something close - their second or third choice. It also allows third parties to emerge without "spoiling it" for like-minded candidates. In 1992, for example, many votes for Perot would have transferred to George Bush Sr., and Clinton might never have triumphed. (The reverse applies to Gore and Nader.) The system hasn't been tried partly because the big parties selfishly don't want to encourage competition, and partly because all that recounting is logistically tricky. But now that we're moving to electronic voting, "the technological barrier vanishes. Computers can do those recounts in an instant," says Rob Richie, executive director of the Center for Voting and Democracy. Digital tech could usher in an age where your vote finally matters.

Do you think you might come down for a moment from your high-tech high and apply some of your intelligence to thinking through the ramifications of how this system would play out? Without the Electoral College system, we would have completely different candidates and many more of them, including many strange niche candidates and extremists who would have unpredictable clout. You want to give a chance to a third party candidate? Your solution gives a chance to a tenth party candidate! You think the "big parties" are just being selfish? Have you ever tried to understand the beneficial moderating effect of the two party system?

I recommend Alexander M. Bickel's book Reform and Continuity: The Electoral College, the Convention, and the Party System, published in 1971, which I reviewed, a propos of the 2000 election, in "Electoral College Reform Déja Vu," 95 Northwestern University Law Review 993 (2001). People spent a lot of time considering abolishing the Electoral College in the decade that followed the very close 1960 election and discovered important safeguards it provides that would be lost with a switch to the superficially appealing popular vote. In any case, given the difficulty of amending the Constitution, especially when shifting the states' power is concerned, it isn't going to happen.