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About 5 years ago, Luke Gearing wrote a blog post called Mechanisms as Abstraction. It has become an infamous piece of ttrpg design thinking, and comes up pretty often in game design discourse.

In essence, it argues that a game isn’t actually about what it has rules for. Gearing suggests that because rules are a way to not need to make judgements at the table, the stuff they don’t cover is what we are really digging into when we play.

And I think there’s a lot of merit to this idea, the oft given example these days is how Mothership has no rules for hiding because it wants you talk a lot about hiding in play rather than relying on a rule to shortcut discussion.

But something that always disgruntles me is claims like: See! DnD 5e isn’t about combat because look at all its rules for combat!

Anyone who’s got their thinking cap on half-straight knows that’s not true. Well, I have an idea. It’s not just about what we abstract into rules and what we don’t: it’s about the complexity of the abstraction and the complexity of the matters left to the table.

2-factor abstraction model

We’re going to use 2 factors to model what a game ‘is about’ vs. ‘isn’t about’:

• Coded vs free: Essentially whether the game has rules for something. OSE has rules for swinging a sword (coded). It does not have rules for brewing potions (free).

• Complex vs simple. Whether the rules or a judgement is simple or complex to use/make. The rules for combat in 5e are complex: they offer a lot of gameiness and take up table time to execute. The rules for combat in Into the Odd are simple: they are quick to execute. The judgement of whether a character can jump a gap is simple, the judgement of how they make a healing potion is complex.

This gives us 4 zones on the chart.

I’m going to make the following case:

• Games are about their complex rules and complex judgements. If a game has detailed and time-consuming rules for something, the game will focus on those aspects. Complex topics the game doesn’t have rules for but that it implies will come up by nature of the game are also focus points. That’s because they require time and thought to make judgements on.

• Simple rules are abstractions that remove focus from that topic. Mechanisms make a game not about something if they are simple and quick: if they don’t take up table time.

• Matters that are simple to judge are not the focus of a game. If a game with firearms doesn’t have rules for reloading, the game doesn’t become about reloading firearms. Reloading is an easy judgement, and remains consistent.

To make the case, we’re going to plot some games on this chart. We’ll pick 4 rules they have, one for each quadrant.

Example 1: Cairn

• Cairn has extensive procedures for exploration and supply tracking. These are a focus point of the game. The rules support you in making it a central part of the game: it is about exploration and resource management.

• Cairn doesn’t have specific rules for disarming traps, but implies traps are part of playing Cairn. It doesn’t have a procedure for disarming traps because it expects disarming traps to be a complex ‘in-world’ discussion. The players investigate the trap, ask the GM questions, and come up with a diegetic plan on how to disarm it. The GM might call for a save if needed. It’s a complex discussion that needs to be had on a case-by-case basis. So it becomes a focus of the game.

• Cairn has simple rules for combat and violence. That’s because it wants a quick resolution tool: it means combat is abstracted away and isn’t the focus of the game because it can be executed quickly.

• Cairn doesn’t have specific swimming and climbing rules. But these are easy to make quick judgements on when players are exploring/travelling, so their absence doesn’t define the game.

Example 2: Mothership

• Mothership has extensive rules for stress and sanity. Imagine trying to claim Mothership wasn’t about the mental toll of horror! The mechanics are there to make it a focus of the game.

• Mothership doesn’t have rules for stealth. That’s because it expects this to be an at-the-table discussion and when enemies are often so dangerous, hiding is a natural consideration. Working out if someone is successfully obscured is a complex judgement: it takes time and therefore becomes a focus of the game.

• Reloading weapons has simple rules in Mothership. Which means you don’t worry about it much: Mothership isn’t really about firing guns that much.

• Mothership essentially has no carrying capacity rules (they are a ‘be reasonable’ type rule). The game isn’t about inventory restrictions as a result. Mothership is telling you it’s not about inventory management.

Example 3: Blades in the Dark

• Blades has a lot of rules on factions and controlling territory. It is telling you that factions and territory are a cornerstone of a Blades game, and giving you the tools to support that focus in-depth.

• Blades does not have rules on infiltrating and exfiltrating heist locations. That’s because it expects you to figure that out as the fiction unfolds, rather than following a specific procedure. But it’s complicated and unique to each heist: so the game focuses on that.

• Loadout and gear are simple in blades. There gear you can pick is literally on your character sheet and loadout levels are specified. What gear you pick doesn’t matter so much in Blades, equipment isn’t the cornerstone of play.

• Travelling around Duskvol is given no procedural detail. That’s because Blades doesn’t want you to care about that. It wants you to cut to the dramatic bits and locations!

Complexity is the secret ingredient

Claiming DnD 5e isn’t about combat because it has extensive rules for it is like claiming Ars Magica isn’t about casting spells… it’s a ridiculous claim.

Sure, some tables may decided to shift focus away from the more complex mechanics of a game, but they are making a choice to actively ignore/not utilise a large portion of what the designers intended for table-time to spent on.

You don’t write a combat system like 5e’s and not intend it to be used regularly, that would be unhinged! In summary:

Games are about the things they have complex rules for and about the complex judgements they regularly require (for which they lack rules).

That’s my armchair theory anyway.

The UK is sliding fast. 

Having seen it play out in multiple countries, there’s a fairly predictable script for how fascist attacks on liberal democracies go. In its hysterical press coverage of illegal migrants, brutal crackdowns on legal ones, opting out of international law, implementing a national anti-trans bathroom ban, and its skyrocketing rates of racist harassment and violence, the island nation is following this script in a dull, mechanical way. The lines are delivered without improvisation—the targets are largely the same, as are the arguments. Even specific culture war cases are imported without adaptation. If you’ve seen it before, it’s all very predictable. 

But the speed with which we’re rushing through it is alarming. Sections of script it took Americans two decades to read though, we rushed through in two years. Rollbacks of rights that would be bitterly contested for years in the US, we’ve blasted though in months, or even weeks. 

Two weeks ago I published an extended critique of the Labour government radically reversing progress on trans rights. I made the case that, while this should be opposed for its own sake, it should also be viewed in the context of wider attacks on liberal rights and freedoms. That it was never just one minority targeted. 

Who would be next? No way to know for sure. Other gender and sexual minorities were an obvious target. Judging from the US, I also speculated neurodivergent people could easily be subject to press attacks. 

But I found myself thinking that all these, in a way, made too much sense. We’d get to them eventually no doubt, but I was taking the face level arguments of fascism much too seriously. As if their alleged grievances were in any way real. I asked the question again through the lens of the politics of humiliation: If I were a fascist, who would I go for next? Not for any instrumentally rational reason, but simply to prove that I could? What came to mind was:

Say it was Sikhs. They’re about the same percentage of the population as trans people (just under one percent). Say the right wing press went on an absolute crusade against them. This could be driven by a very small number of people. Would the centrist or liberal press aggressively oppose this? Given their pathetically weak and non-existent response to anti-immigrant and anti-trans propaganda respectively, we’d have to assume not. 

This felt a bit far-fetched. There was no provocation here. Sikhs are often described as a “model minority.” A problematic phrase to be sure, but surely a sign that the community wasn’t in any real danger. But then, from the perspective of my model of fascism this is a feature, not a bug. They want people to be afraid. Everyone. They think this is intrinsically good and strengthens the fabric of the state. It is one of the core goals of their ideology. It also matches their standard strategy of testing everywhere for weakness. 

Naturally, many felt I was being over the top. A number of centrist academics and commentators felt my “critique of UK democracy [was] exaggerated." The anti-trans political push wasn’t great, but it was something we brought on ourselves. Trans campaigners “got overconfident, and tried to ram through a maximalist position” and this “generated a backlash.” Based on this logic, there was no reason to think a more well-behaved minority would be victim to a similar attack. Much less that our centrist politicians and press would go along with it.

A week later they came for the Sikhs.

As is so often the case, the excuse was an individual act of violence by a member of the community. Last December, Vickrum Digwa, a Sikh man, stabbed a white teenager, Henry Novack. Novack would later die from his wounds. Digwa was recently given a life sentence for his crime, but of course in fascist logic the crimes of one individual member of a minority group condemns all of it.

They were also able to seize upon the police response; officers had initially not understood the extent of Novack's injuries and had detained him too. Placing him in handcuffs for “about a minute” and then attempting CPR, not realizing he had significant chest wounds.

A devastating error to be sure. To the far-right however, this has become proof that the police are systematically racist against white people. That DEI has gone too far, and now white ‘native’ Britons are persecuted in their ‘own country.’ To be clear, there is no evidence for this. Indeed, various reports, investigations, and testimonials from members of the public suggest the UK police, like many forces around the world, are institutionally racist the usual way. 

Whipped up by the hate mongers whose perspective our country now centres, angry crowds have clashed with police, throwing stones, bricks, and furniture. “This has gone on so long,” Tommy Robinson, an Elon Musk backed far-right thug with a long history of convictions for assault, fraud, and stalking told them. “White people, we’re treated as second-rate citizens by our own government, by our own police force.”

And conservative media immediately threw its weight behind this narrative. Anti-white systemic racism was real, Alister Heath wrote in the Telegraph, predicting more murders "until it’s crushed”. The Times and Spectator concurred. There have also been calls to specifically target Sikhs, for instance to ban the kirpan (the ceremonial dagger that it is a religious requirement to carry). Reform leader Nigel Farage called for “pure cold rage” in response to the murder. 

As expected, our more centrist media has stood by without challenging this narrative. The BBC, in a phrase that will be grimly familiar to American anti-Trump liberals said Novack’s murder “raises … questions” about race and policing in an article largely devoted to laundering fascist talking points. Or, in Sky News’ words it “highlighted the debate on whether the police are anti-white.”

And all this had been accompanied by harassment and vigilante violence. In the last few days “At least 15 people have been accosted on the streets by collectives of white individuals surrounding Sikhs” Amandeep Singh, a charity educator, told the Guardian. 

This is almost always part of the fascist push against a minority. The anti-trans turn was accompanied by increasing harassment of trans people, gender non-conforming people, and even service workers felt to be insufficiently exclusionary. After several years of sustained pressure, this reprehensible behavior has now gotten the endorsement of the Labour Government. Equalities minister Seema Malhotra, explaining how the bathroom ban would work in Parliament, said that people should “step in where necessary" and “alert a member of staff” if they see a trans person entering a single-sex space. The sheer cowardice of this statement, as many have noted, perfectly summarized Labour’s approach: segregation by speaking to the manager, making a lower status person do the ugly work of enforcement, while you pretend you’re still a good person. 

Would you see a similar simpering surrender if the fascists really committed to an anti-Sikh campaign? Do you doubt it? Whether it’s Labour or the next government, how long until we are told to inform the serving staff when you see someone with a turban or ceremonial dagger?

I predicted, in sketching an anti-Sikh panic, that political parties would cave to pressure “Enthusiastically in Reform’s case, awkwardly and abjectly in Labour’s.” Just as I was finalising edits to this article, Andy Burnham, currently the party's preferred successor to Starmer, was asked about removing the exemption that allows Sikhs to carry small ceremonial knives. “I think it needs to be looked at” the supposedly centre-left alternative replied. He even managed the “awkwardly and abjectly” part, waffling about how forcing a minority to choose between a religious duty and leaving their homes would have to be done “carefully.” Never mind that legislating based on one incident is virtually never a good idea. Never mind that the knife used to kill Novack was nothing like the small kirpan most Sikhs carry. Those in power just cannot seem to tell the fascists no. 

But none of this is inevitable. “What’s next? British commentators ask in shock. Will the mainstream media be discussing global plots to replace the white race? Yes. That’s what comes next. I’ve been saying this for some time. It’s less ‘pattern recognition’ and more ‘recognising there is a pattern.’ If we don’t start to coordinate a response it's that, then concentration camps, then death camps. 

If.

You’d never know it, but Reform is actually pretty vulnerable right now. They have about a quarter of the vote and seem stuck there. This is not the will of the true volk, but an ugly, angry minority with the support of international elites. A sustained, aggressive, pushback from our mainstream press, or real public outcry against them, could prove devastating. They are a creature of press hype, and could be destroyed by the favourable terms our elites have given them being withdrawn. 

And that’s the thing about fascism: it needs collaborators. In 2015, Trump’s movement was probably a similar percentage of the country. They required the cowardice of traditional conservative leaders and institutions, or the media ‘both sides’ing his fascism and Hillary’s failings. The ideology is very, very dangerous indeed, but it can’t really get traction without centrists dismissing the danger, without the media sanitizing it, without the public at large muttering some disapproval and moving on. 

For that reason, it’s an opportunistic predator. More scavenger than hunter, despite its ferocious self-image. At least in its early stages, it prefers to attack the weak, isolated, members of the herd. Safety lies in closing ranks against it, leaving no one behind. 

Fascist strategy, both nationally and internationally, is something like ‘reconnaissance in force’: attack lightly everywhere, then concentrate on where your opponent falls back. Remember when Republicans were obsessed with changes to a Dr. Seuss book? They were really outraged for a bit, then just . . . moved on. This is how they operate. It can seem chaotic in the moment but there’s a logic to it. 

This is one of the reasons attacks on trans people have been central to them on every front they’re fighting on. Partly this is ideological—they believe in innate gender roles and trans people's very existence is a refutation of that. More mundanely though, it’s the minority the center-left the world over has shown the most willingness (and at times enthusiasm) to abandon. So that’s who they go after. 

The same logic applies in their international strategy. The UK is now very clearly the most ‘at risk’ democracy after the US, precisely because we’ve stood up to it the least. We have the most compliant media, the center-left party most committed to appeasement, the public most willing to turn a blind eye. International fascism is throwing a lot of money at anti-trans groups in the UK, likely because of the amount of influence they’ve been able to have on the media and government. Elon Musk has intervened in many countries' politics, but seems increasingly focused on the UK. Again, probably because his racist conspiracy theories are gaining the most ground here. 

The eye of Sauron is upon us, but in many ways it’s because we’ve invited it. 

Reconnaissance in force is a simple enough strategy. Opposing it is also simple—hard work, but not conceptually complex. For all that they project strength, fascists will usually back off a target if they don’t make headway. So create a united front. Show strength across the line. And then punish your opponent for overextending. Go on the counterattack whenever possible. Their strategy is based on moving forwards, they’re not good at defending. 

We’re in a lot of danger right now. But it’s worth being clear-eyed about it. All too often fascism’s resurgence can feel inexplicable, and hence unstoppable. If we think of it as some mystical demon of the old world, sent to punish us for our sins, our first instinct will be to assume it cannot be real, our second to cower before it. Again and again, British elites have demonstrated this abject mixture of denial and cowardice. 

But it’s a movement of people like you and me, motivated by dumb and dangerous, but easily debunkable, ideas. Their political strategy is simple and workmanlike. Effective only when you haven't clocked how they proceed. We face a predator to be sure, but a wolf, not a werewolf. We need to stop superstitiously offering up villagers to the beast, one by one, as part of some ritual our abusive elders insist upon. And, instead, gather everyone up to trap and kill it.

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Featured City Sikhs Team hosting the Sikhnet Team from America in the UK Parliament, by Englishseva

War is bad. Don’t start one. But we’re already in a class war and we’re losing. Where by “we” I mean most people; the winning side comprises, roughly, the richest 0.1% of the population, who are morphing into a hereditary aristocracy. [I mean that, see below.] So, what to do in a war one didn’t choose?

How bad is it?

It’s really bad, and getting worse fast. I recommend cruising through Wikipedia’s excellent article on Distribution of wealth; maybe jump straight to the Wealth inequality section. I’ve pulled one helpful graph, sourced from Oxfam, into the margin. The article has loads of other statements of the form “The richest X compared to the poorest Y have Z times️ as much.” The values of X, Y, and Z are uniformly saddening.

As a resident of a wealthy West-Coast New-World city, the effects of pathological inequality are in my face every day: Bentleys gleaming on the road, ragged people huddled in the rain cadging cash outside the drugstores, thousands homeless.

Why is that bad?

It’s not only a sinful by any sane definition of sin, but stupid, inefficient, and damaging. I turn once again to Wikipedia: Effects of economic equality. I’ll add one pointer to an effect that is less obvious: It exacerbates the unaffordability crisis.

One effect of the increasing imbalance between the ultra-wealthy and everyone else is the emergence of, effectively, a hereditary aristocracy. “Wait!” you exclaim, “How about high income-tax rates for the wealthy, and inheritance taxes?” You might well ask. It turns out those are no longer operative. I’ll get into details about that, but first…

A parable: Grant Gustavson

I am, as previously related (see Southsiders and Fútbol Joy) a fan of the Vancouver Whitecaps Football Club (VWFC) who play in Major League Soccer. It’s affordable, light-hearted, high-drama, high-quality entertainment and has lifted my spirits notably in the recent dark years.

However, it appears that Vancouver’s about to lose the Whitecaps, at the whim of a Vegas-based purchaser, of whom The Athletic writes:

The potential buyer is Grant Gustavson, the son of Kentucky billionaire Tamara Gustavson and grandson of B. Wayne Hughes, founder of Public Storage, according to multiple sources with knowledge of the discussions. Forbes estimates Tamara Gustavson’s net worth at $8.5 billion.

Gustavson, 30, lives in Las Vegas. A graduate of the University of Southern California, he has been involved with the athletic department at his alma mater and helped to develop the Name, Image and Likeness (NIL) program there. He continues to work with the USC basketball program and is also involved in the management of his family’s farm, “the country’s premier thoroughbred farm with decades of storied champions throughout the stables.”

So this fucking youngster, who has life experience working at the gym at USC (where his Mom’s on the Board of Trustees) and helping out at the family farm, can reach out his mighty hand and snatch away a popular pleasure from another nation. Droit du seigneur in action.

Staying rich

I highly, highly recommend Our Tax System Should Make You Furious from the NYT. By “our” they mean America’s. First, it addresses the canard that the tax system is actually progressive; people who like things the way they are like to say “Forty percent of people pay no federal income taxes, and then the top 1 percent pay 40 percent of the income taxes.” (Tl;dr: Somewhere between highly misleading and a big fat lie.)

Second, it explains the mechanisms by which generational wealth is accumulated and preserved, effectively in perpetuity. People like Bezos and Musk pay basically no income tax, and the way they do it isn’t complicated or hard to understand.

There is actually a family of financial products called Dynasty Trusts. The first ad that popped up in response to my Web search had the marketing copy “Dynasty trusts: preserving family assets for future generations”. Or, put another way, “Dynasty trusts: Starving beggars in your neighborhood.”

Revenue from the rich

So what can we do about it? Tax expert Ray Madoff, the interviewee in the “Should Make You Furious” piece, has smart things to say. Then there’s Thomas Piketty: “Opponents of the tax on the ultra-wealthy lack historical perspective”.

The common thread is taxation of wealth not income, because the arcane abstractions of accounting make income too easy to hide. The argument is that a wealth tax of say 2%/year, starting at a threshold of a few tens of millions, won’t impair the lifestyles of the seriously wealthy, but still yield systemically important public-sector revenue

Also worth reading, from the International Monetary Fund: Game-Changers and Whistle-Blowers: Taxing Wealth. Among other things, it reports that the proportion of wealth that is hidden in one offshare tax shelter or another is pretty small, ranging from 8% in the developed countries up to 30% in poor nations. Apparently it’s harder to hide wealth than income.

Good karma

If wealth taxation won’t touch wealthy lifestyles and will help build a safer, calmer, happier society, it feels sort of irrational to oppose it. And some of the wealthy don’t. My favorite example of this is Avi Bryant. Check out I’m a Millionaire. Tax Me More, Please and Meet a millionaire who wants Canada to tax the rich. [Disclosure: I made a nice little chunk of money when my tiny investment in Avi’s startup turned into pre-IPO Twitter shares.] I’m also interested in Patriotic Millionaires, which Avi founded.

Also worth checking out: Jeff Atwood’s Stay Gold, America and Launching The Rural Guaranteed Minimum Income Initiative. So, not all of the 0.1% are The Enemy.

It’s not complicated

Around the world, governments are running up huge debts and cutting back social programs because the taxation revenue doesn’t come near the amount it requires to provide a livable society. So the choice is stark: Cut and slash deeper (read: starving beggars) or find more money. There’s lots of money out there basically just playing financial games; it needs to be put to work doing something useful.

This package of ideas should be easy to sell to voters. Of course, resistance will be ferocious and extremely well-funded. But the currently-winning side in our class war is actually a soft target. Target for what weapon, you ask? Democracy. No need for tumbrils and guillotines. Yet.

At time of writing, the Roberts Court is hearing Donald Trump’s preposterous challenge to birthright citizenship—a constitutional knot so neatly tied that not even the court that gave us Plessy could feign to find fault with it in 1896. Furthermore, Jodi Kantor and Adam Liptak dropped a major report with the New York Times, exposing the internal reasoning, or lack thereof, that ultimately led to the modern “shadow docket.” This strategy has been used to grant President Trump numerous victories in his second term while sidestepping the transparency, deliberation, and jurisdictional sequence the court has historically preferred. And make no mistake: it is a strategy. Along with originalism and the major questions doctrine, the Roberts Court has given itself a raft of new or enhanced tools with which to empower conservatives and thwart liberals. Such developments reveal a remarkably rapid decay undermining the legitimacy of the Supreme Court.

Given the dangerous disregard for the Constitution this court has demonstrated, it’s worth taking a deeper look at the highest court in the land: what it is, and what it could be. 

The Supreme Court has always been tricky. Its principal role in our republic—judicial review, which gives it the power to overturn acts of Congress—is not enumerated in the Constitution. Neither is its size nor the responsibilities of its justices, both of which have changed much over the centuries—from one chief justice and five associates, splitting their time riding circuit across their new country then returning to drafty, borrowed chambers in Philadelphia as the Supreme Court, to nine full-time justices serving exclusively in their handsomely appointed neoclassical temple in Washington. Most of its features have evolved or accreted over time, and unlike the expansive language of Article II that establishes an independent executive, the Constitution explicitly places the courts almost entirely under the statutory authority of Congress.

Authority which Congress has used. Many times. Throughout our history, Congress has wielded its power to discipline, manipulate, and sculpt the Court, sometimes creatively. In the very case that established the power of judicial review, the outgoing Federalist Congress decided to pack dozens of newly formed lower courts with judges hostile to the incoming Democratic-Republican majority and the new president, Thomas Jefferson. Jefferson, through his Secretary of State James Madison, tried to block the appointments with a procedural trick, which eventually produced Marbury v. Madison. 

Then consider when, furious with Andrew Johnson’s opposition to Reconstruction in 1866, the Radical Republican Congress passed a law abolishing each Supreme Court seat after it fell vacant. The effect was that Johnson, for all the damage he did do, never appointed a Supreme Court justice, and the bench fell to seven. When Ulysses S. Grant won the presidency in 1868, Congress expanded the court back to nine, where it has remained since.

And in the wake of multiple, generationally mendacious rulings, the time has come for Congress to take up its chisel and sculpt the court again. It cannot continue in its current form. From Citizens United to the Dobbs decision, from the anti-democratic confession that is Trump v. United States to the act of merely hearing a challenge to birthright citizenship, the Roberts Court has demonstrated an unmistakable and unprecedented preference for oligarchy and concentrating power in the person of the president. They have invented new standards, twisted old ones beyond recognition, played Judas with our Constitution, and Thrasymachus with our republic. These rulings are not criminal. But they are politically delegitimizing. Approval ratings (not something the court has often found itself worried about) are at historic lows in recent years, deeply polarized, and thermostatic.

This is a solvable problem, but a problem perpetuated by one party will not find a solution bursting with bipartisan collegiality. The Roberts Court is the final product of a partisan industry dedicated to the anti-democratic transformation of American society, and all its conservative justices are products of that pipeline. It’s a problem caused by conservatives and conservatives are, for now, quite happy with it. So, it will fall to Democrats to fix it. 

The most common proposal is to tie the number of justices to the number of circuit courts, which was the norm until 1869, and would give the next Democratic trifecta a Supreme Court of thirteen justices to rebalance. This is a measured response. Judicious, even. But not sufficient. Court capture has proven a reliable strategy for permanently locking the partisan preferences of a minority into our constitutional order. While it would take generations to achieve again, simple court expansion doesn’t alter these incentives. It simply moves the line of scrimmage further from the goalposts.

No. I would like to propose something entirely different. 

Let’s break up the Supreme Court. 

This is a two-part proposal, and the justifications for each part are obvious in isolation, but their real potential is only unlocked when used in tandem. And while the flashier part is breaking the power of the Supreme Court, that’s actually second in the order of operations. Before we can break up the Supreme Court, we need to fix the lower courts.

Because even if it’s less sexy, and even though the highest court in the land enjoys more power than ever in its history, the state of federal justice in general has seldom been sadder. Lower courts are chronically overburdened and underfunded. Taking a case to trial often takes years, turning defendants' lives into a precarious waiting game—one they may well spend in pretrial detention, unable to work, unable to meaningfully live. This surely contributes to the appalling fact that over 90% of guilty verdicts result from plea deals, which are rife with prosecutorial gamesmanship, perpetrator-seeking, and horse trading. It never fails to amaze that these conditions don’t in themselves constitute an unconscionable violation of the Sixth Amendment. 

This issue is old. But unlike the political difficulties of the Supreme Court, it’s not especially partisan. The fundamental problems our federal judiciary faces are capacity and resources. At almost every stage, Congress has been slow to expand the courts of appeals and glacial at increasing their budget. Even as the Warren Court expanded defendants’ rights and Nixon launched the Drug War, as the need for trials, attorneys, judges, and resources swelled, Congress was slow to act. The last time a new court of appeals was added was 1981, when the population was roughly 30% smaller than today. There isn’t enough money and there aren’t enough courts and at no time on record has there ever been enough of either.

As for the Supreme Court, setting aside the extent to which it is thoroughly captured, it has also accumulated too much power. Judicial review has grown into something more akin to an exclusive, proprietary claim over constitutional interpretation such that legislative agendas with clear democratic mandates can be enacted, only to be put down by our self-appointed national council of wizards. As recent developments with the shadow docket prove, they no longer even feel the need to justify themselves to posterity. Laws, regulations, and government programs with majority support enacted decades ago can be undone in near total silence, with no more than a sparse paragraph announcing the decision. Our sclerotic Congress has ceded to this court a crippled but dangerously anti-democratic legislative power. This too is not new. But with thorough Republican capture locked in for a generation and with the shameless partisanship (and in a couple of cases, open corruption) of their justices, it’s simply more obvious.

A sweeping overhaul of the federal courts is necessary, one that addresses both of these travesties simultaneously. And because the framers subordinated the courts so completely to Congress, this can be done without the need for any amendment, with nothing but a simple majority in both chambers and the president’s pen.

It’s worth reiterating that everything here is well within the statutory power the Constitution grants to Congress and, in fact, the text of Article III establishing the courts is so light, it’s worth quoting sections 1 and 2 in full:

Article III, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Article III, Section 2

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Essentially, anything except the existence of a Supreme Court, its unique original jurisdictions, its final appellate jurisdiction, and the general principle that federal judges serve lifetime appointments, is entirely at the discretion of Congress. With this power and the state of the justice system at large in mind, let’s reshape the Supreme Court for the 21st century:

It begins with the courts of appeal. Given that we have never achieved adequate court capacity, we should stop adding one or two a generation, and double them immediately—from thirteen to twenty-six. The number of district courts beneath them should be increased proportionally. Also, the budgetary requirements to reasonably meet the constitutional guarantees of the Sixth Amendment should be assessed and rolled up into the annual budget. This would likely be necessary to avoid the judicial equivalent of the problem of adding just one more lane to a highway, but that’s a different essay entirely. For now, we’ll focus on the structure of the courts themselves.

Let’s say the district courts are doubled, like the courts of appeal. And for the sake of argument, let’s say the number of district and appellate judgeships also doubles with the total number of courts. We’ll also ignore the Federal Claims and International Trade courts for this exercise, to keep it neat. 

That gives us twenty-six circuits, 188 districts, and 1,730 Article III judgeships, greatly expanding the capacity of our federal justice system for case throughput, faster verdicts, and the resolution of appeals. Plea bargains instantly become less tempting, and prosecutorial and law enforcement conduct are introduced to greater judicial scrutiny. If paired with budget reforms, it can also rebalance the power between prosecutors and defense attorneys.

If that were all these reforms could accomplish, they would be well worth pursuing in a justice system as strained as ours. But if we take the second step and break up the Supreme Court, they also unlock the potential for a powerful reform to judicial review.

Since January 2025, the two greatest bulwarks against the second Trump presidency have been lower court judges and the American tradition of jury trials. Breaking up the Supreme Court combines both to create an entirely new vision for Article III—one that embodies our traditions of justice and democracy far better than the First Street mystery cult and, combined with dramatic court expansion, will give American justice a level of accountability, legitimacy, and scale it has never known.

When I say “break up the Supreme Court,” I mean that we should establish judicial review by sortition. A Supreme Court empaneled with a random draw from the entire federal judiciary. A jury of judges.

There are currently nine justices on the bench. Going forward, each will be assigned to one of the twenty-six courts of appeal. This will be their primary role going forward. For each case referred to the Supreme Court, a bench of nine judges drawn at random from the full federal judiciary will be empaneled to hear and decide the case. After deciding the case, they will return to their respective benches until called upon again. Supreme Court Justice is now a temporary role.

The appeal here is ancient. Sortition, or lottery, as a means of making decisions (including conducting democracy) is the tradition from which our jury trials emerge, and stretches back at least as far as Athens. Its chief virtues are that it maximizes the wisdom of the crowd–which is one of the chief instrumental arguments for democracy itself–and it leverages the incorruptibility of chance, which is the observation that you cannot bribe an official who does not know they will be in position to be bribed. In short, a decision made by a random selection from the larger body of decision makers has a higher chance of better outcomes than one than one made by a fixed group of specialists, and it’s difficult for billionaires to know which judges need a lavish yacht cruise to convince them of the merits of ruling a certain way on certain cases if the judges themselves don’t know which cases they’ll be ruling on.

This method of “judgeship by jury” gives the Supreme Court a more composite character, ensuring that the broadest possible cross section of jurisprudence is represented. It removes the prestige and power that have accrued to our permanent justices. It recenters judicial review as a historical process shaped by the full sweep of the judiciary, rather than the fixed preferences of a permanent bench. It is nonpartisan, at least insofar as it grants no party any more power to reshape the composition of the judiciary than the electorate does. And when drawing from the expanded judiciary we’ve already established, it pulls from a very deep roster of expertise and experience, and as wide a range of diversity of thought as our duly elected representatives are willing to confirm.

In my view, this plan in its entirety should be the first order of business for any future Democratic trifecta. The Roberts Court, supine and submissive as it is to its Caesar of choice, will suddenly rediscover its constitutional role again the moment the White House changes the color of the drapes. Especially if the new Congress arrives with a demonstrable interest in court reform. As they did with the major questions doctrine and the shadow docket under Obama, they’ll invent new ways to fight their partisan battles if necessary, because partisan warriors are what they are. And after keeping the patient embers of corruption smoldering through another Democratic administration, they’ll simply resume their march toward tyranny and oligarchy. They will never stop. Enough. Break their power and begin an immediate transition to a better system of both justice and judicial review. It will take time to confirm so many new judges, so we should start right away. The new system will begin better than we’ve ever known and only improve with time, while the old, broken one will trouble us no more.

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Featured image is Circuit judge Hal W. Adams riding mule to avoid high water

Late last year, the fantasy novelist Brandon Sanderson gave a talk at Dragonsteel Nexus, an annual conference organized by his media company. It was titled, ​“The Hidden Cost of AI Art.”​

As Sanderson explains, early in his address: “The surge of large language models and generative AI raises questions that are fascinating, and even if I dislike how the movement is going in relation to writing and art, I want to learn from the experience of what’s happening.”

Sanderson makes it clear that he disapproves of AI-generated art (“my stomach turns”), but he wants to understand better why this is the case. To do so, he begins considering and then ultimately dismissing a series of common objections:

• Does he dislike AI art because of the economic and environmental impacts? “Well, those do concern me, but if I’m answering honestly, I would still have a problem with it even if AI were not so resource hungry.”
• Does he dislike AI art because it’s trained on the work of existing artists? “ Well, I don’t like that. But even if it were trained using no copyrighted work, I’d still be concerned.”
• Does he just hate the idea of a machine replacing a person? Sanderson references the folk tale of John Henry attempting to beat a steam drill in a tunnel-digging competition that culminates in Henry’s death. “We respect him, but as a society we chose the steam drill. And I would too…The truth is, I’m more than happy to have steam engines drilling tunnels for me to drive through.”

So what is it?

Sanderson ultimately lands on a more personal reason. Talking about his struggles with his first (failed) book manuscripts, he identifies the key value of art: it changes the artist who attempts it. As he elaborates:

“Maybe someday the language models will be able to write books better than I can. But here’s the thing: Using those models in such a way absolutely misses the point, because it looks at art only as a product. Why did I write [my first manuscript]?… It was for the satisfaction of having written a novel, feeling the accomplishment, and learning how to do it. I tell you right now, if you’ve never finished a project on this level, it’s one of the most sweet, beautiful, and transcendent moments. I was holding that manuscript, thinking to myself, ‘I did it. I did it.’”

As a writer myself, I’ve also been thinking about this question recently. I like Sanderson’s take, but I’ve been developing one of my own. I understand art to be an act of deep human communication, in which the artist uses a tangible medium, such as a page of prose or a painted canvas, to transmit a complex internal cognitive state from their brain to that of their audience.

It’s telepathy. And it’s one of the most beautiful and human things we do.

This makes the idea of reading a book written by a language model, or watching a film generated by a prompt, intrinsically absurd, if not anti-human. It’s the heroin needle providing a quixotic simulation of love.

What really struck me about Sanderson’s talk, however, was his conclusion. If art is deeply human, he argues, then it’s up to us to define it. “That’s the great thing about art – we define it, and we give it meaning,” he says. “The machines can spit out manuscript after manuscript after manuscript. They can pile them to the pillars of heaven itself. But all we have to do is say ‘no.’”

I’ve noticed a trend in recent AI commentary toward a certain nihilistic passivity. You probably know what I’m talking about – the now popular style of essay in which the author, with a sort of worldly weariness, lays out some grim scenario in which AI destroys something sacred, and then sort of just leaves it there, like a cat dropping a dead bird on the doorstep.

I’m getting tired of this meekness.

Sanderson reminds us that we have agency. In the areas that matter most, it’s us, not the whims of Sam Altman or Dario Amodei, that determine how we shape our existence. All we have to do is say “no.”

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Correction:

In last week’s AI Reality Check episode of my podcast, I said the following:

“If you go back and look at the release notes for Anthropic’s earlier, less powerful opus 4.6 LLM, they say the following: their researchers used Opus to find, quote, ‘over 500 exploitable zero-day vulnerabilities, some of which are decades old.’ And let’s stop for a moment because that note, which was hidden in the system card for opus 4.6, is almost word for word what anthropic said about Mythos.”

Some of this wording was sloppy, so I want to clarify it here. I was referring to this report on Opus 4.6, which Anthropic published the same day it was released. This is not technically the system card for Opus 4.6, but it is accurately described as release notes (or perhaps supplementary release notes).

This report said: “Opus 4.6 found high-severity vulnerabilities, some that had gone undetected for decades.” In another place, it said: “So far, we’ve found and validated more than 500 high-severity vulnerabilities.” Both the title of the report and the conclusion refer to these vulnerabilities as “0-day.”

The specific quote I provided, however, does not appear in the report. It’s actually a summary of the report from this tweet. In my opinion, the summary is accurate, but the way I worded the above implies that it was actually found in the report, which it was not.

Thank you to the AI researcher who pointed out these issues. I appreciate corrections! You can always send concerns or notes to podcast@calnewport.com.

The post Brandon Sanderson vs. AI Art appeared first on Cal Newport.