Revitialized SCOTUS and Skin in the Game

As the SCOTUS has wrapped up its 2019 season, several opinions have flowed out over the last few weeks.  Considering these decisions, the right and the left have both had cause for grief and celebration.  Much of the attention has been focused not on the substance of the decisions, not on the most recent member named Kavanaugh, but on the new “swingers”…namely Roberts and Gorsuch. 

Conservatives thought that when Roberts and Gorsuch were confirmed, the right was well on its way to putting in place a solid conservative majority on the SCOTUS.  In spite of historical lessons that begged caution when trying to predict the future opinions of SCOTUS members, the conservative movement felt confident that with one more strategic nominee forthcoming (Kavanaugh),  future SCOTUS decisions would exhibit a strong bend to the right and quite possibly unwind some of the liberal decisions made over the last few decades.  Needless to say, those expectations have come in below the bar. 

I view myself as a conservative Independent.  I admit to an affection for SCOTUS decisions that reflect a conservative point of view.  However, my primary concern regarding the business of the SCOTUS is that they adhere to what I perceive to be their rightful place in the hierarchy of our government; that being the pinnacle of the Judicial Branch.  Being a non-lawyer, a quasi-literate civics scholar, and certainly not the sharpest knife in the drawer, I oftentimes have difficulty analyzing SCOTUS decisions.  I read reports from varied sources that I respect, try to understand the intricacies of stare decisis, and attempt to make some semblance of sense out of the political element that has become part and parcel of all things SCOTUS.  But for most of us common folk, even these minimal efforts leave us far short of having a valid appreciation for the impact that SCOTUS decisions have on our everyday lives and the complexities built into each one of them. 

Therefore, I view most SCOTUS decisions in a broader sense rather than a detailed sense.  I look for the basic issue, the precedents that may apply to the case, and the ways that the issue might relate to my life and the lives of my family and friends.  I readily accept the fact that these SCOTUS Justices, both conservative and liberal, are among the best and brightest at what they do and I try to refrain from questioning their qualified wisdom.  What I have come away with from this recent SCOTUS season is a reaffirmation of my faith in their self-concept and the ongoing adjustment of their role in our tripartite government. 

I am encouraged to see that both conservatives and liberals are complaining about SCOTUS decisions.  If both are having issues, then the Court is obviously not conducting business in a monolithic fashion.  When Roberts and Gorsuch have determined to side with the four liberal Justices in forming a majority, it has more times than not been on the basis of principle and not on process.  We have a President and Congress to come up with process; leave the principles to the SCOTUS.  To a layman, I see these occurrences as an effort to re-establish the proper role of the SCOTUS as the arbiter of a law’s validity consistent with the constitution.  I see the SCOTUS as making a gradual and determined effort to remove itself from its activist role of recent years and re-establishing a more traditional examination of constitutional adherence.  I find this refreshing and, in my humble opinion, a return to normal.

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There is an old saying about “skin in the game”.  The most general explanation for this term is one that implies that when a person has some degree of personal risk in a proposition, they are more prone to be actively involved in its execution than they would be in the absence of said personal risk.  In my life, I have found this to be true.  I and my family have been truly blessed, but we are people of modest means.  Nonetheless, I can assure you that when my resources were involved, I paid a lot closer attention to a matter than I did when the results were simply gratuitous.  When considering the many ways and systems of today’s society, we as a people have lost an appreciation for this tried and true premise.

I am truly amazed at the number of employee benefits programs that are based on the employer accepting the total cost of the benefit.  These benefits might range anywhere from a fixed pension plan to health coverage.  Our federal government has, to my knowledge, always insured that the civil service employee had, to varied degrees, some skin in the game when it came to employee benefits.  Now you might argue about the proportionality of that skin…whether it was sufficient or not compared to the employer’s share; but the point is that it was a shared expense.  The old Civil Service Retirement System (CSRS) was believed by most to be an overly generous gift to federal workers.  It was, in fact, a fixed pension plan that required a contribution from both the employee and the employer over the course of their career.  When the CSRS was replaced in the mid-80’s by the Federal Employee Retirement System (FERS), that sharing of the benefit expense was maintained and even broadened to place a greater proportionate share on the employee.  It was responsible, it was transparent, it was flexible, and it was fair.  Federal employee health benefits are much the same proposition.  The expense is a shared effort between payroll deductions from the employee and a supplement from the employer. 

This same principle can be applied to government social programs such as the workfare provisions that are occasionally discussed.  There is reason to all things and changes must be carefully considered prior to implementation; but there is no doubt that it is far easier to support those who will readily help themselves than those who will not.  There is, and always should be, a place for compassion in our government.  But there should also be a companion parcel of accountability and personal responsibility.  As imperfect as it is, our government gets a lot of things right.  As I previously mentioned, their FERS is a model that should be used a lot more by others.  We have a MediCare program that requires a monthly premium from its beneficiaries; but we also have a MediCaid program for those with limited resources and special needs.  It does not, and should not, have to be an either/or proposition.  There simply must be some sense of fairness and rationality in the legislative process that creates these programs. 

Over the last decade, we have witnessed numerous retirement plans enter into crisis because the commitments made to the retirees could not be supported by the active employee contributions to the system.  To put it bluntly; promises were made that could never be kept.  There was more money going out than there was coming in.  These retirement systems have ranged from teacher plans to state employee plans to municipality plans.  The overwhelming majority of the plans feature a common trait…no skin in the game.  The pension is furnished with either no employee contribution or an unrealistically low amount; the health benefits are paid solely by the employer; and the plan is far too generous when compared to the plans that most workers in the marketplace participate in. 

The first litmus test that should be applied to a benefit plan is fairness.  Exactly what benefits should be offered and at what level should they be set.  The next requirement should be skin in the game.  The financing of said plan should be a shared expense with both the employee and the employer helping to pay the bills.  And finally, the plan should be sufficiently flexible to allow individual employees to contribute according to their own personal inclinations.  Of course, there should be minimums and maximums applied to help guarantee the viability of the program; but an employee should have the discretion of contributing more or less, based on their desires.  And most importantly…the employee must be held accountable for that decision and not be bailed out by the system if they err in judgment. 

Once a benefit program is established based on this premise, it can reasonably be adjusted in future years to reflect necessary corrections due to economics and other future developments.  The adjustments can have a beginning date that makes the new deal effective for any employee entering on board after that inception (change) date.  This is imminently fair to those employees who have spent a career under the promise of the original arrangement.   We could call this a mid-course correction option.  I am astounded by both the ridiculous generosity of some of the imperiled retirement plans and am equally shocked by the refusal of the plan beneficiaries to even consider fundamental and equitable adjustments to the programs.  At some point in the discussion of a retirement plan in crisis, a binary choice becomes imminent.  You can either let the train continue careening down the tracks out of control and risk the loss of benefits (cents on the dollar) for both retirees and active employees…or…you can make common-sense and rational adjustments to the existing plan that will make it feasible for both the employer and the employee.  A plan that provides that everyone involved has some skin in the game.

Bonus Time!  Imagine combining the talents of Steve Winwood, Will Jennings,  and Whitney Houston.  Something like this https://www.youtube.com/watch?v=dTYOkcRH220.  Oh man…she left us far too soon.