Skip to main content

The Supreme Court and the Prisoners’ Dilemma


During Tuesday’s interesting first presidential debate, when the question of refilling the now empty Supreme Court seat was presented, Biden maneuvered his way around the answer without a clear final response regarding what he would do if elected, while Trump loudly accused Biden of packing the court if given the opportunity. The author of “Joe Biden Should Promise to Pack the Supreme Court to Save it from Partisan Wars”, David A. Kaplan, argued that the situation we find ourselves in is a real-life version of the prisoner’s dilemma which, consequently, encourages Joe Biden to go ahead and pack the court. Therefore, I will discuss the connection between the prisoner’s dilemma and the current question of the vacant supreme court justice seat in regard to the argument Kaplan put forth.

As we have learned in class, the prisoner’s dilemma describes the choice that two prisoners are faced with: to confess or not to confess. The option with the highest payoffs (less time in prison) occurs when both prisoners decide not to confess. The option in which one player gets zero payoffs and the other gets high payoffs occurs when one chooses to confess and the other doesn’t confess. The option with the medium amount of time in prison is when both prisoners choose to confess. Rationally, both individuals deciding not to confess results in the best outcome: the least amount of time in prison. However, confessing is in fact the dominant strategy (the best response for an individual regardless of what the other does) in this scenario.

Kaplan claims that the historic tendency for presidents to pack and unpack the supreme court based on party lines proves that cooperation is impossible and thus introduces the tit-for-tat strategy. To illustrate the prisoner’s dilemma in this situation, a simple payoff matrix for this situation could be set up by Player A (Democrats) and Player B (Republicans). Each player has the option to pack or not to pack the court when they are in office. If both players choose to pack the court when they have the chance, they will both have an average number of payoffs (with payoffs possibly representing later Supreme Court decisions favor them). If both players choose not to pack the court when they have the chance, they will both have the highest number of payoffs. If one player decides to pack the court while the other doesn’t, the player that decides to pack will have high payoffs while the other has zero, and vice versa. Therefore, intuitively, it would make the most sense for both players to cooperate and not pack the court, as they will share high payoffs. However, as in the prisoner’s dilemma, the dominant strategy in this matrix is to pack the court. A large part of the prisoner’s dilemma is that trust and fear play large roles; if one player does not trust the other to not pack the court, then they will also pack the court. In the current political situation, and with regard to how similar situations have been treated in the past (2016 empty seat), there is absolutely no trust and a large amount of fear at play. Therefore, packing the court is the rational response as it is “measured and proportional” (Kaplan). Once both parties consistently began to fail to cooperate and not pack the court, Kaplan states that tit-for-tat became the correct strategy in which each player mimics what the other player did before. In this case, if one party packed the court before, the other party will also pack the court when they can.

Kaplan’s article applied a strategy in game theory to a prominent topic in today’s political arena to argue that it is pointless for Democrats to continue resisting a “turn to the Dark Side” and it is time to fight “fire with fire” and publicly promise to pack the court after the election (Kaplan).


Leave a Reply

Blogging Calendar

October 2020