All the President’s Crackpots

All the President’s Crackpots

Richard A. Epstein’s crank theories about the coronavirus are influential thanks to a powerful network of right-wing legal activists.


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In the policy battle over the response to the coronavirus pandemic, much depends on who has Donald Trump’s ear. All presidents receive conflicting advice, but Trump in particular is susceptible to the last person who talks to him. During his press conference on Sunday, Trump seemed to accept the position of medical experts like Dr. Anthony Fauci, who insist that the pandemic demands a no-holds-barred response. But Trump also said, “We had a lot of people, people were saying maybe we should not do anything, just ride it. Ride it like a cowboy. Ride that sucker right through.” Trump himself at least on occasion has echoed this line of thought, with his suggestions that social distancing policies should be ended as soon as possible, perhaps even in time to allow the churches to be full on Easter.

The idea that the medical establishment is overreacting to the pandemic continues to be strong in some segments of the political right, especially among libertarians. As The Washington Post reported on March 23, “Conservatives close to Trump and numerous administration officials have been circulating an article by Richard A. Epstein of the Hoover Institution, titled ‘Coronavirus Perspective,’ that plays down the extent of the spread and the threat.”

Trump wavers back and forth on coronavirus policy because he sometimes listens to medical experts and sometimes to aides who are offering distillations of Epstein’s argument.

It’s strange that this article had such an impact, because Richard A. Epstein is not a medical expert but a legal scholar. He’s one of the most influential members of the law and economics movement that has worked since the 1950s to persuade judges to apply libertarian economic theories about cost and benefit in rendering legal judgements. Thanks to the institutional networks created by the Federalist Society, the law and economics movement has played a major role in pushing American jurisprudence to the right.

Even in Federalist Society circles, Epstein is an extremist. In his book Takings (1985), he argued for an expansive view of property law that would require generous compensation to property owners for standard procedures like zoning and wetland regulations, rendering them prohibitively expensive. The purpose of the book was to advocate using the courts to undermine any possibility of environmental policy. In his subsequent book Forbidden Ground (1992), he pushed for the repeal of antidiscrimination laws going back to the 1964 Civil Rights Act. Epstein made the case that employers should be allowed to hire and fire based on race.

The same stance of radical opposition to government intervention informs Epstein’s objection to shutdowns during the pandemic. But Epstein isn’t making just an ideological case. His article is also informed by a heterodox theory of biology that can properly be described as kooky.

In his “Coronavirus Perspective” article, posted on March 16, Epstein argued that the total number of American deaths would be 500. This was quickly overtaken by events, and the number of confirmed American deaths now exceeds 2,000. Epstein revised his estimate up to 5,000, but that’s likely to also be surpassed shortly. Epstein himself admits it might be “somewhat optimistic.” On Sunday, Trump himself, along with Dr. Fauci, warned of more than 100,000 American deaths.

Epstein’s underestimation of the number of deaths was no mere technical error but sprang from a fundamental theoretical mistake. He believes that it is the nature of viruses to become less virulent over time. He argues, “The adaptive responses should reduce the exposures in the high-risk groups, given the tendency for the coronavirus to weaken over time.”

Isaac Chotiner recently interviewed Epstein for The New Yorker and rightly pushed him on this point. “Well, what happens is it’s an evolutionary tendency,” Epstein asserted. Medical experts contacted by The New Yorker strongly disputed this alleged “evolutionary tendency.” Albert Ko, a professor of epidemiology and medicine and the department chair at the Yale School of Public Health, stated flatly, “There is absolutely no evidence for that.”

Epstein’s idiosyncratic theory applies to other diseases as well. He believes, again contrary to mainstream science, that the AIDS virus became milder over time. When questioned by Chotiner about pushing ideas that have “no scientific back-up” Epstein responded, “I’m giving you this as a theory.” Epstein added, “I’m not an empiricist,” but insisted that he’s working with a valid “evolutionary theory.”

According to Epstein, “I’m taking standard Darwinian economics—standard economic-evolutionary theory out of Darwin—and applying it to this particular case.”

This claim of “Darwinian economics” might seem bizarre, but it is in keeping with Epstein’s intellectual lineage. Epstein has been much influenced by the economist and social theorist F.A. Hayek. In his late-period work Law, Legislation and Liberty (published in three volumes from 1973 to 1979), Hayek tried to ground his arguments for a minimalist state in evolutionary theory, arguing for a congruence between Adam Smith and Charles Darwin.

Hayek also toyed with the ideas of Darwin’s precursor Jean-Baptiste Lamarck, who contended that some acquired traits could be passed on from one generation to the next. Epstein clearly supports the neo-Lamarckian belief in a quick evolution over the span of one or two generations. As he tells The New Yorker, the evolutionary tendency of viruses to weaken “takes time. It could be a week. It could be a month. It could be longer.”

As he gets taxed by Chotiner, a master of the forensic interview, Epstein becomes increasingly agitated. Toward the end, they have a testy moment:

[Epstein:] You know nothing about the subject but are so confident that you’re going to say that I’m a crackpot.
[Chotiner:] No. Richard—
That’s what you’re saying, isn’t it? That’s what you’re saying?
I’m not saying anything of the sort.
Admit to it. You’re saying I’m a crackpot.

Chotiner may be too polite to say so, but it is absolutely the case that Epstein is a crackpot. He doesn’t have the grounding in medicine or epidemiology to make such grand pronouncements. His underlying theories derive from a dingbat misapplication of science. As former Obama administration official Ajay Kundaria notes, “Epstein has always used [social] scientific concepts as metaphors to justify his ideological priors.” In the current case, Epstein is using not real evolutionary theory but rather metaphors taken from evolutionary theory in order to dress up his personal prejudices in the borrowed authority of science.

Although Epstein is a crackpot, he’s a crackpot who has a far-reaching influence thanks to the right-wing legal network that has nurtured his entire career. His absurd article on the coronavirus is not just a personal scandal or a blot on his record, but also evidence of wider social and political corruption.

Epstein has been allowed to flourish thanks to a host of institutions, including the Federalist Society, the University of Chicago, New York University, and the Hoover Institution. All of them are tarnished by his ridiculous coronavirus article.

The pandemic has made Epstein more famous, but his ideas have been circulating in elite legal and political circles for decades. As such, his influence on the current moment is deeper than just a few articles read in the Trump White House. As author Matt Stoller tweeted, “In case you’re wondering why we can’t handle the #coronavirus as a society it’s because Richard Epstein types have been designing our corporate and government bureaucracies for four decades.” In other words, Epstein’s delusional views on the coronavirus resonate in the Trump White House because Republicans have been acting on Epstein’s ideas for decades.

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