The Great High Court of the Land
So, Jack's been a bit of a dull boy for a few weeks and neglected his blog. Well, no matter. There's time now and I'm sure we're all pleased.
My question is this, Why not elect Supreme Court Justices? The question occured to me before my layoff, while listening to Gordon Wood give a talk about the history of the origin of the U.S. Constituion. Yes, that Gordon Wood, subject of the most famous bar room debate of the economic history of capital markets in cinematic history...'Wood drastically underestimates the capital preforming effects of military mobilization...'. Part of his project was to explain how the American Constitution differed just because its origin was to form a government, rather than being a part of government as in the case of Britain's unwritten Constitution.
A key issue was the notion of representation. We all know that taxation without representation is wrong--very, very wrong indeed. The british claim, of course, was that the colonies were virtually represented by parliment. The idea here being that there is no difference between parliment, government, or indeed the people's authority and parliment's authority. They are one. Thus, the failure to align parliamentry districts or porportional representation, or even that an MP for a district need be from the district: all serve for all. The consequence was, of course, districts like Olde Sarum that had no constiuent at all, but did have MPs.
The American Constitution fundamentally differed from this. The differences were three, i) that government differed from law, ii) the distinction of federal power, and iii) that sovreingty remains with the people, which is represented in government.
I want to pick on iii. It is because of iii that the idea of representation makes sense. Senators, congressmen, and even presidents are fundamentally conduits of individual sovreignty to the levers of government in their particular branch of government. They are elected, more or less directly, and only because of this are they endowed with any power. Why aren't justices? Why don't they "represent" the people within the judicial branch? Are they virtual representatives? Do they represent us virtually? Where then do they derive this power, if it is the case that representation by election, an act, is the only genuine source of sovreign power?
This is all a little bit of a loose discussion; the topic is new to me and the ideas still emerging. To take a step back, what is a typical argument for the nominatorial status of S.Js? One might say it is to keep them above the political fray. That the interpretation of the law should be insulated from politics. Maybe. Mostly it makes my ass twitch. It is a better argument for life-terms, or for tenure. As such it would protect a person from making a decision for vocational gain. I wish politics was insulated from politics. I wish my representatives in congress were above the nitty gritty. They're not, and it is no good idea to grant them life-terms either. But I digress.
If we elected Supreme Court Justices, I think they would have to answer some of the questions they so assiduously duck as it is. Then again, they could just lie or equivocate, which seems to be the best strategy if you need to get elected to something. But despite this all to real fact of political life, we do know more about where, say, George the Second stands on abortion than we know where Alito does.
So, (to be honest) without trying to hard to probe the question in either of these two directions, i) why not elect justices since there is no good reason not to?, and ii) wherein is their power derived if they are not elected? Indeed, lacking a firm answer to ii is a reason to endorse i.
Part II (the shorter part)
I understand the focus on presidential power and abortion; they are topics of current concern and should be addressed. However, they are not the only worthy question, nor maybe the most pertinent for the court's concerns in the future. I'm going from memory here, but the typical description of recent court history is that it dealt with problems of the extent of government power prompted by the New Deal. Then came the era of person rights prompted by the civil rights movement. So, where is the court going? What will it have to deal with next?
My suggestion is that it will have to deal with to what, if any, extent government has the right to tell people what they can or cannot do in determing the color of their kid's hair or height. The twentieth century was the century of technology, the twenty first will be the century of biology. I'm fairly certain that the big issues down the pike are the kinds of one's we're familiar with from Brave New World's central hatchery. I've not followed the questioning of Roberts, and the Alito hearings are just begining, but that kind of question has not come up.
To be fair, I doubt anyone has a good idea what the right questions to ask about genetics and its engineering are. Nor less would they know what to ask about the role of government in managing access to it, equality before the law and access to opportunity when it is accessible, or how much we can change about ourselves. But these are the big questions that many on this court will face, especially these two young additions. Yet, this topic has been left in the dark.