Sunday, July 18, 2010

The Rule of 5 and the U.S. Supreme Court at Balkinization

At Balkinization, a posting by Sandy Levinson titled "Persuasion" versus "authority" (and "authoritarianism") in the law expresses some understandably genuine discomfort with the authoritarian nature of the U.S. Supreme Court, whose "papal" wisdom is often expressed and defined by close 5-4 majority rule decisions rather than by the convincing persuasiveness of superior legal logic.

Nevertheless, the law is what the majority of Justices on the Supreme Court say that it is.

The majority defines the "winning" arguments.

That is the same principle that has historically applied in war.
To the victor belong the spoils.

The hope that Western "democracy" somehow replaces the dictates of natural law is an illusion.

As for the advanced age of Justices, we agree that they should all step down at some pre-prescribed age (75 might be a good round number), for it is a rare man or woman who, in the same shoes - without being forced to do so - would leave this position of power as long as THEY thought they were still able to do the job.

Spreading the word is of course great fun in any profession, and we can not fault Supreme Court Justices for giving so many out-of-office speeches to fawning groupies, but it is also unfortunate for the exercise of their responsibilities. As Chief Justice Roberts famous "pager" gaff demonstrates, Justices probably ought to be spending more of their out-of-office time, inter alia, reading up on modern technological developments so that they are in a half-way competent state of knowledge to be able to "lay down the law" on cutting-edge Constitutional issues involving modern technology.

Alas, although courts -- by their very function -- have the "power" to make rulings, no corresponding state of knowledge about the subject matter to be decided upon is imputed to them, and in fact they often do not have it.

Rather than vanity Senators of the Senate Judiciary Committee asking banal political questions of e.g. Supreme Court nominee Elena Kagan, it might have been wiser for them to ask future Supreme Court Justice Kagan what she intended to do to catch up her knowledge on the many technological topics about which the Supreme Court has to rule.

It is, however, presumed that judges on the courts know THE LAW, which at the level of the Supreme Court is a paradoxical double-edged sword, since law is not only KNOWN but also MADE in the chambers of the Supremes. Hence, a rigidly honest Supreme Court nominee to questions about their views on the law might in fact say: "I am not that sure at the moment what the law IS, but when I am Supreme Court Justice, I will gladly tell you...."

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