Monday, July 2, 2012

The Minority Report Court

Writing about liberal pressure here, Peter Suderman complains that public discourse about the Constitutionality of Obamacare 'intimidated' John Roberts into changing his vote.

In the universe Suderman lives in, until last Thursday, the Supreme Court floated comatose in a pool of judicial milk, like the fucking telepaths from the Minority Report. But this time, comments about the Constitution disturbed their reverie, throwing off Roberts' otherwise-infallible Constitutionality-calculating process. He then voted improperly. As citizens and politicians, we therefore have a responsiblity to remain silent about ambiguous clauses in the Constitution to avoid disturbing the calculation process.

In the universe the rest of us live in, textual ambiguities in the Constitution are decided in three ways: (a) by reference to outside ethical axioms, (b) by reference to facts in the outside world, and (c) by reference to precedent. As this case was wholly unprecedented, the Court could not make reference to precedent. It was then left to make its decision by referring to outside ethical axioms and external facts.

This process is not improved by restricting the Supreme Court's access to external axioms, external facts, and public sentiments about the legitimacy of their decisions. Nor is it improved by an insipid, deferential public discourse about the strength of our feelings on the subject. Without that feedback about the public's axioms, facts, and sentiments, the Supreme Court is left drifting whenever the text of the Constitution is vague.

It's unclear to me why he thinks this will improve the quality of American jurisprudence.
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