The one place where you most expect wisdom from government is where authoritarianism has its greatest stranglehold. Supreme Court Justices are nominated for life through party politics. They overwhelmingly represent wealth and power elites, with corporate lawyers in the lead. They establish jurisprudence through arbitrary justifications couched in obtuse legal dogma. Restoring political balance will require restoring wisdom to jurisprudence.
Supreme Court Justices receive the least flak of all our highest officials, yet they deserve the most. Save for foreign wars, our greatest tragedies were related in some way to Supreme Court decisions. The Civil War was aggravated, if not made necessary, by Dred Scott v. Sandford. The Great Depression was aggravated by a series of decisions made by what was known as the laissez faire court, most notably the Lochner v. New York decision. The Supreme Court decision with current far reaching negative impact is Buckley v. Valeo, legitimizing money as an expression of free speech.
The Supreme Court receives scrutiny for some decisions, most notably Roe v. Wade. While the decision is important for its personal impact, it ironically has little democratic impact. If jurisprudence were to proceed how the founding fathers intended, with experimentation at the state level driving the bus, we would probably have the same result through a Constitutional amendment process that has been decided by the Supreme Court. Whether or not one agrees with the result, the Supreme Court has not assaulted democracy with Roe v. Wade.
We know that Buckley v. Valeo thwarts the originally intended democratic/empirical process because the Supreme Court keeps referring to the decision to shoot down state campaign finance laws. This is reminiscent of the Supreme Court shooting down state labor laws based on Lochner v. New York. Yet overturning Buckley v. Valeo, while most desirable for a democracy, does not remedy what is at the heart of our authoritarian jurisprudence. Any Supreme Court Justice supporting “textualism” or “originalism,” but does not want to overturn Marbury v. Madison, is simply full of BS. That was the decision that made the Supreme Court the ultimate arbiter of the Constitution, leading to a series of jurisprudence that would steadily usurp the state authority that could drive a bottoms-up process of experimentation and amendment.
I personally believe that the Constitution is our finest document, showing amazing foresight by the crafters. Among their intent was to encourage the wise process of bottoms-up experimentation, an empirical process that gladdens the heart of any scientist. Had such a process ended up bestowing ultimate authority for the Constitution to the Supreme Court we could assume the wisdom in that, but that’s not what happened. The Supreme Court made that decision for itself and we have ever since been a legal system dictated by the authoritarianism of a few good ol’ boys connected to wealth and power elites. Ironically, we have not had more amendments to the Constitution because of its original wisdom, but because its original wisdom has been thwarted by the good ol’ boys.
Restoring political balance means overturning Marbury v. Madison, even if the eventual result is for the states to initiate an amendment process that grants the Supreme Court the same function. At least the independent, decentralized debate that would come out of such a process would infuse jurisprudence with more empirically determined wisdom and less arbitrary legal dogma.
My essays in Systems out of Balance on Legal Dogma and Natural Rights and Conditions elaborates on this theme further.
