(Supreme) Courting Favor

Lawrence Lessig has posted his own lucid thoughts about how things went arguing the Eldred case in front of the Supreme Court. His best hint for the interpretive exercise known as “Supreme Watching” is this:

“Lots of people have made tons of noise about what the court asked questions about and what it did not ask questions about. In my experience, this is not an indicator of anything. One hour is an extraordinarily small amount of time to consider the issues in this case. They ask question about things that need to be discussed. They let go things that they get from the briefs. When I clerked, oral argument was irrelevant to 90% of the cases; that is because they do their work based on the writing, and unlike most branches of government, they actually do their work. “

What’s so interesting about this case for me is how it’s raised the interest of a diverse group of people, from geeks and hackers to free-speechers and even anarchists. There aren’t many other Supreme Court cases in my memory — and that goes back a little less than 30 years — that have raised so much popular interest. Thus, it also serves a lesson in American law and judicial procedure.

I’d argue that the Supreme Court, despite its lesser members, is an example of the best tendencies in the US judicial system, where appeals to logic, reason and principle carry the greatest weight.

That said, it is also an example of an extremely hierarchical and utterly undemocratic system. Supreme Court justices are not representatives and are not elected. The ruling ideology says this is because they are chosen for their abilities and their record of merit. Reality shows that this is far from true. That most justices end up being less predictable than their supporters would like only demonstrates the strength of the ideology and the strong pressure amongst those on the bench to live up to it.

In many ways it’s an appealing system because its ideology would have you believe that utterly objective logic, reason and fact can truly rule the day, and so actual justice can be had if only the right arguments are made. Of course, all this depends on the wisdom and whims of just 9 people, chosen only by the the most powerful elites in the country.

Indeed the Supreme Court (and much of the judicial system in general) is really the strongest vestige of monarchy and explicit elite rule. Perhaps it’s also a vestige of noblesse oblige.

The point I’m leading up to is that behind the arguments and debates, what we really have is a highly ritualized and codified system of begging. It’s like lobbying, only with a stronger ideology of intellectualism. Nonetheless, begging is what you’re doing when you’re trying to convince someone in power to use their power for your purposes. Begging is necessary when power is exclusive and unshared, and you don’t have it.

Yes, I’m glad to see the Supreme Court take up this issue of intellectual property — we’re stuck with this system at the moment and I’d like to see our laws be as resonable as possible if I’m going to be subject to them. But that doesn’t mean that we’re not currying favor with the powerful. And this set of powerful is not directly accountable to us.






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