Mark Sherman of the AP posted this interesting article regarding the Supreme Court’s “aversion” to dealing with the myriad legal issues that arise from modern technology. Particularly interesting is the quote from Justice Kagan: “The justices are not necessarily the most technologically sophisticated people.” Noting that other justices have expressed similar sentiments over time, the article seems to indicate that the Supreme Court considers itself uniquely and poorly situated to act on issues regarding technology.
This strikes me as an evasion of responsibility on the part of these justices and Supreme Court as a whole. The implication from these statements is that the executive and legislative branches are somehow superior in their knowledge regarding technology and how that should interact with the law. The last I read the Constitution, however, I noted no part of the qualifications for a position in either of those two branches that involved having some requisite amount of knowledge of science and technology in order to be elected and/or appointed to public office. In fact, considering that 56% of the Republican caucus refuses to accept climate change as a legitimate threat to our planet, it appears the technological illiterate in the Supreme Court may even be more competent than a good portion of the legislative branch.
In a national government that deals with issues from a wide-range of topic areas, it is inevitable that a member of government is going to be faced with a challenge that is outside their natural base of knowledge. A good government official, when faced with such a challenge, will endeavor to either learn enough about the subject matter to make their own independent decision, rely on the expertise of one of their subordinates that has knowledge in that area, obtain expert advice from someone outside that can advise them on the issue, or seek input from experts in the community at large and weigh this input. This applies whether one is the President, a legislator, or a Supreme Court justice.
Should a case involving technology issues arise that implicates Constitutional concerns, it is the duty of the Supreme Court to accept it, weigh all the information that is presented, and come to their best judgment regarding a resolution. While I’m sure the justices would prefer Congress or the President to act, that is no excuse for shirking their own responsibility in our Constitutional structure. Each justice has the ability to hire some of the best and brightest people to assist them as clerks. Would it not make sense for the justices to consider hiring at least one of the many excellent attorneys out there that have substantive knowledge of science and technology? Similarly, in most major issues that come before the Court, there are multiple briefs filed by technologists, economists, and the like whose sole goal is to both educate the justices and their clerks regarding the issues in the case so that the Court can make the best decision it can. Would it not make the most sense to rely on this input?
There are other routes the Court can take as well. While there is no formal rule at the Supreme Court, the Federal Rules of Evidence grant a district court the ability to appoint an expert when the issues in the case demand it. While this obviously is ‘outside the record’ in a case presented on appellate review, there is nothing that would forbid a justice from seeking the impartial advice of an outside source, if only to help educate them on what the technology is and what it does. The justices could even stay within the judiciary if they wanted, by seeking advice from judges in the D.C.-based Federal Circuit, which deals with technology issues on a daily basis.
Indeed, most of this professed sentiment of the Court seems to be the natural inclination for the Court to prefer Congress or the executive to act rather than having to make hard decisions on their own. Which is fine and, honestly, further respects the ‘last-resort’ nature of the Court’s role in our democracy. But to say, as Justice Kennedy does, that the “judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” this is a cop out. The executive and legislative branches also risk error every time one of them makes a determination that affects us. That the Supreme Court should get to avert its responsibilities so that it remains infallible is belied by its storied history of missed calls. Whether it’s the Dred Scott decision, Plessy v. Ferguson, Lochner, or any other number of decisions, the Supreme Court sometimes gets it wrong.
The Court may also get it wrong when it comes to NSA surveillance, software patents, or any other number of interesting and challenging issues that new technology presents. And that’s ok. They just need to be able to accept later on that they were wrong and correct course if need be. In the past, many times the Court has been wrong, which forced the other branches to step in, and eventually our nation has evolved to find the right answer. That’s why we have the three branches of government and that’s the genius of how they interact with each other.
So, Justice Kagan, I’m glad that you acknowledge you and your colleague’s weaknesses with technology. Knowing that you have a weakness is the first and most important step toward finding a solution to those weaknesses and growing as individuals as a result. But don’t use weakness as an excuse to avoid the cases you and your colleagues need to accept to help resolve the tough issues of our day. If need be, issue limited rulings that punt these important issues back to Congress and force them to make the hard choices. That’s your role and responsibility and the nation will be better off as a result.