The United States of Ignorance continues to thrive. The volume of sludge produced and consumed by the minute may have something to do with that. It’s the downside to the First Amendment which, for more than 200 years, has remained mute on what would be a most useful precondition: thine opinion on important public matters shall be founded on facts and knowledge.
This question has become urgent as the world becomes more complex while the average American mind fails to keep up. Worse, the reptilian-brain portion of the population has become disturbingly large, sucked oxygen out of the body politic and, in too may instances, even been chosen [sic] to exercise public functions, including the administration of justice.
Aziz Huq, a law professor, worries that the US is at risk of losing “an independent judiciary that rises above politics,” that “judicial independence” may be giving way to a judiciary that’s just another venue for partisan politics. “American courts can unravel and lose public trust.” He blames polarization in Washington for “crushing pressures on judicial autonomy”.
Chief Justice Roberts, on the other hand, shrugs. “I don’t understand the connection between the opinions people disagree with and the legitimacy of the supreme court.” It’s the Court’s job to interpret the Constitution. If not us, who? “You don’t want the political branches telling you what the law is.”
One can’t say that Professor Huq and Justice Roberts are wrong, but perceptions of “public trust” and “legitimacy” regarding the courts and the Supreme Court, in particular, are squishy things. And largely beside the point. In contrast to the executive and legislative branches, the judiciary is beyond the public’s reach. Voters have zero ability to undo judicial buffoonery.
Huq sensibly posits that public trust results from the perception that “judging [is] free of the immediate, case-specific influence of powerful parties”. Roberts rightly insists that judges “don’t want public opinion to be the guide of what the appropriate decision is.” True in a sense, but the generality of both observations takes us only so far.
The ingredient missing from the public’s perceptions — deduced from opinion surveys — is knowledge about how the judiciary should work. How useful is: “Please tell me how much confidence you, yourself, have … a great deal, quite a lot, some or very little [in] the U.S. Supreme Court,” if the person asked has only a vague idea of what the Court does or how it does it?
Inevitably, the public’s opinion of the Supreme Court is reduced to a sports score: I win if I like it and lose if I don’t. If I don’t like it, my confidence in the Court is “very little;” if I agree with it, my confidence in the Court is “great”. Have I read the Court’s opinion? No. What distinguishes a good ruling from a bad one? No clue.
Especially in hot-topic cases on abortion, race, and voting rights, Supreme Court decisions trigger allegations of political hackery. But people’s opinions, even when right in their conclusion, are mere impulsive responses to a judicial work product that media have predigested for them. They have little idea why a decision is good or bad, let alone just.
The effect is to worsen the already stupefying levels of superficiality and ignorance lubricating the country’s gears. It enables Huq and Roberts to float above the mayhem where blame of identifiable people is seen as gauche. They can avoid assigning responsibility for that mayhem, the academic because he wants to be fair, the jurist because he wants to duck his own role in it.
Roberts (gutter of voting rights who deems gerrymandering non-justiciable), in particular, shows how this works. He whines that “[disagreement] with an opinion is not a basis for criticizing the legitimacy of the court.” He ignores the obvious: questions about the Court’s legitimacy are less about outcomes than about how he and his five hyper-partisan colleagues invented them.
They do this by way of opinions that sacrifice established rights and legal reasoning to a deeply personal mission — often and boldly expressed in public forums — which is to be a bulwark against a society heading in a direction they don’t like. Although dressed as justices, these admitted culture warriors feel free to invent, falsify, and erase, and still call what they do “law”.
As long as the voting public is only vaguely aware that there is something rotten about this and that known people are responsible for the rot, the sustained political pressure necessary to effectuate change will remain elusive. That’s the inevitable result in a country this atomized, where knowledge and expertise are subordinate to feelings and where, as a result, deliberative democracy is fading fast.
