The problem with the U.S. Supreme Court

The Supreme Court's potential distinctiveness in American politics has less to do with the fact that it decides political issues on the basis of the Constitution and juridical precedent rather than the pure will of the sovereign power, than with the fact that it supposedly decides them on the basis of reason rather than the pure will of the sovereign power. Indeed, the use of the Constitution simply is a way of stating what the sovereign power is supposed to be: its original self or that self's truest thoughts, declared when it was at a few years' remove from the witness stand of history, when it declared its identity as having its site in North America and not England, and founded in those famous rights penned by Jefferson.

The Supreme Court is the only decision-making political body that is expected to use rational argumentation to make decisions. But that is not how it is used, nor thought of, by most Americans. Americans who appeal to the Court to solve their problems, as until the current moment liberals have tended to do even more than conservatives, are hoping that they have found an authority that they can appeal to that, simply, will give them what they want.

And everyone knows that the choice of who is on the Supreme Court is entirely "political" in the sense of using it as an opportunity to get what "we" want. And ultimately this is the current President, who chooses nominees to the Court in accordance with what he and his power base prefer. This has nothing to do with rendering sound decisions on the basis of Constitutional principles and rational inquiry and argumentation. It has to do with nothing more than power's ability to legitimate itself. We do have political institutions that serve this purpose, selling, as it were, our system to ourselves and our fellow citizens. The world's oldest mass representative democracy and most confident global power which rarely shuns using the most barbaric, cruel, and purely self-interested means to obtain what are normally presented as our own true universal democratic, liberal, and humanist values, this country, which typically declares its absolute authority both domestic and foreign, needs that. This is a country whose police forces can invade your home or kill you with a drone or in any other way, without any permit or authorization other than the arbitrary will of its own sovereign power, and the decision that you or your residence is a proper candidate for application of the floating state of emergency declared most strikingly after 9/11.

Such power demands alternatives or limits. Limits is the classical liberal strategy, in our Constitution's set of rights of citizens and partitioning of government. Alternatives to pure administration and technobureaucratic operativity include the rule of law, the rule of the people, and rule by reason vs. rule by will. Our democracy is rule by will, and since the majority can be wrong, ours has built in a set of limits to power that plainly favor those minorities that are rural, wealthy, or conservative.

We desparately need the sovereign power of a democracy based on reason. We need a revitalized public sphere, in place of a highly deformed one. Businesses tend to "think" only in strategic and tactical ways and in ways limited to the higher levels. They do not encourage their workers or customers to think rationally and critically. The Internet is a deformed public sphere, and so is the world of business interactions that the consumers and pseudo-entrepreneurs of our own lives that we now all supposedly are more than workers or citizens. We need to rediscover citizenship. And not, in the manner of conservative communitarians, with richer family, religion, and neighborhood social ties, but through rational debate. That is the only solid foundation of democracy. Just limiting power assumes that we are effectively a constitutional monarchy, or a constitutional neo-feudalism. It matters whose power. Democracy still means popular rule.

The Supreme Court serves functions in our nation's political life that are not appropriate to it. Its storied use of reason needs to be expanded. In a sense, the use of reason by a sovereign power is unlimited, not based on constitutional principles other than those of things like non-contradiction and the excluded middle, perhaps, and these things rest on a notion of argumentative sense or coherence. They rest on the idea that we mean what we say and say what we mean, in a strong sense that is not just an indication of what we will do, but allows what is said to be contested, precisely because what we want is up for grabs. The public space must be a space of reasons. American society largely lacks this, and recent developments have made this lack more visible. What is of public concern is in question; a society in which nothing is in question (or in doubt) is one in which everything is a private matter, and there is no commons; then right stems not from reason but from property.

One can certainly read some of this into the abortion issues, since both sides have typically argued for something like a private property right: is the foetus the property of the adult person in which it is located, or does it have its own property rights? It makes perfectly good sense to suppose that abortion should be legal merely as a matter of public will, as a "property" right most citizens want women to have, and that it should not have been dependent on the Supreme Court. It is perhaps an irony the way that this one issue has not only become quite possibly the most contentious political issue facing voters - and it is interesting to wonder why - but that the whole matter was also a casualty of they dysfunctional character in some respects of the American system of government. It divides and opposes reason and democracy. Our liberties are rights, and those seem to be our highest values. The same court continues to hold that a constitutional amendment concerning armed group of citizens that might be relevant in some inapplicable context (not, surely, that of the events of January 6 of 2021) provides the solution to the question of whether anything at all can be done governmentally, rather than by private citizens on an ad hoc basis, about rampant gun violence. Liberty is rights for us, and democracy is the not unrelated rule of the authority of will, via popular sovereignty as the will of the people. We have rights and will, and decisions and actions, galore, and are suffering more from the increasing distance of most Americans and their institutions from knowing how to think.

Can a democracy survive without reason? That is the question. And if it does, how can we (thinking rationally? Meaning, in part, consistently?) want it?