Lessons for the Supreme Court from the Jedi Council
The stakes, everyone agrees, couldn’t be higher. If a single vote falls one way or another, as Senator Ted Cruz points out, decisions such as Heller v. D.C., and with it the reading of the Second Amendment—does it give private individuals a right to own a gun, or reserve that right only to members of a militia?—could be reversed.
Yet, if a textual interpretation can be so altered by a single vote as to mean exactly the opposite of what it had officially been thought to mean, then surely it seems less like a disinterested interpretation than like a passionately held opinion trying to pass as a disinterested interpretation. If four English professors, readers of “The Pickwick Papers,” held that Mr. Pickwick was meant to be the embodiment of intrinsic evil, and four others that he was the embodiment of bourgeois benevolence, we would not say that the solution was to add a ninth English professor. We would say that they were making incompatible readings of the same text because of strong and irreconcilable differences in values and beliefs and expectations.
.. that the Court is a purely political institution, and then that some of its members (the ones we agree with) are disinterested scholars pursuing a higher philosophy of law. The late Justice Scalia’s pretense was that “originalism,” a doctrine of tracking pure intention alone, could absolve judges from ideology—but, of course, as has been pointed out countless times, the original intentions he found almost always conformed precisely to the prejudices and passion of a right-wing Catholic Republican of the twenty-first century.
.. We don’t believe that intellectuals are mere interpreters. We haven’t for a long time. In a post-scientific age, we generally accept that reliable conclusions are made from evidence and experience, not from torturing old texts. Yet we can’t, emotionally, entirely accept this. We need authority for fear of anarchy. So we rely on the Constitution, or pretend to