As David Souter prepares to go north . . . .

514 words

HOW TO MAKE THE SUPREME COURT MUCH MORE REPRESENTATIVE


With the coming retirement of Justice David Souter, there is great interest in just who President Obama will appoint to succeed him. Spokespersons for various groups think that the Supreme Court should be more “representative.” Hispanics want a Hispanic, since one in six Americans is Hispanic. Women want a woman, noting that women are more than half of the population and yet only one current justice is a woman.

There is a group of Americans much more conspicuously absent from the Court than either Hispanics or women: people who are not lawyers. There are about 800,000 lawyers in the U.S., a tiny fraction of one percent of our 300,000,000 people. But every single current member of the Supreme Court is a lawyer, and this is also true of all previous justices.

We are told that diversity is important because it gives the justices more empathy with the different kinds of people who will be affected by their decisions. Also, diversity might give the justices different perspectives from which to view the legal questions facing the Court. If this is true, then having a non-lawyer on the Court could be tremendously helpful.

One or more non-lawyers on the Court might reduce its willingness to make American law more complicated by their own decisions and to tolerate excess complexity in acts of Congress.

The Court’s Fourth Amendment decisions governing arrests, searches and seizures, for example, have sometimes made the inherently difficult jobs of police officers nearly impossible. These decisions require the police to make decisions that even trained attorneys would consider close calls. The courts then have to devote scarce judicial time to second-guessing decisions made on the streets.
\
Tax legislation enacted by Congress has become so complex that a high percentage of Americans now have to pay experts to prepare their tax returns, or at least buy software to help them do their own. The Due Process clause of the Fifth Amendment, which requires that people have “notice” of their legal duties, might seem to forbid tax laws which are so complicated that only experts (if anyone!) can understand them. But our lawyer-dominated judiciary has never seen fit to reign Congress in here.

Lawyers are much better equipped than normal people to cope with outrageous complexity, indeed they seem to thrive on it, so they may be inclined to ignore the practical implications of their decisions. That is why we need at least one non-lawyer on the Supreme Court.

There is no constitutional obstacle to appointing non-lawyers to the Supreme Court. Indeed, the Constitution states absolutely no prerequisites for membership on the Court: no citizenship requirement, no age requirement, no educational requirement. While I doubt that the Founders had our present situation in mind when drafting the Constitution, we should be grateful that their words give us the flexibility to take the next step in improving our Supreme Court by including non-lawyers in its membership.

French prime minister Georges Clemenceau once said that “War is too important to be left to the generals.” Likewise, law is too important to be left to the lawyers.

[This column has run in the Detroit Free Press and the Portland Oregonian.]

The President at Notre Dame

508 words

Could St. Thomas Aquinas Address Notre Dame Graduates?

The uproar over President Obama’s speech at Notre Dame University has drawn nation-wide attention, not least so in the Pacific Northwest where I now live after 36 years in Southeastern Michigan.

The protesters’ argument that a Catholic university should not invite an abortion supporter to speak at its commencement, or last least should not have awarded him an honorary degree, is based on serious confusion about the relationship between law and morality.

The official position of the Catholic Church is that abortion is immoral and although I am not a Catholic I believe this position is a correct one. But the immorality of an action does not automatically produce the conclusion that it should be illegal. An immoral action may be good in the sense that it is the least bad option available under the circumstances.

St. Thomas Aquinas, the outstanding Catholic philosopher, pointed out that the side effects of trying to outlaw all sin may be worse than the benefits. Government has only limited resources for enforcing its laws and can easily spread itself too thin. It must therefore concentrate on preventing actions that destroy all possibility of civilization and human fellowship.

Under the unfortunate circumstances of the modern United States, laws against abortion would probably produce an increased total amount of evil and a further deterioration in our circumstances. Sexual promiscuity and illegitimate births are rampant. Were it not for the large number of abortions currently performed a higher and higher percentage of children would be brought up in underprivileged homes. Already intolerable pressures on the welfare and schooling systems would be increased.

Thus as a policy the Supreme Court’s decision unleashing abortions from the shackles of law was probably wise. The real scandal here, however, is not so much what was done, but by whom it was done. The Supreme Court is not supposed to make basic policy decisions. The constitutional reasoning which it invoked to support its Roe v. Wade decision was so flimsy that Roe supporters have been terrified ever since that a future Supreme Court might overrule it. What the Supreme Court can arbitrarily give, it could arbitrarily take away.

Congress is the branch of government in our system that is supposed to make basic policy decisions. If Congress had enacted laws protecting the right to have an abortion we could have been spared the vicious politics that have surfaced every time the Supreme Court has had a vacancy for over 30 years.

The whole situation, in a word, is a political, legal, and moral mess. One wonders how President Obama’s critics would react if St. Thomas Aquinas were brought in by time machine to speak to Notre Dame graduates next year. It is quite possible that after carefully studying the current scene, Aquinas would conclude that, although abortion remains immoral (an arena where the Church has something to say), it should not therefore be made illegal.

Would today’s protesters return to denounce Notre Dame for bringing in perhaps the greatest Catholic philosopher?

Fortunately, no time machine is likely to be available.

A different approach

I have decided not just to refocus this blog, but to unfocus it. My interests are just too wide to limit it to medical system reform issues, crucial and timely though those are. And the medical professionals I hoped would share their perspectives on problems with the current system and problems and strengths in various reform proposals did not respond to my invitation.

When I get to it, I will post links to three free introits for church choirs that I have written, the most recent of which was premiered last October by a 140 voice choir (100 students and 40 alumni) at the Adrian College homecoming chapel service.
In the meantime, anyone who would like PDF files of the three introits should just e-mail a request to me.

I will also post links to newspaper op-ed columns that I have written, the most recent of which discussed what to do about the pirates.