The Supreme Court of the United States has and will continue to make decisions that largely reflect majority public opinion, George Washington University Professor of Law Jeffrey Rosen told a nearly full Salomon 001 Wednesday afternoon. In a society threatened by "ubiquitous surveillance" and "cognitive profiling," solutions require democratic deliberation, and the Supreme Court "would be fooling itself if it thinks it can solve these contested issues on its own," he said.
Rosen's lecture, titled "The Roberts Court and American Democracy," was part of an annual event hosted by the Taubman Center for Public Policy honoring the legacy of former Professor of Philosophy and Dean of the College Alexander Meiklejohn, class of 1893.
Rosen said it was a special honor to deliver a lecture in Meiklejohn's name, having been "imbued with Meiklejohn's most memorable aphorisms about the First Amendment" as a law school student. Rosen added that Meiklejohn's principle that democratic discourse should protect the public interest has been overcome by "unregulated talkativeness."
"Technological changes have overtaken Meiklejohn's vision," Rosen said. The future of free speech will be determined not by the court, but by Internet service providers and the regulatory policies of organizations like the Federal Communications Commission. These policies establish "what's worth saying and what can be said," he said, while "judges can play a role only on the periphery, gently pushing toward the idea of free speech."
Rosen said the court is likely to face difficult controversies as a result of developing technology. "Grave challenges will be posed that go to the very core of who we are as a liberal society," he said, adding that it's useful to assess the court's role in the context of these potential conflicts.
The proliferation of surveillance technology such as "Google Street View," which allows users to view street-level images of certain locations, raises questions about the implications of such developments, Rosen said. "There's a difference between your neighbor watching you and the police."
The court may suggest that there are constitutional concerns with government surveillance, but Congress will have the final say, he said. "I would not rely on the Supreme Court to save us from this particular challenge, although a very serious challenge it is indeed."
Rosen also addressed recent advances in brain-scanning technology that may threaten privacy by eventually granting access to the content of individuals' memories. Making predictions about predispositions for dangerous behavior contradicts the constitutional value of freedom of thought, he said. "You're responsible for what you do, not who you are."
This type of control and screening may begin before birth, Rosen said, given the development of genetic screening and cloning technology. "Imagine parents demanding designer babies," he said. "This is indeed the modern version of eugenics."
But judges are in no better position to determine whether this technology is being used for "therapy" or for "enhancement," Rosen said. Instead of trying to define this "mysterious point," they should be deferential, avoiding extreme positions and allowing the ultimate balance to be determined politically.
Though technology poses novel challenges, according to Rosen, it has not fundamentally changed the role of the Supreme Court. The court's most enduring decisions have been those that reflect and support public consensus.
Racial equality and free speech arose because of campaigns like the Civil Rights and abolitionist movements, Rosen said. "These principles have emerged more bottom-up than top-down from judges," he said. "Courts belatedly codify principles that the rest of the country has come to accept."
"I'm not dismissing or trivializing the role of judges in confronting the threats to liberty and security," Rosen said. "I just wouldn't put all my weight on them."
Rosen said the current Supreme Court will likely follow this pattern, making decisions that are consistent with public opinion instead of acting unilaterally.
"The court's ability to be a democratic institution is always precarious," Rosen said. "For the moment, says the magic eight ball, the system looks relatively calm." He added that Meiklejohn's broader vision of political balance "remains relevant and fresh."
Manuel Possolo '09 said the technological issues Rosen presented were relevant and thought-provoking. "In considering them, you become more aware of certain constitutional questions that might arise," he said.
Dan Butler '09 said he enjoyed considering the issues Rosen covered in a modern context. "What's interesting in my mind is how Roberts is going to use his power in this particular situation," he said.
But, Butler said, "these arguments themselves have always been around."
"It was such a great lecture, but when it comes down to it, they're the same discussions we've been having about democratic constitutionalism for the last 200 years," Butler said. "I don't know how much we can really add to the discussion."
