When We Wuz Supreme

The Supreme Court, as originally conceived:

Instead, the Supreme Court was supposed to give American democracy a power it would desperately need, the power to use its common-sense judgment in a reflective way. By looking at a particular law, judges would decide whether it fit into the essential framework of the constitution, or not. This power of judging what is or is not constitutional was not something reserved for legal experts: It belonged to any ordinary citizen. Being a "judge" was for Wilson something more than just a legal or professional title. He had learned from Reid that all human beings are by their nature judging animals, who sift and evaluate the facts of experience with their common sense, and then decide and act accordingly.

From that point of view, Wilson saw no essential distinction between judge and jury: In fact, under Scottish law they were virtual partners. In Scotland, the judge's job was not to act as some neutral legal referee but to help the jury find out the facts of the case and to reach the right decision. This is what Wilson's Supreme Court was supposed to do. As "the jury of the country," its decisions were not supposed to reflect judicial authority, but the good sense and judgment of the community as a whole. As Wilson himself put it, "a judge is the blessing, or he is the curse of society." It all depended on whether he or she was going to be guided by common sense, or by professional vanity and ambition.

So what went wrong? How did we get from Wilson's Supreme Court to judges who behave like Plato's philosopher kings? The answer is not easy, but it may go beyond specific decisions like Marbury v. Madison which expanded the power of the judiciary in ways Wilson never imagined, or even specific activist courts or judges. We have today a legal climate in which lawyers more and more see themselves as an elite, breathing the rarified atmosphere of juridical technicalities and legal jargon — precisely what Wilson and Reid most despised in academic philosophers of their day. Like teachers at today's college and universities, lawyers and judges have to come see themselves as professionally equipped to understand the world better than ordinary people, when it is in fact the other way around — as Wilson knew only too well.

Ahh, the quaintness of the notion that a bulwark of democracy might be founded upon simple literacy.

Instead we get a bunch of black-robed buffoons trying to justify their prejudices by torturing plainly-written English.