When President Bush scans the horizon for his next Supreme Court nominee, he might do well to not only choose a candidate who has spent some time on the bench, but also one with some understanding of, or background in, science and technology.
Such an addition to the Supreme Court would be very timely at this juncture in high-tech litigation and advances. We have entered a technological age, and we need Supreme Court justices who are up to speed on what that means, and can intelligently grapple with the issues this creates.We've already got one foot in the door via the recent appointment of Chief Justice John Roberts, who while in private practice, at one point represented the 19 states in the U.S. government's antitrust case against Microsoft. This was not a tech case per se, but obviously would have involved some discussion of technology, its application and specific markets. Still, we could use an infusion of some nerdy blood.
Most of the attention devoted to Supreme Court Justices in recent years has tended to focus on specific social issues. But that represents a mere fraction of the cases annually brought before the court. Whatever your political leanings, if you don't think the Supremes have much impact on the business of IT, and the advancement and application of high technology, you could not be more mistaken. And one thing we can not afford is a generation gap impacting precedent-setting cases.
Increasingly, high-tech companies are skipping the competition of the old fashioned free market and heading right to court with their patent, employment and other disputes. Most recently, it's been consumers battling - and so far losing - on the digital rights meter.
The Administration and Congress need to be looking ahead to the kinds of cases that are likely to tax the knowledge base of senior-citizen-class Supreme Court Justices, whose average age is 66 (thanks to the addition of the relatively young Roberts, 50.) It's highly unlikely any of them have spent any significant part of their lives involved in, or working with, any form of high technology, and my guess is their personal exposure is primarily limited to using a computer (assuming they do) and maybe a handheld. Yet these are the people who will be called upon to sort out the digital world's often disruptive impact on our existing policies and laws.
This generation gap has not escaped the attention of at least one Supreme Court Juror. Justice Stephen Breyer, 67, acknowledged as much in a speech before the American Enterprise Institute, an economic think tank in December 2003. Noting that the Supreme Court was made of up "generalists," he pointed out that examining "arcane subjects" can be difficult for judges who lack knowledge in a specific field. Even so, he suggested generalist judges can apply a "layman's common sense" to an issue, and recommended against seeking experts' input.
I applaud Breyer for seeing the problem, but not so much his nixing of experts. The High Court is already grappling with digital property right issues to mixed reviews.
In 2003, the Supreme Court agreed to review a case involving how to shield children from online porn without employing unconstitutional censorship. Other cases have produced decisions on file-sharing, "fair use," and cable regulation. In the near future, the supremes could be asked to look at Google's book copying policy; the intersection of technology and privacy issues - take RFID for example; patent disputes; antitrust as markets consolidate further; look-and-feel; opt out vs opt-in; or perhaps whether citizens can be compelled to provide biometric imprints in order to work, inhabit, or traverse.
Douglas Kmiec, a law professor at Pepperdine University, once likened the Internet to ". . . the wild, wild West. It's anything goes, and anything goes because it has no discernible boundaries, and you never know who's at the other side of the mouse." The Justices will be called upon to decide "whether a legal fence can be constructed in this otherwise wild and untamed terrain," he added.
It would certainly help if the people deciding those cases had at least a rudimentary grasp of the technologies at issue. And if that means turning to a panel of unaligned experts for some input -what's wrong with that? In his presentation, Breyer said, "We believe we are appointed to exercise our own judgment, and each of us takes full responsibility for his or her decision in each case." Well, I'm afraid that won't do the rest of us any good if the court completely misses the point of a precedent-setting case brought before it because it did not understand what the technology involved could do, or how it had changed forever, some standing more or truism held by society.