The Supreme Court is a tool for holding government within the law. The problem is it doesn’t work especially well anymore. Like spats, the horse-drawn carriage, and the Blackberry, the Court has an obsolescence problem.
Consider the Court’s painfully evident incapacity to address new technologies of state power that don’t conform to traditional templates. Once, the right to vote was defeated by literacy tests, grandfather clauses, and poll taxes. Today, the value of a person’s vote is hostage to legislators’ ability to gerrymander using sophisticated redistricting software. Once, newspapers were pulped and journalists arrested to stifle speech. Today, recommendation algorithms for social media feeds make some posts pervasive and others invisible. Once, the right to privacy focused on physical invasions. Today, the government can simply purchase details of individual behavior from data brokers.
The Court has blinked in the face of these developments. In 2019, its conservative majority rejected challenges to partisan gerrymandering on the nonsensical assumption that incumbents in state and federal legislatures can be trusted to alleviate electoral gridlock on their own. In 2023, the Court was asked to decide whether digital platforms should be legally responsible for the harmful speech they circulate — but it ducked the issue, dismissing the case and leaving in place Section 230, the ’90s-era law that gives platforms sweeping immunity.
The Court’s record on digital privacy is no better. The last time it addressed the issue was in 2018. Police departments have since rushed to acquire new digital tools that use A.I. to winnow private facts from public data. Predictive policing algorithms, facial-recognition tools, and StingRay mimicry of cell phone towers all pierce into previously private domains. None of this has been addressed by the Court. On the contrary, judicial rules for raising new constitutional challenges to policing tactics are so tortuous, and so onerous, that many issues never get aired in federal court.
Now consider whether a bench of nine generalist judges (selected by a partisan White House and Senate) is an optimal tool for addressing novel technological predicaments. Better options are available, thanks to innovations in technology itself. Districting maps can also be analyzed with A.I. to ascertain whether they’re biased. Digital censorship by platforms invites new consumer products for detecting filter bubbles and excluding hate speech and propaganda. For every dollar that police spend on surveilling the public, a countervailing dollar might be spent gathering and analyzing data on police decisions to deploy in black (but not white) neighborhoods. Or those dollars could be spent on electronic monitoring tools that track when and why police decide to use potentially deadly force.
The liberal response to the Court’s rightward turn aims to limit judicial power with term limits, new seats, jurisdictional strips, and so on. But none of these proposals responds to the problem the Court was initially created to solve — taming a self-regarding Leviathan. Perhaps the time has come to think not about tweaks, but about switching technological tracks — and asking what might serve us better against the state’s new digitally enabled depredations than a bunch of black-robed lawyers.
Aziz Huq’s most recent books are The Collapse of Constitutional Remedies and The Rule of Law: A Short Introduction. He’s working on a book about how digital power changes basic rights.