The Supreme Court Does Not Scale
Lessons from the Enigma of Clarence Thomas
After reading Corey Robin's The Enigma of Clarence Thomas I have come to realize that the Supreme Court does not scale. While Robin might not fully endorse my meta-analysis of his work, the existence of an entire genre exploring the influence of personal backgrounds on Supreme Court jurisprudence indicates a significant problem.
Scaling is a concept that manifests in various domains. For instance, doubling the proportions of a recipe while maintaining its deliciousness is a scaling experience shared by any home cook.
In software scaling refers to a system's capability to handle increased workloads without sacrificing performance or functionality. A well known example is Amazon, which completes online transactions whether you are using it alone or along with a hundred million other customers simultaneously.
Scaling a business refers to the expansion of a company's operations to handle increased demand, increase revenue and achieve growth. A decade ago it was rare to see a Tesla on the road, now seeing one is unremarkable.
Solutions reliant on individuals are not scalable. At work, if I create a system that requires my personal intervention or maintenance, I've created a liability. Whether I decide to take a vacation or leave the company entirely, a dependency on my availability persists.
SCOTUS does not scale because of its dependency on the experiences of nine Justices. The idiosyncratic biographies and desires of these nine otherwise unremarkable people are elevated above nearly all others.
It is not as if they are the only nine people who can do this work. Harvard and Yale certainly produce more graduates than these nine - even if we were to use that dubious signifier as our criteria for jurisprudential merit.
Furthermore, none of the nine justices were elected to their positions. In fact, only four sitting justices were even nominated by a President who carried the popular vote for all of his terms in office (George W. Bush's nominees were all confirmed during his second term, in which he won the popular vote).
They each serve a life term to decrease the likelihood of corruption, but recent examples of Supreme Court Justices failing to disclose significant spending by billionaire connections on their behalf suggest otherwise (Alito & Thomas).
In The Enigma of Clarence Thomas, Robin argues that Thomas's conservatism is based in his Black Nationalism. Justice Thomas grew up under Jim Crow. His first hand experience with segregation is immensely important to how he sees the world - as it likely is for anyone with that background. His conservatism and support of the Republican party are a direct result of his belief that the only way for Black people to succeed in America is to compete in the market.
Whether he earnestly holds these beliefs or not does not change the fact that his opinions have real world consequences. Thomas has been on the court for more than 30 years. He has written majority and concurring opinions that have weakened the freedom of speech, right to privacy, and most recently banned affirmative action. Thomas's biography and ideology inform his jurisprudence which in turn affects the lives of every American.
The notion that the lives and fortunes of so many hinge on the whims of just nine individuals is deeply concerning. To enable the Judiciary to scale to meet the demands of a modern, free, democratic society, we must find a way to make these nine biographies no longer matter.
Correction
At the time this piece was published I incorrectly asserted that only three justices were nominated by presidents who won the popular vote for each of their terms. The real number is four.
The point still stands - the court is not an embodiment of the principle that one person should equal one vote.
- Clarence Thomas was nominated by George Bush
- Elena Kagan was nominated by Barack Obama
- Sonia Sotomayor was nominated by Barack Obama
- Kentaji Brown Jackson was nominated by Joe Biden
Donald Trump, who did not win the popular vote for his term in office nominated three sitting justices.
George W Bush, who did not win the popular vote during his first term in office, but did win the popular vote during his second term of office nominated the remaining two justices. GW Bush nominated Roberts and Alito in 2005, during his second term of office.
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