Lend Me Your Ears: Great Speeches in History (89 page)

Ordinarily, interim stay orders of the Court, like grants of review, issue without explanation. But this was no ordinary case. Justice Stevens took
the unusual step of issuing a written dissent, which Justice Souter, Justice Breyer, and I joined, stating reasons for concluding that the stay was unjustified. In the dissenters’ view, the Court should have stayed out of the fray entirely, leaving its ultimate resolution to Congress. Justice Scalia took the even more unusual step of explaining why he voted in favor of a stay securing Court adjudication of the controversy. Each side warned that the other risked casting a cloud of illegitimacy over the election.

On December 12, three days after granting review, and one day after oral argument, the U.S. Supreme Court released its decision. Unaccompanied by the usual syllabus, and including six separate writings, the release first confused instant reporters. The outcome, however, is by now clear to all. In an unsigned opinion, five justices agreed that under the Equal Protection Clause of the U.S. Constitution, the Florida Election Code’s “intent of the voter” standard provided insufficient guidance for manually recounting disputed ballots. The five justices further agreed that there was no time left to conduct recounts under constitutionally acceptable standards. That was so, the per curiam opinion explained, because the Florida Supreme Court had interpreted Florida election law to require completion of all vote counts by December 12, the date by which, under federal law, Florida had to certify its election results in order to gain for the state’s electoral votes “conclusive” effect in Congress’s tally of all electoral votes.

Four justices dissented. Two said that the “intent of the voter” standard presented equal protection concerns, but also said that those concerns might be met on remand. Two determined that the standard raised no equal protection problem, particularly in view of the range of local voting systems and ballot designs traditionally tolerated. (I was one of those two.) All four dissenting justices agreed that the December 12 deadline was illusory under both Florida law and federal law. Justice Breyer explained that neither the Florida Supreme Court nor the Florida Legislature adopted December 12 as the drop-dead date for counting votes, and that several provisions of federal law obligated Congress to count a state’s electoral votes based on election results determined after December 12. Justice Souter wrote: “There is no justification for denying the state the opportunity to try to count all disputed ballots now.” (I note that the Court’s vote did not divide strictly on party lines. While Justice Breyer and I were appointed by President Clinton, a Democrat, our colleagues in dissent were appointed by Republican presidents: Justice Stevens by President Ford, Justice Souter by President Bush, the elder.)

Less than two months into the aftermath, I will not venture any dire or definitive declarations about the implications of
Bush v. Gore
for judicial
independence. The wisdom of the Court’s decision to intervene, and the wisdom of its ultimate determination, as I said earlier, await history’s judgment. The initial commentary has been mixed.
Washington Post
columnist Robert Novak, fearing a tumultuous political climax in the United States Congress had the recounts gone forward, praised “the bare majority of the high court” for sav[ing] “the country from th[e] potential constitutional crisis resulting from Gore’s doggedness.” Columnist Charles Krauthammer agreed: “Political tension would only have grown—this would not have been resolved until January!—and created a train wreck. The majority of the court wisely declined this reckless invitation to a true constitutional crisis.”

On the other side, author and columnist E. J. Dionne wrote: “The most troublesome aspect here is
not
that the five most conservative appointees on the court ruled in favor of the Republican presidential candidate. It is that the same five chose to intrude in Florida’s election process having always claimed to be champions of the rights of states and foes of ‘judicial activism’ and ‘judicial overreach.’” Five hundred fifty-four law professors signed on to a full-page newspaper ad declaiming in boldface: “It Is Not the Job of a Federal Court to Stop Votes from Being Counted.” And the
New York Times
reporter whose beat is the U.S. Supreme Court, Linda Greenhouse, observed: “[T]hese are justices who are accustomed to both bitter division—often by the same 5-to-4 alignment—and to moving on to the next case. But there is something different about
Bush v. Gore
that raises the question about whether moving on will be quite so easy. This was something more than a dispute rooted in judicial philosophy…. [H]ad members of the majority been true to their judicial philosophy, the opinion would have come out differently.”

Additional analysis, commentary, even counting are in the works, and I shall leave the flowing streams of words saved on PCs to the books and articles certain to appear. It may be fitting, however, to close my account of
Bush v. Gore
with this parting observation. In the weeks before the Court decided to hear the case, the editorial pages of major newspapers (though far from unanimous) contained abundant commentary urging the Court to end the election controversy with a swift and final resolution. A national crisis was looming, this commentary maintained, and only the Supreme Court could avert it. The popular conservative columnist William Safire, an unlikely proponent of judicial intervention, wrote: “The Supreme Court (whose unanimous ruling against Nixon on the tapes led to his resignation) [can] put its imprimatur on the best way to decide who shall occupy the presidency. And the vast majority of Americans would readily accept the decision.” Less acceptable, perhaps,
was the judicial solution proposed in a cartoon handed to me at a reception. It said: “I think they should let Ruth Bader Ginsburg flip a coin.”

Coin flipping aside, these sentiments reflect, it seems to me, long and widely held trust in the fairness and reasoned decision making of the U.S. federal judiciary. That trust is attributable not only to the fact that the United States Constitution, for well over two hundred years, has been understood to arm federal courts with authority definitively to declare the law, even in turbulent controversies involving the nation’s fundamental law. It is also a product of decision-making mores to which legions of federal judges adhere: restraint, economy, prudence, respect for other agencies of decision (an element elaborated on by Professor Dyzenhaus in his lecture), reasoned judgment, and, above all, fidelity to law. Whatever final judgment awaits
Bush v. Gore
in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.

A Physician and Molecular Biochemist who studied and later taught at the University of Chicago, Dr. Kass turned from the practice of scientific research to the study of the ethics of the potential product of that research. In the early 1970s, as one of the founders of the Hastings Center in New York, he became a leader in the newly named field of bioethics, and the scholarly scientist and classicist stepped into the center of the most profound controversies. Though many scientists strongly believe his questioning of ends stands in the way of pursuing worthy means like the cure of diseases, other scientists and philosophers share his concerns about eugenics and the manipulation of moods and minds.

In 2001, the culturally conservative Kass was appointed by George W. Bush to head the President’s Council on Bioethics, a diverse group that helped find a compromise about one of those controversies: the use of embryonic stem cells in research. In subsequent reports, the Bioethics Council went “beyond therapy” to examine the moral implications of progress toward age retardation and the artificial enhancement of the human body and brain.

One field that troubles most scientists is the cloning of human beings—to produce a genetically identical duplicate. On May 17, 2001, at a meeting about the legal, social, and ethical implications of human genetics at the University of Chicago, Dr. Kass took on this subject.

The address presented the problem with a stark medical metaphor: “Human nature itself lies on the operating table….” In a staccato paragraph using sentence fragments, Kass lists some the “transforming powers” already upon us. This leads to his evocation of the 1932 novel by
Aldous Huxley,
Brave New World
(the title from Shakespeare’s
The Tempest
: “O brave new world, that has such people in’t!”). More directly than
1984
, the 1949 work of fiction by George Orwell, Huxley’s sociopolitical novel deals with the dehumanizing danger of the chemical and biological manipulation of the human species.

In sounding the tocsin about this threat of a “posthuman world,” Kass disarms his audience with lines like “I exaggerate somewhat, but in the direction of the truth” and “This afternoon I want to begin to persuade you….” Self-questioning keeps the flow going: “What to think about this prospect? Nothing good.” He then lists four objections to human cloning and examines them seriatim, a device that helps the listener follow his points (Four is about the limit—ten points is a nice round number for religious commandments and bills of rights, but in rhetorical arguments, more than four signals to the audience an interminable speech ahead.) By concluding with a specific legislative remedy and a call for “shifting the paradigm around,” the ethicist places the burden of justifying exciting scientific gains on those unwilling to recognize the danger of a loss in being human.

***

THE URGENCY OF
the great political struggles of the twentieth century, successfully waged against totalitarianisms first right and then left, seems to have blinded many people to a deeper truth about the present age: All contemporary societies are traveling briskly in the same utopian direction. All march eagerly to the drums of technological progress and fly proudly the banner of modern science; all sing loudly the Baconian anthem, “Conquer nature, relieve man’s estate.” Leading the triumphal procession is modern medicine, becoming daily ever more powerful in its battle against disease, decay, and death, thanks especially to the astonishing achievements in biomedical science and technology—achievements for which we must surely be grateful.

Yet contemplating present and projected advances in genetic and reproductive technologies, in neuroscience and psychopharmacology, and in the development of artificial organs and computer-chip implants for human brains, we now clearly recognize new uses for biotechnical power that soar beyond the traditional medical goals of healing disease and relieving suffering. Human nature itself lies on the operating table, ready for alteration, eugenic and psychic “enhancement,” and wholesale redesign.

Some transforming powers are already here. The pill. In vitro fertilization.
Bottled embryos. Surrogate wombs. Cloning. Genetic screening. Genetic manipulation. Organ harvests. Mechanical spare parts. Chimeras. Brain implants. Ritalin for the young, Viagra for the old, and Prozac for everyone.

Years ago Aldous Huxley saw it coming. In his charming but disturbing novel,
Brave New World
, he made its meaning strikingly visible for all to see. Huxley paints human life seven centuries hence, living under the gentle hand of a humanitarianism that has been rendered fully competent by genetic manipulation, psychopharmacology, hypnopaedia, and high-tech amusements. At long last, mankind has succeeded in eliminating disease, aggression, war, anxiety, suffering, guilt, envy, and grief. But this victory comes at the heavy price of homogenization, mediocrity, pacification, trivial pursuits, shallow attachments, debasement of tastes, spurious contentment, and souls without loves or longings. The Brave New World has achieved health, prosperity, community, stability, and nigh-universal contentment, only to be peopled by creatures of human shape but of stunted humanity. They consume, fornicate, take “soma,” enjoy “centrifugal bumble-puppy,” and operate the machinery that makes it all possible. They do not read, write, think, love, or govern themselves. Art and science, virtue and religion, family and friendship are all passe. What matters most is bodily health and immediate gratification. Babies and blessings both come out of bottles. Brave new man is so dehumanized that he does not even recognize what has been lost.

Huxley’s novel is, of course, science fiction. Prozac is not yet Huxley’s soma; cloning by nuclear transfer or splitting embryos is not exactly bokanovskification; MTV and virtual-reality parlors are not quite the “feelies”; and our current safe-and-consequenceless sexual practices are not universally as loveless or as empty as in the novel. But the kinships are disquieting. Indeed, the cultural changes technology has already wrought among us should make us even more worried than Huxley would have us be.

In Huxley’s novel, everything proceeds under the direction of an omnipotent—albeit benevolent—world state. But the dehumanization he portrays does not really require despotism. To the contrary, precisely because the society of the future will deliver exactly what we most want—health, safety, comfort, plenty, pleasure, peace of mind, and length of days—mankind can reach the same humanly debased condition solely on the basis of free human choice. No need for World Controllers. Just give us the technological imperative, liberal democratic society, compassionate humanitarianism, moral pluralism, and free markets, and we can take ourselves to Brave New World all by ourselves—and,
what is most distressing, without even deliberately deciding to go. In case you hadn’t noticed, the train has left the station and is gathering speed, but no one seems to be in charge.

Not the least of our difficulties in trying to exercise control over where biology is taking us is the fact that we do not get to decide, once and for all, for or against the destination of a posthuman world. The scientific discoveries and technical powers that will take us there come to us piecemeal, one at a time and seemingly independent from one another, each often attractively introduced as a measure that will “help us not to be sick.” But sometimes we come to a clear fork in the road where decision is possible and where we know that the decision we make will make a world of difference, indeed, will make a permanently different world.