8.29.2005

the future...our future

This past Sunday's NY Times Magazine had a great cover story about some of the issues that may come before the Supreme Court in the next 30-40 years. Regardless of your politics -- conservative, liberal, centrist, etc -- this is a really important, forward thinking article. It's definitely more forward thinking than ANY of the politicians presently in office. Um, can you smell my cynicism...there's a slight underpinning of despair there... This article definitely has a political slant. If it's one that you don't agree with I encourage you to look beyond that and give some thought to the issues that Jeffrey Rosen is flagging. They almost transcend politics. I'm going to test the limits of a blog posting here as this was a long article. If you'd like me to email you the text of the article just drop me a line.

Roberts v. the Future
By JEFFREY ROSEN
Published: August 28, 2005

I. The Future Is Not the Present
Three years ago, in a small conference room at the offices of the law firm Hogan & Hartson in Washington, I had the chance to talk with John G. Roberts Jr. At the time, Roberts was a lawyer in private practice, unsure whether Senate Democrats would hold a hearing on his nomination to be a federal appellate judge. (After being nominated three times, in 1992, 2001 and 2003, he would finally be given a hearing and confirmed in May 2003 after Republicans took control of the Senate.) In a conversation over cookies and coffee, Roberts spoke candidly about a wide range of topics, and I was impressed by his modesty, intelligence and sense of humor.

Now that Roberts has been nominated to the Supreme Court, something else about our conversation strikes me: he was acutely sensitive to the unpredictability of history and the surprises that the future tends to bring. At one point, the conversation turned to the thesis he wrote in 1976 as an undergraduate at Harvard, in which he analyzed the fate, decades earlier, of the British Liberal Party. After winning one of the biggest landslides in British history, in 1906, the Liberals appeared to be destined for a long period of dominance. But in fact the party never won another election because of a series of political miscalculations. The lesson of this particular episode of history, Roberts seemed to suggest, was that politicians -- and judges, for that matter -- should be wary of the assumption that the future will be little more than an extension of things as they are.

Roberts's point might be useful for senators to keep in mind as they prepare to question him at his Supreme Court confirmation hearings, which are scheduled to begin on Tuesday, Sept. 6. Since Roberts's nomination to replace Sandra Day O'Connor was announced in July, Senate staff members have been combing through legal memos that Roberts wrote, many while he was still in his 20's, hoping to find hints of his views about the most controversial issues of the past generation -- from civil rights to affirmative action to abortion. It's not surprising that lawyers, who are trained to look backward, instinctively deferring to precedent and tradition, would parse memos from two decades ago as clues to how Roberts would perform on the court.
But in the case of Supreme Court nominees, looking backward may not be the most reliable way to predict the future. During William Rehnquist's confirmation hearings, first as a nominee for associate justice in 1971 and then for chief justice in 1986, the discussion focused heavily on a memo he wrote as a law clerk that seemed to question the soundness of Brown v. Board of Education. By expending so much of their energy on the issue of segregation, the senators asked little, in the end, about the issue that would come to define the Rehnquist court -- the relationship between the federal and state governments.

To judge from comments in the press from Senate Judiciary Committee members, the same sort of myopia may characterize the Roberts hearings. That would represent a missed opportunity: in the next 10 or 15 years, as technology and science continue to advance and America's demographic profile continues to change, the Supreme Court will, in all likelihood, be asked to decide a fascinating array of divisive issues that are now only dimly on the horizon. To try to identify more concretely what those issues might be, I recently canvassed a number of technology experts, bioethicists and legal scholars.

The topics that they discussed amount to a Brave New World of constitutional disputes. As Congress and the states pass legislation to address a host of futuristic issues, from the genetic enhancement of children to the use of brain scanning to identify criminal suspects, the laws will inevitably be challenged in court, raising novel and surprising questions about how to interpret our constitutional rights to privacy, equality and free expression. Rather than focusing on Roberts's past, the senators questioning him might get a better sense of his future on the Supreme Court by imagining the issues of the next generation. The court's response to those issues, far more than its resolution of cases that will be decided next year, will define the role it will play in the first decades of the 21st century.

II. Brain Fingerprinting and the Future of Privacy Rights
In the wake of the recent London bombings, the New York subway system implemented random bag searches, and the London Underground announced plans to introduce high-tech body scanners that peer through clothing. In the coming years, if technology advances as expected and the threat of terror fails to subside, Western democracies will develop ever more sophisticated and intrusive forms of surveillance, many of which will be challenged in court as a violation of rights to privacy and equality. Not long ago, I visited Marc Rotenberg, the head of the Electronic Privacy Information Center, a civil-liberties group, at his office in Washington and asked him what form he thought the new legal battles over surveillance technology might take.
Sketching out a hypothetical situation, Rotenberg imagined, in the near future, a young man walking around the Washington Monument for 30 minutes while waiting for a friend. Meanwhile, sophisticated biometric camera systems (which can register the details of someone's face), connected to data-mining computer programs (which link the face to a database of personal information), monitor the young man. The cameras might also detect, say, a copy of the Koran he is carrying under his arm. Taken together, this information is used to generate a ''threat index'' based on how suspicious the high-tech profiling makes him out to be. ''According to the computer algorithm, pacing around a national monument might be a suspicious activity characteristic of someone intending to commit a terrorist attack,'' Rotenberg said. ''The link between his face and his travel records and magazine subscriptions, maintained by a big commercial database, might generate a citizenship trustworthiness score that suggests further investigation.''

Based on a low trustworthiness score, the young man might be stopped by the police, who might open his backpack and find a bag of marijuana. Would the examination of the backpack amount to an unconstitutional search or seizure?

On the current Supreme Court, Rotenberg noted, a challenge on constitutional grounds to this kind of search might face an uphill battle. In January, in a 6-2 decision written by the court's most liberal justice, John Paul Stevens, the court upheld as constitutional a dog sniff of a driver who had been stopped for speeding. (When the dog barked, the cops opened the trunk and found marijuana.) The dissenting justices, David Souter and Ruth Bader Ginsburg, expressed concern that the majority opinion cleared the way for the police to turn drug-sniffing dogs on large groups of innocent citizens without cause to suspect illegal activity. But even Ginsburg and Souter said there might be nothing wrong with the use of bomb-detection dogs if they were effective in identifying potential terrorists.

According to the court's logic, whether a threat-index system that places citizens in different categories of suspicion violates the Constitution might depend on how accurate the threat indexes turn out to be. But even if the indexes turned out to not be very accurate, Rotenberg suggested, a justice like John Roberts, should he be sitting on the court, might not be inclined to question their use. In two recent cases as an appellate judge, Roberts was very deferential to searches and seizures by the police. In one case, he reluctantly upheld a Washington policy requiring the arrest of a 12-year-old girl who ate a French fry in a Washington Metro station, and in the other, he argued in dissent that the police should have been allowed to search the trunk of a car after stopping the driver for having a broken light. (The officers found a loaded gun in the trunk, a discovery that Roberts's colleagues in the majority contended had to be suppressed because there had been no probable cause to search the trunk in the first place.) ''Roberts seems untroubled by what people would think of as pretextual searches,'' Rotenberg said.

If polls about the U.S.A. Patriot Act are correct (only 22 percent of Americans say it goes too far in restricting people's civil liberties to fight terrorism, while 69 percent are content with it or say it doesn't go far enough), many people may not object to data-mining technology that promises to identify potential terrorists. But if the war against terror escalates further, the government may deploy even more controversial forms of electronic surveillance.

To explore the promises and dangers of these technologies, I phoned O. Carter Snead, a bioethicist at the University of Notre Dame who is studying neuro-imaging techniques that can detect the presence of electrochemical signals in the brain. Promoters of this so-called brain fingerprinting, which uses functional magnetic resonance imaging, or f.M.R.I., say that it can detect brain activity that is associated with particular kinds of recollection. (In an appeal of a murder conviction in Iowa, for example, a brain scan was introduced that suggested that the murderer's brain did not contain information about the murder but did contain information consistent with his alibi.) Snead imagined that these scans might be used in the future to interrogate, for example, suspected terrorists accused of having trained in Afghanistan. ''Officials who are examining the suspects could hook them up to an f.M.R.I. device, show them pictures of the battlefield in Afghanistan, and if they've been in that particular place before,'' the device would detect the corresponding brain activity, he said.

It's an open question, under the Supreme Court's current doctrine, whether f.M.R.I. scans, used as a sort of high-tech lie detector, would be considered a form of compulsory self-incrimination that violates the Fifth Amendment. If the justices viewed an involuntary brain scan as no more intrusive than a blood or urine sample or an ordinary fingerprint, there wouldn't be any Fifth Amendment problem. But if the court were to decide that f.M.R.I. scans are not only searching for physical evidence but also encroaching on a suspect's private memories and consciousness, the justices might conclude that the suspect's mental privacy is invaded and that he has been forced to testify against his will.

There is also the possibility that police officers or counterterror experts may eventually search suspects for brain waves that suggest a propensity toward violence -- a sort of cognitive profiling. ''You can do an f.M.R.I. scan showing that the structures in the brain responsible for impulse control and empathy are underactive and the parts of the brain responsible for aggression and more animalistic, violent activities are overactive,'' Snead explained. ''Maybe with these nascent technologies, we'll be able to develop some kind of profile for a terrorist.'' Suspects who show a propensity for violence might be detained indefinitely as enemy combatants even though they committed no crimes.

When I asked William Stuntz, a scholar of criminal procedure at Harvard Law School, about the legal ramifications of these technologies, he argued that brain scanning will put tremendous pressure on the court's understanding of privacy. The traditional definition of privacy protects the sanctity of information that people go out of their way to conceal from the world. But brain-scan technology can access personal information that is neither actively hidden from view nor meant to be exposed to the public. ''There's a whole category of information about our bodies and our brains that we don't keep secret from the world in the way that I keep secret my sex life or my finances,'' Stuntz said. ''It's not that they're invading my space or my bedroom or my car. It's that they're invading me.''

III. Genetic Screening and the Future of Personal Autonomy
Every Supreme Court confirmation hearing since the election of Ronald Reagan has been marked by efforts -- nearly always unsuccessful -- to predict the nominee's views on Roe v. Wade. The Roberts hearings are unlikely to prove an exception. If Roberts is confirmed, he will have two opportunities in the next Supreme Court term to reveal some of his views about the potential implications of Roe -- in one case involving a teen-health exception in parental-notification laws and in another concerning the federal power to prosecute protesters at abortion clinics. Regardless of whether Roe v. Wade remains on the books in 10 or 20 years, however, America's political and legal disputes about reproduction may well have moved far beyond efforts to balance the interests of a fetus against the interests of a pregnant mother. Instead, the country will most likely be debating the use of sophisticated technologies involving genetic manipulation and reproductive cloning outside the womb -- controversial procedures that may prompt restrictions or bans by state legislatures or Congress. In order to get a better sense of these coming debates, I turned again to O. Carter Snead, who recently served as general consul to President Bush's Council on Bioethics, to describe the kinds of developments that might give rise to Roe v. Wade-like controversies.

The first issue he mentioned was genetic selection. In the future, he noted, scientists may have analyzed much more of the genetic makeup of embryos created through in vitro fertilization. They might then be able to use that information to help aspiring parents implant in the woman's womb only those embryos that display a specified range of desired characteristics -- including those having to do not only with sex but also, perhaps someday, traits like intelligence, eye color and height. Not all the traits that parents demand will be conventionally desirable: a few years ago in the United States, a deaf lesbian couple attracted attention (and criticism) by deliberately choosing a deaf man as a sperm donor in order to increase their chances of having a deaf child. And if scientists ever learn to identify a genetic predisposition to homosexuality with a high degree of certainty, genetic screening might be used to ''weed out these embryos,'' as Snead put it, ''or to select for them.''

The political response to so-called designer babies might create strange bedfellows. ''Feminists are rightly concerned that male embryos will be routinely selected over female embryos,'' Snead noted, which is why many feminists say they would oppose the practice. (''As we increasingly come to see our children as commodities to be chosen, like consumer products, they will be devalued in ways that we will come as a society to regret,'' the feminist Judy Norsigian, co-author of ''Our Bodies, Ourselves,'' told me. ''This kind of sex selection would create a sex imbalance, and it would reinforce preferential attitudes toward male children.'') Social conservatives would also oppose these efforts, but out of concern for the right to life of fertilized embryos. Earlier this year, in fact, a Republican state legislator in Maine introduced a bill to ban abortions based on the sexual orientation of the unborn child. Snead imagined that a conservative state might pass a law banning genetic screening ''for elective sex selection or sexual-orientation selection not linked to a therapeutic concern.''

How would the Supreme Court view the constitutionality of a state law banning sex selection? In 1992, when it reaffirmed Roe in Planned Parenthood v. Casey, the court held that the Constitution protects a right of personal autonomy. The scope of this right would be at the heart of disputes over genetic technologies in the future. If the Supreme Court agreed to hear a constitutional challenge to a law banning sex selection, for example, the conservative justices might find themselves divided. Justices like Antonin Scalia, a states-rights conservative who advocates deference to local legislatures, might vote to uphold the law, while a libertarian conservative like Anthony Kennedy, who argues that the Constitution protects a broad sphere of autonomy over intimate and personal decisions, might vote to overturn it.

At the moment, the Kennedy-style vision of personal autonomy is most vigorously defended among legal scholars by a law professor at the University of Texas at Austin named John Robertson. He argues that the right to have offspring or not, recognized in Roe v. Wade, necessarily entails some right to select the characteristics of the offspring. ''The liberal notion of autonomy over reproduction includes some right of selectivity that logically could extend to nonmedical traits,'' Robertson told me, ''but how far has to be sorted out by the Supreme Court and the country.''

Should the Supreme Court try to draw the line between those traits that parents can select for and those traits they can't? If so, where should the justices of the future draw that line? It seems quite unlikely that John Roberts, for one, shares Robertson's broad view of the right to autonomy and privacy: in a 1981 memorandum to Attorney General William French Smith, Roberts referred to ''the so-called 'right to privacy' '' and suggested that ''such an amorphous right is not to be found in the Constitution.'' Even those justices who do not share Roberts's apparent skepticism about the right to privacy might share a reluctance to decide, by judicial fiat, the mysterious point at which screening for genetic disabilities becomes screening for genetic enhancement.

When I spoke recently with George Annas, a professor of bioethics at Boston University, he pointed out that genetic screening by prospective parents for Down syndrome is already widely accepted. Couples in the future, he said, may naturally insist that if they are permitted to screen for genes associated with a low IQ, they should also be allowed to screen for those associated with a high IQ. Judicial decrees about the scope of privacy rights will not settle this debate. Rather than presuming to define the boundary between therapy and enhancement on the basis of its understanding of privacy doctrine, the court might serve the country better by leaving that agonizing decision -- which has confounded our leading scientists and philosophers -- to democratically accountable legislatures.

Another area of potential controversy is reproductive cloning. At the moment, there is no widespread clamor for the practice. But it's not hard to imagine, for instance, a growing demand in the near future among parents who might want to clone a terminally ill child or, according to Snead, among same-sex couples looking for a way to produce children that are genetically related to both parents -- something that reproductive cloning may be able to offer.
To consider the second situation, here is how two men could possibly have a child of their own: scientists would create a cloned embryo from one man, derive stem cells from the embryo and then coax the stem cells (which can be used to create any tissue in the body) into a human ovum. The ovum would then be fertilized by the sperm of the other man, conceiving an embryo that would be implanted in a surrogate's womb. ''The baby would be genetically related to both men,'' Snead told me, ''much like a baby conceived through sexual reproduction.'' It's certainly possible that Congress would be moved to ban this kind of noncoital reproduction. ''You could imagine a bill,'' Snead went on to say, ''that says that children shall be conceived only through the union of egg and sperm taken from an adult human.''

A bill along these lines would clash with the broad vision of personal autonomy endorsed by Kennedy on the current Supreme Court. In the future, however, supporters of laws banning reproductive cloning might be able to call on conservative judges and legal scholars to make arguments for upholding the legislation. Just as some liberals insist that the constitutional right of personal autonomy guarantees a right of genetic selection, some social conservatives are increasingly countering that the constitutional guarantee of equal protection of the laws should be interpreted to protect embryos from the moment of conception -- including those that are destroyed in the process of generating stem cells.

I spoke recently with Robert P. George, an influential conservative legal philosopher at Princeton, about the possibility that this view might persuade a future court. ''If, in fact, the embryo is, as I think the science shows it is, a full living member of the species homo sapiens,'' he said, ''and if by the word 'persons' the framers of the 14th Amendment meant to protect full living members of the species homo sapiens, then plainly, the creation of embryos for destruction would be a violation of their equal protection. That would be straightforward, and I would see no room around it.''

Although George's legal argument represents a minority view at the moment, there may be some political momentum gathering for his way of thinking. Illinois, for example, has defined human life as beginning from the moment of conception, and earlier this year, an Illinois judge invoked this declaration to hold that a frozen embryo accidentally discarded in a fertility clinic was a human being whose parents were entitled to file a wrongful-death suit. If the Supreme Court were to hold that all embryos in America are full human beings entitled to equal protection under the Constitution, researchers engaged in stem-cell research across the country might be similarly liable for homicide.

If a future and more conservative court accepted George's argument, even an attempt by Congress to authorize carefully regulated stem-cell research and therapeutic cloning could be deemed an unconstitutional attempt to deny embryos the equal protection of the laws. Of course, it's hardly obvious that the Supreme Court in 2015 or 2025 would recognize embryos as constitutional persons -- certainly no member of the current court has yet endorsed this bold argument. And any effort by an activist conservative Supreme Court to stop Congress from authorizing stem-cell research would be a serious affront to the wishes of a majority of Americans. Some scholarly advocates on both sides of the political spectrum have acknowledged that the justices might do better to allow the future of reproduction to be settled by Congress and the state legislatures, a view that George endorses. ''I hope we won't be thinking in 2025 with a narrow court-focused view,'' he said. ''I like the trend toward respecting the authority of other branches of government to deliberate about constitutional questions.''

IV. D.N.A. and the Future of Affirmative Action
If current demographic trends continue, over the next few decades the United States will become more diverse. The Census Bureau estimates that the number of non-Hispanic whites may shrink to less than half of the population before 2060 and that Hispanics will soon outnumber blacks. As intermarriage rates continue to rise, more and more Americans will consider themselves multiracial. This is a recipe for conflicts over affirmative action and public entitlements.

To better understand these coming battles, I phoned Peter H. Schuck, a professor at Yale Law School and the author of ''Diversity in America: Keeping Government at a Safe Distance.'' Schuck emphasized what he called ''the growing and palpable absurdity of color-coding and racial preferences in a population as hybridized, individualistic and immigration-driven as ours.'' He predicted a rise in the number of state limitations or bans on affirmative action, as well as the increasing fragility of Grutter v. Bollinger, the 5-4 Supreme Court decision in 2003 that upheld affirmative action in higher education.

In her opinion for the court in Grutter, Sandra Day O'Connor noted that ''it has been 25 years'' since the court first approved the use of racial preferences in higher education, and she added that ''since that time, the number of minority applicants with high grades and test scores has indeed increased.'' O'Connor concluded hopefully, ''We expect that 25 years from now, the use of racial preferences will no longer be necessary.''

What to make of O'Connor's prediction? There's no guarantee, first of all, that in 25 years O'Connor's opinion will still be the law of the land. In Grutter, she cast the swing vote on a divided court, and if Roberts succeeds her, he may view affirmative-action programs less indulgently. (As a young Justice Department official in 1981, he wrote a biting criticism of a defense of a federal affirmative-action program by the outgoing head of the United States Commission on Civil Rights.) Even if the Supreme Court continues to approve of affirmative action in higher education in 25 years, it's possible to imagine a challenge to the policy from a rejected white applicant, arguing, in effect, that O'Connor had promised that affirmative action would no longer be necessary by 2028. In response, defenders of affirmative action might argue that O'Connor was too optimistic, and that racial preferences were still necessary to maintain educational diversity in the face of continuing gaps in grades and test scores.

But would this reply persuade the court to preserve affirmative action beyond its expiration date? Schuck pointed to a recent paper from the National Bureau of Economic Research expressing skepticism about O'Connor's prediction. The study notes that the gap between white and black test scores, which narrowed in the 80's, actually widened in the 90's. And the authors of the study conclude that black economic gains over the next 25 years are likely to lead to less than 20 percent of the level of black representation at universities that affirmative action currently guarantees. How a justice like Roberts, presumably an affirmative-action skeptic, would respond if this pessimistic situation came to pass is hard to predict, but he might be reluctant to extend the term for another 25 years with no end in sight.

Affirmative-action programs may also be challenged by people other than disappointed white applicants. As America becomes increasingly multiracial, there may be debates over who, precisely, gets to qualify for racial preferences. Akhil Reed Amar, a colleague of Schuck's at Yale Law School, told me that people might eventually resort to genetic tests to prove their racial heritage. ''I can imagine a predominantly white person who has been rejected because of an affirmative-action program saying, 'I should benefit from it because I am of mixed race, and I can prove it with sophisticated DNA analysis showing the percentage of my genes that came from Africa,' '' he said. ''The university might respond: 'It's not a genetic test but a social understanding test, and since people don't perceive you as black, you haven't been subject to discrimination.' ''

In response to disputes like this, Amar suggested, state legislatures might conclude that ''the social-understanding test is unacceptably fuzzy, and at least science can give us some rules. So the government might require a genetic test because it's easy to administer.'' If, however, a state legislature were to declare that anyone with a drop of African-American blood is entitled to be considered black, the policy might provoke a bitter Supreme Court challenge. ''It would recall the shameful history in times of slavery and Jim Crow,'' Schuck told me, ''in which one drop of blood was sufficient to render an individual black for the laws of slavery. And it would be extremely distasteful for blacks and whites.'' Still, Schuck acknowledged, the problem of deciding who is eligible for affirmative action will grow only more urgent in an era of shrinking public resources. ''I think as pressure on affirmative-action programs increases,'' he said, ''affirmative-action programs will have to make refined judgments about eligibility.''

V. Old Age and Drug Legalization
If birth rates continue to fall and life expectancy continues to rise, a population made up increasingly of older Americans may bring about a host of constitutional issues of its own -- issues ranging from government financing of gene therapies to the legalization of painkilling drugs. Francis S. Collins, director of the National Human Genome Research Institute, has written that within five years, ''it is likely that predictive genetic tests will be available for as many as a dozen common conditions, enabling individuals to take preventive steps to reduce their risks of developing such disorders.'' The medical profession may respond by customizing drugs and other treatments to suit an individual's distinctive genetic profile, possibly tailoring them not only to prevent disease but also to enhance a patient's cognitive and physical capacities. ''By 2020,'' Collins predicted, ''the impact is likely to be far more sweeping than any of us can envision today.''

Who will pay for these gene therapies? Samuel Gorovitz, a bioethicist and philosopher at Syracuse University, told me recently that in the future, states may well prohibit health care organizations that receive state financing from providing access to these therapies -- at least those that border on enhancement. ''A state legislature might decide that any kind of enhancement is unconscionable,'' he said. Prohibitions like this might provoke court battles over whether states and the federal government have an obligation to finance genetic therapies that can cure identifiable diseases. In the past, the Supreme Court has been reluctant to require the states to finance medical care for the poor. In 1977, for example, the court upheld a Connecticut law that prohibited the use of public money for abortions, except those that were ''medically necessary.'' But identifying which genetic therapies are medically necessary to cure disease and which are merely elective enhancements may prove just as agonizing in cases involving public money for the old as in cases involving reproduction for the young.

The Supreme Court may also face increasing pressure from an aging population to remove federal barriers on controversial drugs. William Stuntz, the Harvard professor I spoke with about brain scanning, is 47 and suffers from chronic back pain. He suggested that his common disability will afflict many more Americans as baby boomers age over the next 20 years. ''My generation will include lots of very old people, who have more chronic pain than middle-aged people and also get cancer at higher rates, and both of these trends will massively change the way the baby-boom generation thinks about drug policy,'' he said. ''I'd never had any prescription pain medications until I spent the last five years on them for back pain, and anyone who has that experience will think very differently about what drugs should be on the prohibited list.''

Last June, by a 6-3 vote, the Supreme Court upheld Congress's authority to dictate national drug policies, even in the face of a California voter initiative that authorized the use of medical marijuana. ''I bet a case like that would come out very differently in 20 years,'' Stuntz said. He suggested that political demands may lead states to enact more lax laws authorizing the use various variants of morphine, which are federally prohibited but useful in treating a variety of pain. ''Only those laws won't be coming from California but from Florida and Arizona,'' he said. ''Old people are traditionally statist on these issues, but aging baby boomers may well become more libertarian because they want to be able to design everything from the way they die to personalized medical treatments.'' At the beginning of the new Supreme Court term in October, in fact, John Roberts would most likely have an opportunity to explore whether the federal government has the power to ban the use of drugs for assisted suicide, despite an Oregon voter initiative to the contrary.

VI. Property, Free Expression and the Right to Tinker
At Roberts's confirmation hearings, a central focus will be the nominee's views about the scope of Congress's power to regulate the economy and the environment. As a federal appellate judge, Roberts once questioned the constitutionality of some applications of the Endangered Species Act, and Arlen Specter, the Pennsylvania Republican and chairman of the Senate Judiciary Committee, has told Roberts that he intends to ask him about recent Supreme Court decisions narrowing Congress's power to regulate interstate commerce. As important as these issues are, during the next decade or two there may be other, less familiar legal debates over the scope of rights involving private property -- in particular, the ability of corporations and entrepreneurs, through the use of copyright and patent law, to control a broad spectrum of intellectual property, from digital entertainment to genetic sequences.

As books, music and movies are increasingly distributed by large corporations in digital form, entertainment and publishing corporations are clamping down on the ability to access copyrighted material -- sometimes by persuading Congress to extend copyright protections and sometimes by devising ingenious technological ways to block users from making copies of the product. Many digital activists fear that free expression won't be able to thrive if people are deprived of the right to sample, remix and tinker in a world where every copyright infringement can be recorded, punished or technologically impeded.

The guru of digital activism is the Stanford law professor and cyberspace visionary Lawrence Lessig, whom I recently reached by telephone in Spain. ''As life moves increasingly onto the Net and the capacity to control every aspect of our cultural capital increases almost to perfection, the question will be whether there is an affirmative right of access, to use and remix,'' Lessig said. Three years ago, as the lawyer for an Internet publisher of works in the public domain, Lessig failed to convince the Supreme Court that the purpose of copyright law -- to promote creativity -- was undermined by the automatic copyrighting of all creative works for the life of the author plus 70 years (as it is after the Sonny Bono Copyright Term Extension law added 20 years to existing copyright protections.) Lessig argued unsuccessfully that the First Amendment is threatened in a world where artists, for example, must solicit permission from lawyers at major movie studios before using 10-second clips in their video art -- virtually a requirement in the current scheme. In 10 or 20 years, Lessig told me, the problem for digital activists will be copyright restrictions that are enforced not by lawyers but by computer code and digital-rights-management technology. These technologies can ensure that everyone who buys an electronic book or tune can copy it as many as five times, for example, but no more.

At the moment, copyright law contains an exception for ''fair use'' -- an artist or biographer, for instance, can quote briefly from copyrighted books or songs. But as movies, books, songs, games and the computers that transmit them are increasingly controlled by digital-rights-management technology, they might be made impervious to copying or sampling, even for the brief quotations that fair use now protects. Bloggers, for example, might find themselves technologically unable to cut and paste from future books.

''Imagine a world where 90 percent of the stuff you read and watch and listen to is on very high-definition screens,'' Lessig said. At that point, our ability to access books and movies and music online will determine the degree to which we can put them to other creative uses. ''When libraries loan books,'' Lessig continued, ''they don't make a copy, so it's not regulated by copyright, but when all content is in digital form and every use produces a copy and is subject to copyright law, there's an affirmative right that has to be asserted -- a right to access.'' Lessig told me that Congress might try to extend the terms of copyright yet again when the Sonny Bono Copyright Extension expires in 2019. He said that the only way to persuade a Roberts-era Supreme Court to strike down further extensions is to mobilize a political coalition in the country around the importance of digital free expression. ''You speak to conservatives by pointing to this extraordinary loss of resources caused by overregulation,'' he said, ''and you speak to liberals by pointing to the lost opportunities for creativity and free speech.''

Edward Felten, a professor of computer science at Princeton University, told me that he hopes in 20 years that Americans might be able to assert a newly recognized constitutional right -- rooted in the First Amendment -- to circumvent the obstacles posed by digital-rights-management technology. He calls it ''the constitutional right to tinker.'' Felten began thinking about the right to tinker several years ago, when he became aware of the legal complications that were increasingly cropping up in his own discipline of computer science. ''Researchers were worried about the possibility of legal threats from companies whose interests were affected by their research,'' he recounted in a recent phone conversation. In fact, Felten has firsthand knowledge of how the threat of lawsuits can inhibit creativity: a few years ago, he and his colleagues were about to publish an academic paper about a set of anticopying technologies being considered by the record industry. When a consortium of companies that had developed the technology threatened to sue the scholars for violating federal copyright law, Felten and his co-authors had to withdraw the paper (although they eventually won the right to publish it).
Chastened by the experience, Felten decided to articulate what, exactly, is threatened when researchers aren't permitted to experiment without first consulting their lawyers; he hit upon the concept of tinkering. ''The process of experimentation, not always with a direct goal, is captured by the term tinkering,'' he said. Whether the Supreme Court ever recognizes tinkering as a constitutional right, the ability to tinker may be threatened not only in computer science but also in the life sciences as well. Genetic material is increasingly being patented, Felten noted, and many biologists worry that the tools they need in the lab to carry out research on genetic diseases -- like individual gene sequences in genetically engineered animals -- may become entangled in patent disputes.

Efforts to patent the building blocks of life may not only raise hard issues about scientific freedom. They may also ultimately force American society, and perhaps the Supreme Court, to debate the moral and constitutional issues raised by efforts to patent human life itself. To explore those issues, some of which seem more like science fiction than others, I phoned James Boyle, a professor at Duke Law School, who wrote about the topic nearly a decade ago in his prescient book ''Shamans, Software and Spleens.'' Boyle, imagining a coming constitutional battle over patents and human life, told me that ''we already allow patents on genetically modified organisms -- mice who have a predisposition to various forms of cancer suffered by humans, for example. What about a patent on a chimp with genetically enhanced intelligence? Or a 'meat puppet' -- not sapient but looking like a human being, intended for use as a sex toy, say?''
Even if the market for humanoid sex puppets were to take off unexpectedly, the United States Patent and Trademark Office has announced that it won't issue patents on human beings -- that would violate the constitutional prohibition on slavery and involuntary servitude. But identifying what counts as a human being may be an increasingly challenging task. For example, Boyle explained, patenting chimp gene sequences is now legal. ''If someone created a chimp with an IQ of 75 and limited vocabulary,'' he said, ''I hope the Patent and Trademark office and the Supreme Court would draw the line and say no, no, no.''

Confronted with patents on sapient life forms that resemble human beings, legislatures will face tremendous pressure to intervene. Still, the task of defining human life might be so politically explosive and embarrassing that Congress might ultimately prefer to punt the controversy to the Supreme Court. ''Congress might well say you can't patent human life, but the question is, What's that?'' said Boyle, who imagines a future constitutional case being brought on behalf of ''a high-IQ genetically engineered dolphin'' or, perhaps more plausibly, a computer program for artificial intelligence that seems to perform human functions. Either the dolphin or the machine might assert a right ''not just to be free of patent rights, but to be free of any ownership rights at all,'' as Boyle put it. And there is precious little in the existing categories of constitutional discourse that would prepare the justices to identify the point at which an organism with a genetic sequence or artificial brain similar to a human deserves constitutional rights. ''This is kind of 'woo woo' stuff,'' Boyle said. ''But I could see an interesting jurisprudential train wreck coming up.''

VII. What the Hearings Should Accomplish
It seems unlikely that John Roberts's confirmation hearings will result in the nominee speaking unguardedly and at length on abortion and other controversies of the moment, or in the Democrats thwarting his confirmation. (Roberts is a conservative; he is also intelligent, able and possesses, by all accounts, a judicious temperament.) What, then, would be the most productive use of his confirmation hearings? It would be illuminating for the senators to ask the man who will be, if confirmed, the first new justice of the 21st century some probing questions about the Supreme Court of the future -- including how, in the broadest sense, it should prepare to handle cases arising from the technological and social changes of the coming decades.

In particular, the senators might ask Roberts to reflect on the following historical paradox: Why has the Supreme Court, often considered the least democratic branch of government, traditionally been most effective when it has reflected the constitutional views of the country as a whole? The Supreme Court decisions that have tended to maintain their legitimacy over time -- like the decisions in the 1960's protecting free speech and racial equality -- are those that deferred to values that had already been debated and accepted by a majority of the American people. By contrast, the least effective Supreme Court decisions -- the decisions most likely to be attacked and resisted -- have been those in which the court unilaterally imposes constitutional principles that are actively and intensely contested by a majority of the country.

Is this historical lesson one that the 21st-century court should heed? Like the rest of us, of course, senators can't confidently predict the particular controversies that the future will bring. As Roberts understood as a college student, history is full of surprises, and in 10 or 20 years, many of today's efforts to speculate about the constitutional future may look shortsighted and naive. But precisely because constitutional futurology is not an exact science, Roberts suggested in his conversation with me three years ago, judges should be reluctant to second-guess the decisions of elected legislators.

''Do I think it's a good thing that at least once every 30 years, the Supreme Court says something that motivates Congress to focus a little more closely on why it's regulating in a particular area?'' he asked. ''Yes, I do think that's good.'' But he stressed that ''there has to be a lot of legal room in the joints, and the Supreme Court has to remind itself on a daily basis that it occupies tenuous ground.''

Roberts's point about the importance of judicial deference will be all the more important in an age when activists on the left and the right contend that only judges and other professionals will have the expertise to resolve the complex technological and bioethical disputes of the future. For the truth is that the issues most likely to divide the country in coming years will remain, at heart, more political and moral than technological. If the court tries to impose the views of political minorities, whether liberal or conservative, in the face of public resistance, it risks provoking social turmoil. Whether Roberts will be a deferential conservative, as he appears to be, or a unilateralist conservative, as his opponents fear, will be a central question for the Senate to explore. But his repeated paeans to the importance of modesty, stability and deference to democratic outcomes should be heard and embraced by all who will eventually sit on the court in the 21st century.

Jeffrey Rosen, a law professor at George Washington University, is a frequent contributor to the magazine. His new book, ''The Most Democratic Branch: How the Courts Serve America,'' will be published next year by Oxford University Press.

7 comments:

Kelli Bennett said...

oh my...what a brain bender attempting to process the issues he brings up. i loved this article. i feel 'excited' for the possibility of two men (or women) being able to 'conceive' a child biologically yet i'm completely on the fence about the brain scanning possibilities and privacy issues. all of it so trippy to digest.

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