The Despotic Branch

There was a story a few days ago concerning the Supreme Court video game related case, Brown et alia. v. Entertainment Association of America.  It seems that Justice Kagan had some...er, illuminating remarks concerning how they went about formulating their decision on whether or not video games enjoy First Amendment protection.  Justice Kagan said:

 

...the justices often turn to their clerks, who are much younger, to help them understand new technologies.

But they also try to learn on their own. In one case, involving violent video games the first year she was on the court, justices who had never played the games before dove in and gave them a try, Kagan said.

“It was kind of hilarious,” she said.

She didn’t say which games they played.

I found it interesting how the general consensus amongst the gaming press was basically "ain't it cool!" and "I wonder which games they played?"  The only appropriate response was outrage, of course....

Not about the 7-2 decision in favor of extending First Amendment protection to video games - the only sensible outcome despite the protestations of Thomas and Breyer - but about the idea that the highest judicial authority in the United States was ruling on a matter that they admitted to have no special competency in!  This should scare every American!

Of course, this is nothing new.  We often forget that the United States Supreme Court has always been comprised of nine robed lawyers.  LAWYERS.  Not scientists.  Not theologians.  Not historians.  And certainly not video game developers.  Just fallible lawyers.  Yet we entrust to them the very fabric of our society.  This is why Founding Father Thomas Jefferson expressed grave concern over the potential despotism of the judiciary in the wake of the famous 1803 SCOTUS case, Marbury v. Madison.  As he wrote:

"[T]he opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their, own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. ... The Constitution...is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.... It has long, however, been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

 ...

"At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance."

History has proved that he was correct.  Over the years we have seen the very fabric of this nation slowly twisted and contorted to suit the whims of these nine lawyers, many of whom were far from perfect human beings. 

So, in the case of Brown v. EAA, we had nine lawyers making a decision that would literally decide the fate of not just a beloved hobby the world over, but also the fate of a $67 billion dollar industry, seemingly based on a few hours (minutes?) of playing some video games selected by their clerks.  Stop and think about that - lawyers playing video games to determine the constitutionality of a regulatory law.  Is that conscientious?  Farcical?  Frighting?  All three?

I will join the rest of the gaming press in wondering just what games where chosen for this litmus test and, just as importantly, who chose them.  Were the games lighthearted fare like Minecraft?  A hardcore RPG like Skyrim?  A shooter like Battlefield 3?  A political sim like The Political Machine?  And who were the clerks who chose them?  Hardcore gamers striving to show the best gaming has to offer?  Or casual Facebook gamers who could care less about which games they chose?  I mean, the very FATE of an entire industry could have depended on just which games were selected, and who was put in charge of selecting them!

I think we really dodged a bullet here.  While I suspect that, ultimately, the decision to extend First Amendment protection to video games was based on legal precedent more than the justices' (brief) experience playing them, it nonetheless concerns me that the very fate of my beloved hobby could had come down to a single vote amongst nine video game ignorant lawyers.

This is no cause for celebration as far as I am concerned.