Future Issues for State Supreme Courts
By Glen Hiemstra, 2001
On July 31, 2001 I had the opportunity to address the annual conference of Chief Justices of the Supreme Courts of the 50 states, U.S. Territories, and their Court Administrators, sponsored by the National Center for State Courts. My topic was “Societal Changes in the 21st Century”. The real question of interest to the Justices was what technological and social changes might impact their courts in the next couple of decades.
“In our time, digital, biological, and nano technologies are combining to change our lives.”
I reviewed with them the nature of a techno-social-economic revolution, which I have frequently argued that we are living through. Just as a century ago electricity, telephones, and automobiles combined to complete the final industrial revolution. In our time, digital, biological, and nano technologies are combining to change our lives. The Chief Justice of the Supreme Court of Washington noted that the state’s “Temple of Justice” was built in 1913 in Olympia, Washington. I observed that many of the institutions that characterized the 20th Century were developed in response to the final industrial revolution. Now we are confronted with a need to re-think many institutions.
I described drivers of change to the Justices. These include the three key technologies. Digital technologies were familiar to the audience, and they already wrestle with how to integrate and use computing and telecommunication technologies to improve their operations and to improve access to justice. Tongue only partly in cheek, I noted the early work of Sohail Inayatullah on the “rights of robots“, and suggested that about the year 2022 Boeing machine tools might go on strike for three hours of daily free time to explore the Web, and that they might seek a court injunction. This got a laugh, but the Ray Kurzweil idea that the intelligence of digital devices may begin to rival human intelligence near the end of the first quarter of the century was a sobering thought.
Biotechnologies are both familiar and of keen interest to the Justices and Court Administrators. Later in the day, in a session on “Genetics Science” designed and presented by the Einstein Institute for Science, Health and the Courts, the conferees considered three case studies involving biotech. Each case study was introduced by Dr. Franklin Zweig, President of EINSHAC.
In one mock legal case, a fictitious fertility clinic was offering human cloning as a means of last resort to childless couples, and the state in which the clinic was located was asking for a restraining order to prevent this service from proceeding. Linda Ashworth, a scientist from Lawrence Livermore Lab and a senior science fellow at EINSHAC, described the genetic technique involved. Legal issues were described as well. In a straw poll those justices and administrators willing to vote indicated they would allow the cloning to continue given the issues of the mock case.
Next, the Justices looked at the use of DNA to identify criminal suspects. Rufus King, Chief Judge of the Superior Court of the District of Columbia, and Ms. Ashworth made presentations on DNA forensics technology, illustrated with segments of a Jury training video. The Justices learned that PCA or gene chip readers were advancing to the point were DNA can be analyzed in about seven minutes. Shortly, such technology should enable crime investigators to analyze DNA evidence at the scene of crimes, and thus eliminate the “chain of custody” problem that trips up so many criminal investigations. (This problem crops up when attorneys can argue that DNA evidence may have been contaminated while being passed from detective to investigator to lab, and so on.)
Finally, the Justices considered the implications of using genetic information to discriminate in employment settings, in a presentation by Paul Miller, Commissioner, U.S. Equal Employment Opportunity Commission. Robert Bell, Chief Judge of the Court of Appeals, Maryland, and Richard Guy, Chief Justice, emeritus, of the Washington State Supreme Court made brief comments in response. The prospect of genetic discrimination is not a long-term future issue, but rather is of immediate concern. Miller described one case of alleged genetic discrimination that has been settled out of court already, between a Fortune 500 company and the Equal Employment Opportunity Commission. Within just a few years for about $100 a person may be able to walk up to a shopping center kiosk, and obtain a genetic profile, which could include what disease markers or probabilities they have. How do you keep this information private? How do you prevent employers from using it? What if a person obtains this information but keeps it secret from a fiance, who later sues for fraud when the person becomes ill?
Nanotechnolgies were a mystery to the Justices, only a few having heard of this emerging field (a result that is typical of all audiences I speak to).
Non-technological drivers of change that I described include four aspects of demographics, the aging population (the U.S. states will have 27 Florida’s by 2020, that is, states with 20% of the population or more over the age of 65), the emergence of the Dot Com generation, Latin and Hispanic immigration leading to a blending of the U.S. borders, and the impending long-term decline in the global population. Additional social trends were noted, including shifting family dynamics, welfare reform indicating a shift of societal values and assumptions, and the amazing decline in crime during the last decade. Continuing environmental imperatives mean that state courts will have numerous and bitter environmental disputes arriving at their doors.
To conclude, I suggested to the Justices that the most important non-technological trend for them in the next decade or two is a shift away from government-based solutions to social problems. That is, beginning about 1980, we began to shift away from an assumption that large social problems were the responsibility of large government to solve. Peter Drucker has elsewhere noted this shift, and suggested that a growing non-profit sector will arise to deal with social issues, and there is evidence that this is taking place.
For the State Courts, this shift away from government solutions means two things. First, they are caught up in a continuing debate or conversation about the role and purpose of government in the 21st Century. What is that we want government to do, and what does this mean for the various branches of government? More importantly, the shift is really one in which legislatures increasingly avoid controversial decisions. They tend to either shift controversial decisions to referenda, or simply shift the hard decisions to the courts. Futurist Jim Dator has argued that representative legislatures are not able to respond quickly enough to match the speed of change in a techno-social-economic revolution. Thus, he says, “The relevance of elected legislatures is fading away, while more governance is being given to judiciaries.” Courts become the government branch that we expect to make final decisions, and to make them more quickly than legislative processes.
The Justices seemed to agree that they are not generally trained to be futurists and philosophers as well as legal experts, yet they next two decades will demand these skills of them. Like all of us, they face a great deal of change and challenge.
Glen Hiemstra is a futurist speaker, author, consultant, blogger, internet video host and Founder of Futurist.com. To arrange for a speech contact Futurist.com.
Additional Resources
Rights of Robots by McNally & Inayatullah.
The Age of Spiritual Machines by Ray Kurzweil.
Judicial Governance of the long blur, by Jim Dator.
EINSHAC, the Einstein Institute for Science, Health and the Courts.
