Justice Ketanji Brown Jackson's Blunt Call for Government By "Independent" Experts

Independent from what? Dumb voters, of course. On this week's potentially transformative Supreme Court case, and the revival of Woodrow Wilson's vision

In oral arguments this week for Trump v. Slaughter, the high-impact Supreme Court case argued over the right of the president to fire the Federal Trade Commissioner, Justice Ketanji Brown Jackson said the quiet part out loud. From an early skirmish with hacksaw-voiced Solicitor General John Sauer:

BROWN JACKSON: You seem to think that that there’s something about the president that requires him to control everything as a matter of democratic accountability, when on the other side we have Congress saying we’d like these particular agencies and officers to be independent of presidential control for the good of the people. We’re exercising our Article one authority to protect the people by creating this independent structure. And I don’t understand why it is that the thought that the president gets to control everything can outweigh Congress’s clear authority and duty to protect the people in this way.

SAUER: Congress has a broad authority in structuring the federal government. What it lacks authority to do is to create these headless agencies, agencies who have no boss and are not answerable to the voters.

BROWN JACKSON: Why? Why does it lack – the Constitution does not say that Congress cannot create an independent agency.

Hoo, boy. There is a view — increasingly popular under Trump — that The People are too dumb to rule and need an educated vanguard class to save them from their racist, nationalist, idiot selves. In the Twitter Files and subsequent public debates about online content, it was frequently said that speech can be free, sure, but only with “guardrails.” Who’d set those “guardrails”? Experts, preferably “independent” ones. Brown Jackson’s voice creaked with impatience this week when she articulated the idea that Smart People must never be subordinate to the Dumb:

Having a president come in and fire all the scientists and the doctors and the economists and the Ph.Ds and replacing them with loyalists and people who don’t know anything is actually not in the best interest of the citizens of the United States… These issues should not be in presidential control.

What may sound like a few offhand remarks in yet another Trump-era battle about the limits of presidential power may be more like the culmination of a long-simmering, monstrously important argument about whether democracy is viable at all in complex modern societies. As Ilya Shapiro of the Manhattan Institute put it, Brown Jackson’s cri de coeur about the “rule of experts” and “independence” harkens to an old idea: “I call that the Wilsonian theory, that there’s a science to administration,” he said. “And democracy would screw that up.”

Trump v. Slaughter concerns more than the fate of the Federal Trade Commission. It’s about competing visions for the future of Western democracy, both implicitly recognizing the same problem: the world, and governments the size of America’s, may have become too technical and complex to be managed in the old way. The Trump Administration's argument, also articulated in this case, calls for enhanced presidential power to take on “headless” bureaucracies, seen as the source of problems. The flip side argued by Brown Jackson (and increasingly by former allies in Europe) calls for more “independent” agencies, who need independence from what they see as the real problem: ignorant voters.

The clash in the Supreme Court this week illustrated the “voters versus experts” divide as clearly as you’ll ever see it. The fuse to this cultural bomb was set almost 150 years ago, and is only now going off: