Aristotle on the US Supreme Court and the Wisdom of the Many
The Supreme Court of the United States has been the topic of one of the most heated arguments in the past few months among the American public. After the Court's polemical decision of overturning the Roe v. Wade case, some sectors of society, apart from protesting and condemning the decision as unpopular, have gone as far as to criticize and doubt the justice of the Supreme Court as an institution. In broad terms, they argue that the common people of the nation could reach a more just decision than the limited group of nine judges. This modern debate is, in fact, intimately related to the problem of political deliberation in Aristotle's Politics, which among the many arguments that the philosopher puts forth, stands as one of the most important. The question of who should decide in the situations where the laws are vague or absent lies at the root of Aristotle's discussion of the types of constitutions, as well as of the broader justice in a community. It is the example of an ancient political problem that still prevails today, and it would be helpful therefore to approach it through the lens of Aristotle's argument.
In his Politics, the philosopher develops an argument in praise of the wisdom of the many as opposed to that of a group of few experts, which essentially agrees with the view of the section of the American public mentioned above. Aristotle's treatment of the subject and its replication in the modern opinion, although enlightening and thought-provoking, is still nonetheless, in my opinion, problematic and even utopian, especially when examined in the light of other historical events in the ancient world. Aristotle overestimates the effectiveness of communal decisions and therefore errs in his framing of the just political structure.
Aristotle explores the question of deliberation and sovereignty of the people within his discussion of the principles of oligarchy and democracy in Book III of his Politics (chapters 9-13), and ultimately uses it as the foundation to begin his analysis of the different types of kingship (3.14-18). He starts by admitting that the argument in favor of the many "presents some difficulty" (1281a39), and uses this premise as a justification for his long inquiry on the subject. Since the philosopher's argument is spread out within several chapters and intermixed with the rebuttal of the possible counterarguments he brings forth, it only becomes completely clear at the end of his dissertation. Nonetheless, in analyzing them, we can extrapolate two major reasons for his defense of the deliberation of the majority, which can be summarized as (1) because it is beneficial, and (2) because it is necessary.
First, he argues for the advantages of aggregation of knowledge. For Aristotle, when "all come together it is possible that they may surpass-collectively and as a body, although not individually-the quality of the few best" (1281a39). The collective wisdom thus created-or epistemic diversity, as it is oftentimes called-is therefore superior and more beneficial to that of few experts. Furthermore, Aristotle also adds that communal deliberation is beneficial because a larger group of people is less susceptible to passion, and therefore more capable to make decisions out of just desires for the good instead of motivated by anger or hatred. This ultimately translates in the fact that "a numerous body is less likely to be corrupted" (1286a31), which agrees in fact with the view of some Americans nowadays, who accuse some judges in the Supreme Court of having political interests instead of deliberating objectively.
Then, with regards to his second reason, the philosopher explains that it is necessary for the common people to hold some share of political power because its alternative would be dangerous for the wellbeing of the community. This is the case because for Aristotle, "a city with a body of disfranchised citizens who are numerous and poor must necessarily be a city which is full of enemies" (1281b21). Such balance of power between the few nobles and the many common people sets the foundation, in fact, for what later in his Politics Aristotle would defend to be the most just form of government: a mixed constitution with oligarchical and democratic elements alike, commonly known as 'constitutional polity'.
Aristotle's argument about the role of the people can only be understood, however, if taken together with his principle of the sovereignty of the law. So crucial is this idea to his political commentary on constitutions that he in fact refers to it in multiple occasions. According to the Stagirite, "rightly constituted laws should be [the final] sovereign" (1282a41). He sees the law as being the most important element of the constitution, as well as the supreme ruler and most legitimate promoter of the good in a polis. Law should therefore be the most powerful, and all rulers (whether few or many) ought to always follow it and only exercise judgement (i.e., be sovereign) "in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies, to make an exact pronouncement" (1282a41). This framework is still applicable to the Supreme Court, where the judges are only convened to deliberate on cases where the US Constitution is open for interpretation. Nonetheless, where Aristotle and the modern scheme depart is in the understanding of the sovereign party. For the philosopher, in these particular cases where the law is not easily pinned down, the many as opposed to the few experts should have the power of decision. Such offices include, according to Aristotle, electing officials, holding these accountable at the end of their tenure of office, and deliberating in other vague matters in the law (1282a23). The second and third occupations, of course, mainly take the form of juries and courts, where according to the philosopher the many should deliberate. This is intimately connected to the modern reality of the Supreme Court.
But before diving into the hypothetical judgement of Aristotle on the contemporary case of the Supreme Court and my own commentary of his approach, it is important to note that Aristotle himself also refutes two possible counterarguments to his theory of the wisdom of the many. And since these are also part of his argument, I will consider them as well when criticizing Aristotle's theory.
His first counterargument consists in comparing the act of political deliberation to other crafts and studying the arguable need for experts. He presents the possibility that just as in the art of medicine in order to heal a body one would seek a doctor, so too "to make a proper election is equally the work of experts" (1281b38). Aristotle refutes this claim by describing the art of political deliberation (and morality ultimately) as being different from other crafts such as medicine. Rather, he affirms that public counseling is a craft more similar to house-building, ship-building or cooking, where not only the craftsmen are knowledgeable, but also the people who would benefit from the craft. Aristotle supports this claim also by indirectly arguing for a certain sense of morality-a natural law so to speak-that every single person possesses (1282a14). And although each person's understanding of this moral framework might be individually inferior to that of the experts, if combined together they can excel in the justice of their decisions.
Aristotle's second counterargument deals with the justice of granting such power of deliberation to the common people. He studies the possibility that it might be unjust to grant the highest offices to the worst citizens, since for him "the election of officials, and their examination at the end of their tenure, are the most important of issues" (1282a23). He refutes this, however, by clarifying that the highest offices would not be entrusted to each citizen individually, but to the whole of them, and that (as he argued above) the many together would indeed be superior to the experts, and also therefore worthy of the honor of holding such office.
Given the complete and clear outline of Aristotle's argument on public deliberation as detailed above, we can now proceed to successfully apply the philosopher's opinion onto the contemporary institution of the Supreme Court. In the hypothetical case that Aristotle were to experience our modern political institutions, he would of course be astonished at numerous realities which for him would simply be unimaginable. But if he were confronted with the idea of the Supreme Court, I do not think he would be in the very least surprised. Courts and juries were a daily reality for the Greek citizens, and even written down constitutions were present in their ancient civilization (e.g., Lycurgus' Constitution of Sparta), so the nature of the Supreme Court would not necessarily be so foreign to Aristotle. Conversely, there are indeed many principles in Aristotle's Politics as well, which although reasonable in his socio-political context, nowadays they would be hard to apply within a modern democratic nation-state. An example of this could be the philosopher's argument that the citizens of a polity ought to be hoplite soldiers (1297a34). Nonetheless, there are many other political theories in his work that, if not perennial, they at least persist today still. And Aristotle's discussion of the wisdom of the many is an example of this, for it in fact anticipated other modern treatments of the subject such as Condorcet's 'Jury Theorem'.
In light of Aristotle's argument, however, we can confidently affirm that the Stagirite would disagree with the modern composition of the US Supreme Court. It reflects almost exactly what the philosopher would describe as a board of few experts, and he would therefore argue, instead, for a more communal form of deliberation. The Supreme Court is also meant to solve disputes in the interpretation of the law-i.e., when the Constitution is unclear-, and it is precisely in these cases that Aristotle defends the role of the many and their ability to reach just decisions. Thus, the Aristotelean argument agrees with what I identified to be the opinion of some sectors of today's American public, who in the past months have been questioning the legitimacy and justice of the US Supreme Court.
After considering Aristotle's argument in its totality together with the nature of the Supreme Court and the opinion of these Americans, I cannot help but depart from these and argue in favor of the current composition of the Court and against Aristotle's argument. I do indeed consider the philosopher's treatment of the subject to be enlightening, but unrealistic, nonetheless. His understanding of the wisdom of the many is in my opinion problematic and utopian, and I believe that the modern state of affairs in the US with respect to the Supreme Court is a more just framework. I agree with Aristotle in that the many should have a role in the election of officials-as it is, in fact, the case nowadays in modern democracies-, but I disagree that they should be sovereign in the deliberation of the law. In fact, as it so happens, nowadays the common public is very rarely consulted in matters of political deliberation. The only modern parallels in democratic states today are only the deliberations in extremely local councils, which indeed would be insignificant to the broader politics of the state; and the referenda, which unfortunately do not really include a communal deliberation but only reflect a vote.
There are several problems with Aristotle's argument, in my opinion. First, I think that the philosopher is contradicting himself when defending the wisdom of the many, while at the same time restricting the supposed 'many' to a very limited group of male citizens. This reflects how the misogynist and elitist way of thinking of some Greek thinkers can at times be hardly reconciled with modern political structures and principles. Second, Aristotle also seems to fall into a similar contradiction when defending the supremacy of the law, while arguing at the same time that this one should be written by experts, for in his own words: "it is surely clear that [the one best man] must be a lawgiver" (1286a21). Thus, it seems unreasonable that the law should be best when written by a single expert, but best interpreted by the common people. If the supremely virtuous men know justice best and therefore are meant to write the law, why then should we not expect them to interpret the law as well when its indications are vague? As I mentioned above, Aristotle argues that political deliberation is a sort of craft where expertise is not the final determiner (1282a14), but why should the act of moral judgement be different when writing the law and when interpreting it? These are all questions that Aristotle avoids, and which point to a clear contradiction in his argument. Furthermore, regarding the philosopher's rebuttal of the first counterargument, that of the expertise in morality, I believe he errs in the very essence of the question. The craft of deliberating about the law does not require a natural ethical disposition as much as a knowledge of the law itself and its interpretational precedents in other legal cases. And this, in fact, is the real design of the US Supreme Court, which is free from the incongruity of Aristotle's argument insofar as what rules in the Court's composition is expertise on the law and knowledge of the Constitution. Also, Aristotle presents the need for deliberation as particular to cases where the law is vague, but even in those cases there would be individuals who know the law better than others-which is, at least in my view, what truly matters. The justice behind the Supreme Court's structure, therefore, undermines and disproves Aristotle's first argument of public deliberation being beneficial.
Moreover, I believe that also the second part of his first argument, where he argues for the incorruptibility of the many, is problematic. From the Aristotelean framework itself, since law is strictly directed to the good of the community (1280b6), then knowledge of the law is equivalent to knowledge of the good (1286a21). Note that even though Aristotle rejects Plato's view of moral intellectualism, he still attributes much weight in his Nicomachean Ethics to the role of moral knowledge in the practice of virtue. And so, with regards to the corruption of the few experts, since these would be the most knowledgeable in the law, they would therefore be, according to Aristotle, the most virtuous too-just as the lawgiver should be "the one best man" (1286a21). Thus, given their moral excellence, these few experts in the law would actually be the least corruptible and the least susceptible to passion. This is in fact the case with Pericles, or at least according to Thucydides' narrative. Through his knowledge of Athenian law and identity-as exemplified in his famous funeral oration (Thucydides 2.35-46)-he became the single 'expert' ruler of Athens, for as Thucydides himself affirms, "Athens was in name a democracy, but in fact was a government by its first man" (2.65.10). And Thucydides in fact attributes the success of Pericles' government to the fact that he was "highly incorruptible" (2.65.10), a quality which is tied to his moral superiority and his knowledge of the law and understanding of justice.
The incorruptibility of the many, as presented by Aristotle, is also inaccurate, if not utopian, when studied in light of the historical evidence in Classical Athens. In reality, in any deliberation of a large group it is impossible to keep an equality of members and interventions. Instead, always and everywhere leaders arise, and only a few and not all have the chance to voice their opinions. This is the case in any ordinary group of people, such as a university class or a group of friends, and even more so in an entire city. And this desire for recognition and leadership, in turn, prompts the rise of demagogues in the polis, who are precisely the most corrupted of all, to the point that they give up their moral beliefs in exchange for public acceptance. Even the political history of Athens proves this, for in fact after Pericles' rule-the rule of an expert-the democracy of the city was corrupted and fell into the hands of demagogues who "gave up taking care of the commonwealth in order to please the people" (2.65.10). Thus, even though some may argue for the dishonesty of judges in the Supreme Court, it is important to note that the common people are not less susceptible to corruption and much less controllable when deviated from the path of righteousness. In the US Supreme Court there is an exhaustive process of admission and measures to expel improper judges, while when an entire people become corrupted there is not much that can be done to solve the situation.
The system of public deliberation outlined by Aristotle also presents serious difficulties of government. A city where the many are in charge of deliberating, even if they were to work together smoothly and equally-without leaders or demagogues arising-, it would still face the problem of indecision. Since international affairs such as war and alliances are major examples of matters where the law is vague, Thucydides' account of the Mytilenean debate can be used as evidence for this problem. The debate took place during the Peloponnesian War, when Athens had to decide on how they would punish the Mytilenean revolt, and suddenly from one day to another the people changed their verdict altogether. This event reflects the mutability of the common people in deciding political matters, and particularly through the argument of Cleon, the Thucydidian leader is confronted with the idea of democracy's inability to rule effectively (3.37.1).
Thus, after closely analyzing Aristotle's argument in his Politics and applying it to the modern problem about the Supreme Court, it becomes clear that the current state of affairs in the United States is more just and reasonable than the structure of public deliberation proposed by the Stagirite. Aristotle's argument is both problematic and utopian when examined in the light of other historical characters and events of his own time, as described by Thucydides. Overall, the philosopher overestimates the effectiveness of communal decisions and therefore errs in his framing of the just political structure.
- Aristotle. Politics. Translated by Ernest Barker. Oxford University Press: 1995.
- Gagarin, Michael, and Paul Woodruff, eds. Early Greek Political Thought from Homer to the Sophists. Cambridge University Press: 1995.