There will always be some who question whether AOL gets its shine from giving consumers what they want or from controlling the architecture they need to get it. Microsoft (MSFT)'s Bill Gates is one such skeptic. He is reported to have asked the FCC to check AOL's power over its Instant Messenger. It is refreshing to see this chairman, too, apparently sees the danger to competition from architectures that steer choice. Perhaps there are other examples he might now see as well.
And then there is the Supreme Court. You may recall the confident prediction in these pages that the court would not behave politically in Bush v. Gore, that if any institution was capable of looking beyond the politics of the day and holding to principle, it was the Supreme Court.
I was wrong. It is impossible to read the opinion of the court to be consistent with the ideals that I sketched.
I don't question the justices' good faith. No doubt they believed their actions were best for the nation. Not best because Republican or because pro-Bush, but best for a nation that had been caught in a spiral. The court threw a switch to avoid a train wreck, and it believed what it did was necessary and right.
But the measure of an opinion is not the good faith of its authors. The test is the persuasiveness of its reasons. On that test, Bush v. Gore fails. Seven justices signed an opinion grounded in the principle of equal protection; but five refused to apply that principle to permit an equal count of the Florida votes. There was no time, the justices said. Three said there was no time because it is the text of Florida law, not a judicial interpretation of that text, that controls, and any further count would certainly extend beyond the deadline of Dec. 12. But where did the Dec. 12 deadline come from? Not from Florida law: It was the product of judicial interpretation.
The opinion rationalizes; it doesn't reason. The rules it announces were not the law on Nov. 7; I doubt they will be the law in the future. The decision feels controlled by a conclusion, not guided to reach one. And it therefore raises an inescapable question: What motivates the conclusion? Principle or politics? Law or power?
There have been opinions in the past that have been declared "political." Time ordinarily softens this view. Brown v. Board of Education is the most famous example. After 150 years of state sanctioned segregation, Brown reversed this practice in the name of "equal protection."
The change was unprecedented. Even liberals called it "politics." But the principle in Brown had legs. And, over time, that principle has become central to our Constitution's tradition. The "politics" in Brown has all but been forgotten. The same will not be true of Bush v. Gore.
The difference between these two December decisions - one by an agency and the other by a court - is that over time, one will be seen to stand for something, and the other will not. Whatever the motives of AOL or the FTC, there is a clear principle in what the FTC has done; over time it will be seen as such.
But whether there was principle behind the motives of the Supreme Court, its decision will not be read to reflect it. However noble the ideals of the justices, their work will not be seen as nobility. It will instead fuel an argument that is repulsive to most on that court, and to this writer as well: as Justice Thurgood Marshall once wrote, "power, not reason, is the new currency of this court's decision-making." Or more simply, that politics, not law, is the rule.
Lawrence Lessig is a professor of law at Stanford Law School.
