More on lay justices
Mike's interesting post on the idea of non-lawyer justices on the Supreme Court brings to mind a recent article by Adrian Vermeule of Harvard Law School, entitled "Should We Have Lay Justices?" In a word, Vermeule's answer is "yes." As he says in the abstract, "I argue that the optimal number of lay justices [on the Supreme Court] is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill."
There's quite a difference between the "strong" and "weak" forms of Vermeule's argument. The former calls for lay justices drawn from other fields; the latter calls for justices trained in the law who are also expert in some other field -- viz., for interdisciplinary justices. Let's focus just on the latter version. What do readers think of it, as opposed to what we have now? Interdisciplinarity is increasingly common in the legal academy, or at least in some sectors of it. I tend to think that's a very good thing, even as I continue to think (somewhat self-interestedly) that there remains an important role for more conventional disciplinary scholarship as well. But what do readers think of the call for interdisciplinarity at the Court? I have a few thoughts of my own on that score, but before offering them I want to hear what others think.
There's quite a difference between the "strong" and "weak" forms of Vermeule's argument. The former calls for lay justices drawn from other fields; the latter calls for justices trained in the law who are also expert in some other field -- viz., for interdisciplinary justices. Let's focus just on the latter version. What do readers think of it, as opposed to what we have now? Interdisciplinarity is increasingly common in the legal academy, or at least in some sectors of it. I tend to think that's a very good thing, even as I continue to think (somewhat self-interestedly) that there remains an important role for more conventional disciplinary scholarship as well. But what do readers think of the call for interdisciplinarity at the Court? I have a few thoughts of my own on that score, but before offering them I want to hear what others think.
posted by Trevor Morrison @ 9:34 AM
2 Comments:
At 12:13 PM,
David C. said…
If interdisciplinary Justices are to be the solution, then what's the problem? It seems to me that the most common criticism leveled against the Court's constitutional rulings is that they are merely reflections of the personal tastes of a handful of elite, unelected judges. If that's the problem, it seems that the solution wouldn't be adding an extra degree for these justices---unless, of course, the degree pertained to public opinion research.
Of course, occasionally there are rhetorical arguments by a dissent that go something along the lines of: The majority is resolving a moral/philosophical issue, but the majority only has expertise in the law; the majority is no better at resolving moral/philosophical issues than the voters. In that case, adding a Ph.D in philosophy might seem an attractive answer. But this doesn't seem to be right, for a few reasons.
First, a moral/philosophical issue that is too "difficult" for five supreme court justices means that it is likely extraordinarily complex, and probably hotly disputed within academia. Having one philosopher justice on the Court would likely mean that her view would prevail, even if it wasn't the academic consensus. We wouldn't be getting the "right" answer on difficult moral questions necessarily, just an educated one. You can add a second philosopher to the court, but then we end up with what we have now---a court steeped in a debate about a moral issue, where the majority gets lambasted by the dissent for simply imposing its own view.
Second, there seems to be something truly problematic about a Constitution that can only be correctly interpreted by a Ph.D. The Constitution is a highly democratic document, suggesting that it should be accessible, at least in the first instance, to the average (or at least somewhat educated) citizen and elected official. Judicial review is an acknowledgement that things occasionally get screwy for individuals, and we need judges to resolve these issues when they do. But the reason we have judges for these issues is because of the ways these issues arise---in the context of ordinary litigation. There is a fiction that every case before the courts is primarily about resolving *legal* issues and granting relief to the plaintiff(s); the courts are not (under this fiction) there to resolve difficult moral issues when the voters screw up. This begs the question about Vermuele's strong argument, and I think we need J.D.s on the courts because lurking in the background of any seemingly simply constitutional issue about, say, "cruel and unusual punishment" regarding a prison policy are questions of state action, sovereign immunity and official immunity, legal vs. equitable relief, standing, pleading/production/proof standards, preclusion (if previously litigated), etc., and it seems that an educated layperson might soon be overwhelmed by the ancillary issues in the case. This isn't to say that lawyers are smarter or abler scholars than non-lawyers; this is only to say that they've been trained (hopefully) to be on the lookout for such issues, and to understand the available methodologies for resolving them. But calling for Ph.Ds on the court destroys this fiction---it essentially admits that the Court is there to do more than resolve the individual litigants' problems. It paints the Court as an institution that is there to supervise the democracy, an image that begins to seem somewhat against the spirit of our democratic Constitution. In other words, the Constitution is primarily democratic, allowing the voters to resolve the tough moral issues. Courts don't sit to explain to the electorate that the losing voters had the better moral argument; they are there to provide relief to individuals who have suffered legal harm. This is, of course, largely a fiction, but an important one nonetheless, insofar as it leads to a psychology of some judicial restraint. Judges should speak almost exclusively of the law when resolving the issues. If they start staking out positions in debates between Rawls and Finnis, we might be right to think they are exceeding their role as judges, and instead starting to look like philosopher kings.
Finally, I think that to argue that we don't need (or want) interdisciplinary Justices is not to say that the law need be blind to other academic disciplines. First and foremost, scholars can make their arguments before legislatures and the electorate, resulting in laws that come before the Court after educated debate. Undoubtedly, the Justices will have access to these arguments through their newspaper reading on their own time, and through their review of committee hearings with expert testimony, and statutory findings. Justices also have access to the trial record, and experts can testify in trial court about, say, the pain that a combination of lethal injection drugs inflicts on a prisoner; a study that shows that Georgians discriminately apply the death penalty; arguments about the effects of campaign finance on elections, etc. And where they don't get in at trial, they can be submitted through amicus brief. It seems much more effective to have a community of scholars that can provide expertise on all issues, representing all views, providing arguments that the Justices can evaluate, rather than simply trying to pick nine Justices that are expert, and represent all expert views, on any issue that might come before the Court.
At 3:39 PM,
Adam P. said…
I dont think the "JD" or any educational requirement is the issue. Since as a credential, the JD is one of the least consistent, I think we're really saying that "lawyers"- based on education and professional experience- are the class that monopolizes the court.
I think the problem with the idea of "adding" interdisciplinary justices is that it assumes all lawyers represent the same way of approaching a problem. Each case before the Court shows this is rarely true. Not just in terms of ideological bent, but looking at the kinds of experiences each Justice brings to the bench, we can see this is a falsehood. A Justice who spent his pre-SCOTUS career as a politician (say Warren) will bring a very different perspective than someone like Breyer or Scalia- academics, for the most part. Roberts- a nonacademic- marked a departure in this way, though he spent his career in Supreme Court litigation. Marshall also stands out, as being a civil rights litigator, and Ginsburg straddles that and the academic fence.
However, no ones arguing that we should have fewer academics appointed to the bench in this thread. Obviously, theres a self-interest there, but why not? Academics arent the "smartest" lawyers,nor do they make the best judges necessarily....
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