Random Selection for the Supreme Court

In an opinion piece in The New York Times, Yale law student Melody Wang lays out an extremely cogent argument for random selection in choosing cases. She emphasizes the power of random selection to prevent corrupt practices, and to focus advocates on directing their arguments to the general good, rather than to specific decision makers.

7 Responses

  1. In a recently published article, a colleague and I defend the random selection of supreme court judges among a predefined pool of candidates meeting the required qualifications. We argue that the random selection would reduce political intrigues and maximize judges’ incentives to act based on judicial rather than political motivations – the best we can hope for in terms of separations of powers. However, because it seems hard to deny that some qualifications are required for sound judicial review, we suggest pairing sortition with a certification process organized by judicial authorities.

    Here is the full article: https://www.academia.edu/44293873/Selecting_Constitutional_Judges_Randomly_SPSR_2020_

    In Switzerland, a citizen initiative proposed roughly the same idea and there will be a national referendum on this issue over a few months!

    Like

  2. > it seems hard to deny that some qualifications are required for sound judicial review

    I don’t find it that hard. In fact, the opposite is true in my opinion. Clearly in a democratic society any body with political power must be representative, that is, allotted among the entire population.

    The Western critique of the Chinese system is that it is based on political power wielded by an unaccountable elite which is maintained through a process of co-optation? Isn’t this exactly what the judicial branch in the Western system is?

    Like

  3. Yoram,

    I’d be in favor of constitutional courts playing a modest role. And this role is not one of representation; it’s giving a judicially-informed opinion on the constitutional validity of laws. That does require special skills. It’s a role similar to the one that a bench of experts can play: they should inform decision-makers, not impose decisions on the whole citizenry. And we wouldn’t want experts to be allotted among the whole population.

    Like

  4. Pierre-Etienne,

    > they should inform decision-makers, not impose decisions on the whole citizenry

    I agree – the proper role of experts is advisory. However, a court has decision-making power and therefore it cannot be made of experts. Experts can and should be advisors to the court, but no more than that.

    As for how those experts are selected – that should also be up to the allotted court to decide, rather than imposed from the outside. The court would be in the best position to know which advisors it should consult with and how to select them.

    Like

  5. Actually, courts do play a quasi advisory role in some countries. The US supreme court is quite unique in its powers!

    Liked by 1 person

  6. Yoram:> The court would be in the best position to know which advisors it should consult with and how to select them.

    That’s a very strong claim (especially from an epistemic perspective) how do you justify it?

    Like

  7. I think the Supreme Court and the rest of the judiciary should be chosen by jury, (for set terms of office and with a reasonable mandatory retirement age).

    Other than jury-chosen judges, it seems to me the the only other fit way for judicial decisions to be decided is by jury. If an appellate Court splits two ways, then a judicial jury can decide which opinion prevails after a fair hearing with the the majority and dissent on the Court being given equal time to make the case for their opinion to the jury.

    Such juries can be large enough scientific random samples to be “an exact portrait of the people,” or close to it.

    Re the NYT article, this is not at all adequate because it leaves intact the undemocratic and undesirable practice of judges being chosen by politicians (this is not a criticism of the article which does not address the question of how judges are chosen, but is part of the broader context). The Supreme Court hears an appeal if four of the nine justices decide it will. If the Court no longer chooses which appeals it hears, it could result in the Court hearing cases where most of the justices already are in solid agreement with the decision being appealed from. Hearing appeals that they’ve already “decided” is arguably a waste of the Court’s limited time. (When the Court does not hear an appeal the decision of the court being appealed from stands.)

    Pierre-Etienne:> random selection of supreme court judges among a predefined pool of candidates meeting the required qualifications

    Sounds like an improvement, but random selection of judges from an elite group of people is oligarchic not democratic. It would be much more democratic for justices to be chosen by jury. Also much more democratic would be for split decisions of the court to be decided by a judicial jury.

    I think we’ve had this discussion before.

    Yoram:> Clearly in a democratic society any body with political power must be representative, that is, allotted among the entire population.

    Said judicial juries would fit that bill. It would be interesting to know how often judicial juries would disagree with the majority of a jury-chosen appellate court. If never or rarely then judicial juries might not be needed, and the judicial task could be left to jury-chosen judges. (Start with judicial juries being used for non-unanimous decisions of jury-chosen appellate courts and see how often the majority of the judicial jury disagrees with the majority of the court.)

    The reason to have jury-chosen judges rather than jury-courts is legal expertise and experience, including having written opinions that are hopefully well-reasoned and show a clear rational basis for the decision. Judicial juries would decide between the legal experts when they don’t agree. I think that deciding between the decisions of the justices is within the capacity of a random sample of citizens. (It also something the general public already do to in a very inadequate, poorly informed and blunt way. By choosing the president the public can influence what kind of judges are chosen and therefore the kind of decisions that are made.)

    Like

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

%d bloggers like this: