Should we have lay justices?

• Author: Vermeule, Adrian

INTRODUCTION I. FACTS, LAW, AND ASSUMPTIONS A. Facts B. Law C. Assumptions 1. The objectivity of law 2. Professional expertise 3. Right answers 4. Judicial motivation 5. Other rules held constant 6. Other courts? 7. Political constraints ignored II. LAY JUSTICES AS ERROR-MINIMIZERS A. The Expertise Argument for Lay Justices 1. Some taxonomy and terms 2. Lay Justices, expertise, and bias B. Tradeoffs and Uncertainty C. Deliberation and Expertise D. Dual Competence? III. THE REPRESENTATION OF EXPERTISE A. Make or Buy? B. Incorporating Legal Expertise C. The Benefits of Representation IV. PROBLEMS AND IMPLICATIONS A. Decision Costs B. Endogenous Agendas, Endogenous Rules? C. Intracourt Deference D. Extensions and Scope CONCLUSION: PHILOSOPHER-KINGS AND ACCOUNTANT-JUSTICES "I told you before I'm not a scientist. (Laughter.) That's why I don't want to have to deal with global warming, to tell you the truth.'"

--Justice Antonin Scalia ([dagger])

"Breyer says that if the only thing that matters is historical truths from the time of the Constitution, "we should have nine historians on the court.' Scalia says.... that a court of nine historians sounds better than a court of nine ethicists. "

--Dahlia Lithwickt ([double dagger])

INTRODUCTION

By "lay Justices" I mean Justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay Justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins--methodological diversity, ideological diversity, and racial or ethnic or gender diversity (1)--say little or nothing about professional diversity on the Court.

I shall suggest that the optimal number of lay Justices is greater than zero, under specified empirical conditions. I do not know whether those conditions actually hold, but on the other hand no one knows that they do not. It is very plausible that the conditions do hold, in which case the status quo of zero lay Justices is an implausible extreme. In the strong form of the argument, it would be a good idea (whether or not it is a politically feasible one) to appoint a historian, economist, doctor, accountant, soldier, or some other nonlawyer professional to the Court. In a weaker form of the argument, I also suggest that at a minimum, we should appoint more dual-competent Justices--lawyers who also have a degree or some other real expertise in another body of knowledge or skill.

The topic of lay Justices has been examined only briefly in previous work, (2) and only on populist or jurisprudential premises quite different than the ones advanced here. It is no part of my argument that it would be more "democratic" to have courts with some nonlawyers; that some fraction of the cases that reach appellate courts are pervasively indeterminate, so that legal expertise runs out; (3) or that law, or constitutional law, or Supreme Court constitutional law, is "politics" anyway. (4) Rather the argument is based on expertise. Lay Justices have technocratic advantages: a Court with at least some lay Justices will reach more right answers across the total set of cases than will a Court with zero lay Justices.

To bias the inquiry against lay Justices, I assume that law is an objective body of knowledge to which legal training supplies privileged access; that there is a single right legal answer in all cases, even hard cases; and that Justices are sincere and vote their best assessment of the legal merits in each case. Even under these assumptions, I suggest, a multimember Supreme Court with some lay Justices will do better at reaching right legal answers in some class of cases, and will plausibly do better on net across all cases, than a Court composed solely of lawyer Justices. This is because legal training will cause lawyer Justices to do worse on average at deciding an important class of cases, even according to legal criteria, than nonlawyer Justices. At a minimum, a Court with some dual-competent Justices will do better in this class of cases than a Court composed solely of pure lawyers.

The relevant class is made up of cases in which law itself requires that judges make decisions based in part on nonlegal knowledge. There are two subclasses of cases within this class: (1) cases in which law draws upon specialized knowledge that is not itself legal, such as economic, medical, or military expertise; and (2) cases in which law draws upon knowledge that is neither specialized nor legal, such as knowledge of "the mystery of human life" (5) or "evolving standards of decency." (6) In the former subclass, nonlawyers bring to the bench distinctive expertise that can make decisions better. In the latter subclass, lawyers have systematic and correlated biases induced by common professional training, but a bench composed of both nonlawyers and lawyers will have uncorrelated or random biases or at least a lower degree of correlation; the aggregate decisionmaking competence of the group will thus improve if the Court contains at least some lay Justices.

There are tradeoffs to be made because lay Justices will do worse than lawyer Justices in cases where specialized legal knowledge is all that matters. But no sensible guess about the shape of the tradeoffs would suggest that the optimal number of lay Justices is zero. A well-motivated appointer--a kind of benevolent planner for the judiciary--would appoint more than zero lay Justices, in part to diversify and thereby hedge our bets in the face of uncertainty and disagreement about how a well-functioning Court should be composed. The costs and benefits sketched here apply, in diluted form on both the cost and benefit side, to the appointment of dual-competent Justices.

Part I provides factual and legal background and then adopts an array of restrictive assumptions, deliberately biased in favor of a bench exclusively composed of pure lawyer Justices. Part II, the core of the discussion, identifies the major tradeoff: although a bench composed solely of pure lawyers will minimize judicial error in cases in which law draws solely upon specialized legal knowledge, a bench with some lay members will do better at minimizing error when law draws upon knowledge that is not both specialized and legal. So long as the latter class of cases is not trivial, then a multimember court that includes more than zero lay members is likely to minimize errors across a total array of cases that includes both classes. At a minimum, dual-competent Justices would improve on the current Court, which is dominated by pure lawyers.

Part III examines an important objection: the bodies of knowledge that drive the argument in Part II can be incorporated into judicial decisionmaking through deference to administrative agencies, special masters, and juries, and through briefs and arguments by parties and amici curiae. This is a question about whether people with the relevant bodies of knowledge should be brought inside the boundaries of the judicial firm; it is analogous to the make-or-buy decision that private-sector firms face. Under conditions of high transaction costs, I will suggest, it is better to appoint people with the relevant knowledge to the bench than to rely on case-by-case incorporation of knowledge. On this view, expertise in domains outside of law should be institutionalized through a kind of representation, by putting at least some nonlawyer Justices or dual-competent Justices on the Court.

Part IV examines some problems and implications, such as the effect of lay Justices on decision costs; endogeneity issues, such as the effect of lay Justices on the Court's agenda and on the content of the legal rules it creates; whether lay Justices would be excessively deferential to lawyer Justices, or vice-versa; and whether and how the argument extends to lower appellate courts in the federal system or to other types of courts. A conclusion follows.

1. FACTS, LAW, AND ASSUMPTIONS

   1. Facts

      Lay judges are hardly novel. Many legal systems today use lay judges at some levels of the judicial hierarchy. I will briefly survey some major liberal democracies and other nations, but we should be aware of subtle institutional factors that make comparison difficult. Chief among these are that in many legal systems law is not taught in separate professional schools; judging is a separate career from advocacy rather than a later stage in the advocate's career; and judges may--by the terms of their tenure, position, and promotion--be more analogous to Anglo-American administrative officials than to federal Article III judges or Justices. Still, some sense of the comparative landscape helps put matters in perspective. (7)

      In the United States, lay judges of various sorts sit in some forty states, although usually on low-stakes matters, and in some cases subject to de novo review by a lawyer-judge. (8) In the United Kingdom, Lords without legal training heard appeals in the House of Lords until 1834; (9) today, lay magistrates or justices of the peace hear certain classes of civil and criminal cases, (10) In Germany, lay judges sit on all courts of first instance that have criminal jurisdiction; in the Amtsgericht, which hears civil and less serious criminal cases, one professional judge sits with two lay judges, whereas in the Landgericht, which hears all serious criminal cases, three professional judges sit with two lay judges. (11) Japan recently introduced lay judges into its criminal justice system. Criminal cases are heard by a panel composed of three career judges and six lay judges, but the career judges cannot be narrowly outvoted; when the decision is made by a majority vote, the majority must include at least one career judge. (12)

      It is sometimes assumed that lay judges are only used on (1) courts of first instance and (2) in low-stakes matters, such as might be handled by a justice of the peace. However, a...