October 12, 2005
A Modest ProposalBy Rosslyn Smith
Should there be one non—lawyer or lay Justice on the Supreme Court at all times? Is it necessary or desirable that the Court be a uniform body of technically sophisticated specialists? Many have noted the lack of a constitutional requirement that a Supreme Court Justice be a lawyer.
Politicians and the public now seem to expect that the Court should contain a woman and a black among its nine Justices. But diversity of legal background among the Justices has actually diminished at the same time as race and gender diversity expectations have risen. Until Harriet Miers, every candidate for Justice in the past 30 years has been a sitting judge. And bench experience alone is not enough for some observers. Many critics also maintain only judges with law review articles on the resume will do. Have they considered most of these journals are edited by 23 to 24 years old students? Bright ones, to be sure, but is there another profession where intellectual developments are guided by what neophytes deem of interest?
Legislators and Presidents, the other two branches of government, don't have to have any educational or career prerequisites. They have specialized experts to draft acts and administer agencies, just as Justices have their clerks do much of the writing or research and analysis. Earl Warren was an ex—Governor, and his skill in forming consensus and managing his fellow members was well—respected, no matter what one thinks of the substantive output of his Court. Should we hand one branch of government over to an increasingly specialized cadre?
Could the Founding Fathers even comprehend a person spending his entire career teaching not the law, but just a small segment of law? Alexander Hamilton taught himself the entire New York commercial and criminal law in months and went on to be a top courtroom lawyer. No small feat for one who also made the case for adopting the Constitution in The Federalist Papers before laying down the foundation for our banking, manufacturing and trade systems.
Many say the law is more complex today because the world is more complex. The Founding Fathers were generalists, they concede, but today only a highly trained lawyer can be counted on to properly interpret the Constitution these days.
Is the world truly more complex? Or merely different? The number of people and volume of paper has increased, but so have the means to deal with it. Hamilton had only two or three collections of legal writings to study, but neither did he have Lexis and word processing. The Constitution itself is not all that much changed. Nor have the human weaknesses of greed, corruption and the misuse of power, which the Founders heeded when establishing a limited government, abated.
What are the arguments for a lay Justice in today's world?
First, persons of a non—legal background have a different perspective than lawyerly technocrats. Not only would a lay Justice have different ideas to share in deciding a case, he or she would help influence which cases are selected to be heard. The Court itself selects the vast majority of cases it hears. Nine Justices who all took an appellate career route will pick a different set of cases than a Court with a lay Justice and a practicing lawyer or two.
An analogy may be helpful: compare the movie critics for the Village Voice versus those for USA Today. The former prefer to closely dissect independent films, while the latter make assessments of the latest blockbusters, even if they offer little new to ponder for students of the cinematic arts, because they are of interest to more readers. This may seem a frivolous analogy, but in many areas of the law practitioners wait years for conflict between the circuits to be resolved, simply because the legal issue is deemed uninteresting.
A lay Justice, with a name already made in a different field, has less need to gravitate towards expansive interpretations in order to form a legacy of interest to other specialists in a rarified sphere of technical complexity. Such a person may also have become habituated to viewing the law more as fixed body, something to be dealt with along with everything else in their career, not a living thing ready to mold into a professional legacy.
Second, while some have jokingly said a non—lawyer would be handy to have around to ask "Where does it say that?", few can argue that constitutional doctrine has become increasing dense. Having a lay Justice among the nine might help ameliorate that trend, for theoretical experts in many fields have long been known to generate unwarranted complexity when left to their own devices.
Democracies depend upon the respect for and voluntary compliance with the law. At some point a law too dense for the average man to comprehend seems arbitrary and eventually becomes a law that there is no impulse to obey except through compulsion. A lay Justice is likely to ask the kind of questions that help keep the Court focused on straightforward interpretation and away from the more fanciful concepts of penumbras, emanations and expectations that have marred recent jurisprudence.
Some may ask, 'Isn't constitutional law complex for good reason?' Those who have sought expansive rulings for political ends certainly have generated complexity in recent decades. The principal document, the Constitution, however, is short, and key cases are not prohibitive in number. The issues also come in only a few flavors: resolve conflicts between the circuits on the meaning of a law or regulation; determine if proper procedures were in place and followed; and determine whether a law or regulation itself is constitutional. By the time a case gets to the Supreme Court, the job that does require a breadth of legal experience, issue identification, is over. Proposed solutions have also been put forward, often masterly, by the parties themselves. A bright person used to working with support staff should be able to understand the issues, implications and strength of the arguments well enough to work alongside the experts.
It is a common practice among boards of directors to have at least one member who can represent the consumer's point of view. This leads to the third point. In recent years the Court and its role interpreting constitutional law have become an institution too much unto itself.
The explosion of full time law school faculties, legal journals, specialized legal societies, public interest groups and web sites are as much part of the trend to judicial activism as the underlying philosophy a Justice subscribed to before ascending the bench. Some legal articles today display an almost cult—like attitude toward deliberations. Thomas smiled at that answer during orals. Kennedy sent a look to Souter when that point was raised. Wonder that that meant? The speculation can be so breathless, it reads more like a supermarket tabloid than a legal publication. Split decisions with multiple concurring and dissenting opinions spin court watchers into ecstasy as they divine the direction the law might next take.
Unfortunately concerns of real life plaintiffs and defendants have tended to get lost amid mutual admiration societies of legal geniuses. So, apparently, have historic constitutional standards such as the need to maintain limited government.
A lay member for whom the august title "Justice" is not synonymous with "brilliant lawyer" may help put the focus back on the case in controversy before the Court, and away from these organizations and their claque of professional Court watchers.
One might also expect a lay Justice to bring both knowledge of how the world works and the wisdom that comes from being held accountable for results to every ruling. Both can be in short supply among law professors and judges, as are the twin virtues they instill: patience and humility. Those virtues may, in turn, help the Court once again wait for the various state legislatures and Congress to catch up with changing standards, instead of heeding the siren's call to twist words and create constitutional doctrine out of thin air.
What qualifications should we look to in a lay Justice? I will supply names of some of my favorites as illustrative examples, but everyone could come with a list of his or her own.
Being bright is a given, but it's not the same as having a degree, much less one from a elite school. If autodidact Mark Steyn were a U.S. citizen, lack of a degree would be no bar — as far as I am concerned. His writings display insight, experience and analytic ability, not to mention a keen pomposity deflator should 'heretofores' and 'whereases' start falling like snow on Mt. Washington.
Extensive experience as a user, but not maker, of law would be valuable. Most highly successful business executives are smart, have broad experience and are extremely well versed in various technical aspects of the law, without being fans of legal theory for its own sake. Jack Welch or any of a number of other widely admired CEOs might be worth considering.
A deep sense of history is also of value, especially when combined with a personal sense of justice. Maintaining tradition is no virtue when the law has been proven an ass. Historian Victor Davis Hansen has been mentioned in this capacity. Other academics such as Thomas Sowell would be interesting, with expertise in the quantitative fields of economics and statistical analysis. A grasp the role of economic incentives and an understanding of the often unintended effects of regulation are important. Both men have endured the professional scorn of lesser minds supporting a politically correct scholarship they eschew.
There are any number of men and women who have intellects to match any currently on the Court.
Most of all the lay Justice should be someone who takes the job out of a strong sense of patriotic duty after another highly successful career. Several retired senior military officers come to mind. If he hadn't been called upon as Secretary of Defense, Donald Rumsfeld would be an interesting name for a Republican president to consider, though some might question if he has the requisite judicial temperament. Lawrence Summers would be a name for a Democrat to consider as one with a distinguished but non—legal career in public service.
It is interesting to continue speculating about specific names, but every community across the nation contains men and women of intellect who run businesses, sit on boards and man committees because people respect their judgment and because they possess a sense of duty.
During the last half of the twentieth century, the worship of credentials escalated among an ever more narrowly focused elite. Many former Justices would not be considered today, solely because they hadn't gone to an acceptable law school, or had a need to earn more money in private practice than one can on the bench. The question never asked is whether the trend of every more specialized credentials has led to better Supreme Court decisions.
Based on the recent decisions, notably Kelo, with its misinterpretation of the term "public use", the answer appears to be no. Any one of the non lawyers listed above might do far better. None is likely do worse. All would add diversity of intellect.
Rosslyn Smith is a lawyer, a CPA, and holds an MBA degree.