In a provocative, and tongue in cheek, editorial. the Instapundit, Glenn Reynolds, opines in USA Today that it’s time for some real diversity on the Supreme Court.
Maybe it’s time to name a non-lawyer to the Supreme Court. There’s nothing in the Constitution that requires Supreme Court justices to be lawyers, and there are some pretty decent arguments as to why non-lawyers should be represented.
If he wanted to be outrageously ridiculous, he could have proposed that a criminal defense lawyer, someone with experience trying cases on behalf of the accused, even (gasp) a lawyer who didn’t attend Harvard or Yale, be nominated, or someone who had never served as a federal judge, district or circuit. Any one of these diverse qualifications would have distinguished a nominee to the point of having no chance whatsoever of being nominated, no less confirmed, by this or any other Senate.
But then, as long as we’re musing about impossibilities, go big or go home. So non-lawyer it is.
But law is supposed to govern everyone’s actions, and everyone is supposed to understand it. (“Ignorance of the law,” as we are often told, “is no excuse.”) But when the Supreme Court is composed of narrowly specialized former judges from elite schools, the likelihood that the law will be comprehensible to ordinary people and non-lawyers seems pretty small. (In addition, a recent book by my University of Tennesseecolleague Ben Barton makes a pretty strong case that lawyer-judges systematically favor the sort of legal complexity that, shockingly, makes lawyers rich.
The “makes lawyers rich” part is a gratuitous smack. Whether deserved or not is a matter of perspective, since so many lawyers are struggling to survive. Getting rich isn’t on the table. Feeding the family would be an achievement.
But that judges tend to increase the complexity of the law isn’t a controversial assertion. I’ve characterized the legal system as a Rube Goldberg machine, where new decisions often add bizarre new parts to the already unwieldy machine. Judges don’t care. They often fixate on the case before them, do whatever mental gymnastics they have to do to reach their desired outcome, and hope nobody notices that their strained rationales are full of shit. Since they can’t allow themselves to let the bad dude go, one more exception won’t matter, right?
The Supreme Court is one-third of the federal government, and the other two branches, Congress and the presidency, are already dominated by lawyers. But there are hundreds of millions of Americans who aren’t lawyers, and surely some of them are smart enough to decide important questions, given that the Constitution and laws are aimed at all of us. Shouldn’t we open the court up to a little diversity?
So maybe he didn’t actually give a strong reason for putting a non-lawyer on the court. There are hundreds of millions of Americans who aren’t brain surgeons, and surely some of them are smart enough to perform brain surgery, given that all of us have brains. Not really a very strong argument.
But there’s a point to be made here, even if Glenn didn’t make it, in favor of having a non-lawyer on the Big Bench. Among the many valid criticisms of the justices of the Supreme Court is that they’ve spent their lives in a cocoon, disconnected from Emma Lazarus’ “huddled masses yearning to breathe free.” They write about fictional cops who resemble Sheriff Andy on steroids. No cop in a Supreme Court opinion ever screams at a kid who did nothing more than live while black to “drop motherfucker” before plugging him for no particular reason.
Despite the use of “surely,” Glenn is right. There are non-lawyers smart enough to decide important questions. despite their lack of training and experience in the law. No, not you. (Not me either, but then, I’m a lawyer so I don’t count.) But some non-lawyers are non-lawyers for just this reason; they were smart enough to find something more societally useful to do with their lives.
I see here on occasion the non-lawyer whose insights into legal issues are absolutely brilliant, outside the lawyer box and yet, illuminating for just that reason.
The introduction of thought to the Court that transcends the tyranny of black letter law, legal rubrics that are so ingrained in our lawyer-psyches that we can’t step back from the Rube Goldberg machine to see how ridiculously badly it works, how poorly it serves society’s needs, and most importantly, how full of shit the end result can be.
It wouldn’t be easy to incorporate into a system built on a foundation of a gazillion rules and exceptions. Nor would the system be easily deconstructed, even if the non-lawyer was successful in those private conferences the justices hold where they sip Scotch and grumble about the unfairness of internet media criticism. Nothing built over a few hundred years is easily torn asunder. And certainly there are reasons for each cog added to the machine, conflicted purposes, points to be made and lost, rights at risk that require deferential parsing of jurisprudential philosophies.
But what if there was one person who, after carefully listening to this august group of deeply sheltered minds express the collective wisdom of the legal ages, said, “you know, I get it, precedent, stability, consistency, (rifling through the 412th edition of Black’s Law Dictionary) stare decisis. But if we don’t say ‘enough,’ these weasel lying cop cowards will just keep killing unarmed people for no reason, and that’s got to stop.”
Of course, the non-lawyer justice could also be the guy who says, “so what if the cop is a lying weasel coward; better we back him than the criminal, you know, because of the children.” Glenn Reynolds is right that the notion of a non-lawyer justice isn’t inherently crazy, but if he’s to speak for the hundreds of millions of non-lawyer Americans, we can’t be sure what he’s going to say. It’s not like we haven’t had non-lawyer judges before, and they haven’t always served with honor and distinction. Then again, the same can be said for lawyer judges.
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I wonder if Glenn realizes his proposal would let Mary Anne be appointed.
Risk reward ratio, but it would be a shame to see such a bodacious idea squandered.
‘…something more societally useful.” Yea, we like that.
This non-lawyer served as juror on a one-day criminal trial this week. The other five jurors were a scary bunch.
They were unable to comprehend the simplest legal concepts, or follow the judges instructions.
Nine years ago, we wrote an op-ed, “Our Broken Jury System”. We now have further confirmation that the jury system is broken. Or is it? We deadlocked 5-1: Mistrial. We won after all; verdicts must be unanimous. A non-lawyer on the S.C.? Can’t hurt, might help.
Can hurt, Bill. Can hurt a lot.
And if the other five jurors scared you, imagine how scary you were to them.
Stood on my chair in front of the picture window to demonstrate what it was like to have your arms uncomfortably handcuffed behind your back. Yea, we were in the moood! Only one of the five claimed to have ever been arrested and handcuffed. No one had ever spent one nite in jail. This is not acceptable if you’re going to sit on a jury of your peers. Jurors need to have some relevant “life experiences”. The best part was, the Commonwealth bought take-out lunch and brought it to us during deliberations. Was so worked up, I could not eat. Our Life Goal was thus achieved!
Of course we would really like to have a CDL on the high bench, preferably someone who went to a second-or-third-rate law school. Ha. Ivy Leaguers need not apply! “Harvard and Yale,… sit down, sit down; … get em outta here. Security, get em outta here before I do.!?!”
Wouldn’t the non-lawyer judge still have a lawyer law clerk?
I read somewhere (maybe even here) that the role of the law clerk was to find the precedent (maybe requiring some shoehorning) to do whatever the hell the judge wanted to do anyway.
Asking for a friend.
There’s no requirement that the law clerks be lawyers. In fact, they don’t have to be “law clerks,” and could just as well be juggalos (or juggalettes, as the case may be).
“Juggalettes” is a sexist microaggression. Just because women can’t exercise consent like men and require infantilizing protections doesn’t give you a pass to oppress them by using patronizing suffixes.
Blame google. I look to authoritative sources.
The whole damn system is guilty.
Well, that follows.
We need more victims on the Supreme Court. After all, SCOTUS spends a lot of time deciding cases of victims. Victims Rights!
We also need more stupid people on the Supreme Court, idiots may occasionally be represented, but the truly stupid shouldn’t be limited to running for public office.
Hey, the argument that holds true for non-lawyers similarly holds true for the unrepresented imbecile.
But, then, we’d likely always be doing “justice” and not “law,”
SCOTUS would become like the securities arbitration panel my dad sat on as a member of the public.
“we try to do the fair thing” isn’t what I want in a high court.
Fairness, justice, dignified, balance. All wonderful and meaningless words. Yay!
What we need is mediocrity to best represent the public, regardless of profession. As the late Senator Roman Hruska said of nominee G. Harrold Carswell
How about comprehension. Us non-lawyer types expect that the lawyers will understand rulings, but most laws were not written for lawyers but by lawyers, they were written to impact the rest of us. I have heard it argued that a random sixth grade class should perform a reading comprehension test on all rulings. That might simplify things so that the common person might get it. Not to change the ruling, but write it in such a way that the sixth graders…get it. Then publish. This would do well for the legislatures as well.
One thing is certain. Sixth grade reading comprehension would go up…way up. Congress would see to that.
The thing I see missing from the court is common sense. The language of the constitution is fairly plain. Follow it. If a non lawyer isn’t the answer to instill that, could we get a mandatory common sense course for law school?
OK, beat me up!
It is. And it’s not. The Constitution is an extraordinary document, in that it works so well in so many ways. But the scope and breadth of human experience has proven that nothing is ever simple, and we humans keep coming up with situations, questions, challenges that strain every word. And there is no such thing as common sense. Get over it.