Judicial sortition helps Congress and the Supreme Court

There are different ways to win a debate. One of the most common techniques in politics is to make a straw man argument. Straw man arguments are prevalent in political debates because they refute opponents without having to engage their ideas directly. Straw man arguments rely on exaggerated and inaccurate claims to deflect attention away from the opposing view. That is, they succeed by sidestepping constructive debate altogether. However, doing so prevents participants in a debate—and its onlookers—from gaining a better understanding of the underlying issue in contention.

For example, consider Matthew J. Franck’s response—“The Immodest Proposal of Judicial Sortition”—to my recent proposal to reform the process of picking Supreme Court justices. It is a classic example of a straw man argument. In his critique, Franck attempts to deflect attention away from my central claim by misstating my thesis, distorting my idea and exaggerating the effects of my proposed reform. In the process, he conveniently avoids a constructive debate over the merits of my proposal and the need for Supreme Court reform more broadly.

Under my plan, the Supreme Court’s eight associate justice seats would be filled by a random draw out of the nation’s 179 circuit court judges—assuming no vacancies. The judges selected would take a temporary leave of absence from their circuit-court duties to serve on the Supreme Court for one year. At the end of that year, they would return to their respective circuits, and another randomized draw would select new circuit court judges to take their place on the Supreme Court in the following year. 

My proposed reform is needed because Supreme Court justices have their own opinions. Those opinions make it possible for people to make educated guesses about how the Court will decide specific cases in the future. And that incentivizes people to use litigation strategies to achieve their policy goals in the Supreme Court instead of in Congress. Judicial sortition changes these incentives by making it impossible to know which justices will hear a case in advance. Doing so encourages people to pursue legislative strategies to achieve their policy goals in Congress and the state legislatures. 

Judges are human

Franck’s straw man argument begins by asserting that I “erroneously claim the support of Federalist No. 10 on the factious behavior we should expect in political life.” But he does not provide any specific evidence to counter my interpretation of James Madison’s argument in Federalist 10. For example, Madison writes “the diversity in the faculties of men” prevents Americans from having a “uniformity of interests.” Madison argues that “the protection of these faculties is the first object of government.” This diversity “ensures a division of the society into different interests and parties.” Contrary to Franck’s assertions, Madison expects factious behavior to exist in society and in government: “The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of government.”

But instead of engaging Federalist 10 specifically, Franck moves on to accuse me of “conspicuously ignoring” other Federalist essays that detail “Publius’s expectations for an apolitical independent judiciary.” And, as before, Franck declines to elaborate on his claim or specify the essays to which he refers.

Franck employs these two assertions at the outset of his critique to cast doubt on my initial claim that Supreme Court justices have prior opinions that make it possible for people to make educated guesses on how their cases will be decided in the future. He distorts my argument to suggest that I believe Supreme Court justices to be incapable of deciding cases in a way that runs counter to their opinions. But, of course, that is not my point. I argue instead that the mere existence of justices’ views incentivizes people to use litigation strategies to achieve their goals instead of legislative strategy. 

Contrary to Franck’s distorted view of my position, my proposed reform is consistent with an original understanding of the Constitution, which seeks to preserve the Supreme Court’s apolitical role by structuring the judicial selection process to prevent anyone from dominating the Court by having exclusive control to decide who sits on it.

Human nature makes such an approach necessary. As Madison observes in Federalist 51, “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.” Madison notes that the best control on government is “a dependence on the people” when picking those who serve in it. The problem, however, is that relying on the people to select Supreme Court justices directly would undermine the Court’s apolitical role. That is why the Constitution’s Appointments Clause creates a joint presidential-senatorial role in the confirmation process. The arrangement avoids Supreme Court justices being dependent on any one branch. My proposal preserves that arrangement while reducing people’s incentives to punt controversial policy questions to the Court using litigation strategies to achieve their policy goals.

Congress can enact judicial sortition

Franck claims my proposal “is utterly impracticable without a constitutional amendment.” He argues that “no circuit judge serving today has an appointment that authorizes his or her service on the Supreme Court, while each of them…has a constitutionally protected permanent tenure.” But Franck does not elaborate on his claims or provide evidence to support them.

A closer look at the historical record clearly demonstrates that implementing my proposal would not require a constitutional amendment. Congress already has the power to require circuit court judges to serve temporarily in a different capacity as associate justices on the Supreme Court. The Constitution grants Congress the ability to determine the size of the Supreme Court, where it meets and when it meets. And the Constitution gives Congress the power to create and abolish “inferior Courts,” as well as to determine their size, where they meet and when they meet. Congress also can determine how all federal courts conduct their proceedings.

Congress used these powers to create the federal court system in 1789. Section 1 of the Judiciary Act of 1789 created five associate justice seats on the Supreme Court, and sections 3 and 4 created the district and circuit courts, respectively. Section 4 also stipulated that the newly created district court judges and Supreme Court justices had to serve in a different capacity as circuit court judges—requiring them to “ride circuit.” It also set the time and place when the circuit courts met.

Congress later used its power over the federal courts to eliminate the requirement that district court judges and Supreme Court justices serve as circuit court judges. The Judiciary Act of 1801 also abolished one of the associate justice seats on the Supreme Court that Congress created in 1789. Congress repealed that law a few weeks later, forcing district court judges and Supreme Court justices to ride circuit once again.

District court judges and Supreme Court justices complied with Congress’s directive to ride circuit for 102 years. (Congress repealed its directive in 1891.) And the Supreme Court upheld section 4 of the Judiciary Act of 1789 in Stuart v. Laird, just one week after the Court refused to comply with section 13 of the same law in Marbury v. Madison. Justice William Patterson wrote for the Court that the justices’ prior acquiescence to the riding circuit requirement was “a contemporary interpretation of the most forcible nature” and that it “ought not to be disturbed.”

If Congress has the power to require district court judges and Supreme Court justices to serve as circuit court judges, common sense suggests that it also can require circuit court judges to serve as associate justices on the Supreme Court. 

And Congress does not have to wait before enacting judicial sortition until “each and every seat on the federal circuit courts…fall vacant,” as Franck claims—even though he previously argued that it would take a constitutional amendment to implement my reform. During the 102 years in which district court judges and Supreme Court justices rode circuit, they were nominated only for their seat on the district or Supreme Court. But that did not prevent them from being required to ride circuit. For example, President John Adams nominated John Marshall to be chief justice. He did not also nominate Marshall to serve as a circuit court judge. But Marshall served as a circuit court judge at Congress’s bidding for the entirety of his career on the Supreme Court.

Critique is not based on reform

Franck next makes several exaggerated and unfounded claims about the effects of judicial sortition to sway readers to oppose my reform. But—as before—Franck declines to support his claims with evidence. For example, Franck claims my plan undermines collegiality, efficiency and “fair-minded decision-making” on the nation’s circuit courts. But he does not tell readers how removing eight judges out of 179 for only one year would have this effect. Under my plan, the 171 other circuit court judges would remain in their seats. And the eight circuit court judges picked by random draw in a given year would return to their seats after serving on the Supreme Court for a mere 12 months.

Franck asserts that my proposed reform could dramatically swing the Supreme Court’s jurisprudence. He claims that judicial sortition may produce “a very progressive Court one year, and a very originalist one the next.” Franck also claims that the circuit court judges selected to serve temporarily as associate justices on the Supreme Court “would have an incentive to make hay while the sun shines” and would therefore use their time on the Court to overturn precedents that they don’t like.

Yet Franck’s claim that circuit court judges will succumb to their own opinions and biases during their time on the Supreme Court contradicts his earlier argument that the nation’s judges and justices are capable of “disciplining themselves to the norms of the law.” It also contradicts his observation that the nation’s circuit courts are collegial, efficient and fair-minded because of the judges who serve on them.

Notwithstanding these contradictions, several essential elements of my proposal make it extremely unlikely that the scenario Franck predicts will occur. First, the randomized nature of the selection process reduces the likelihood that enough progressive or originalist judges who agree on a specific issue would be picked at the same time to constitute a majority on the Court. And in the improbable event that judges with similar intellectual dispositions are chosen by random draw, the impact that they could have would be limited. My proposal stipulates that the eight circuit court judges serving as Supreme Court justices would be limited to deciding cases picked by the previous year’s Court.

Under my proposed reform, people off the Court would have fewer incentives to use litigation strategies to achieve policy goals. Consequently, the nature of cases that reach the Supreme Court would differ. This will give Supreme Court justices fewer opportunities to issue sweeping decisions that change the face of federal law and purport to change the Constitution.

These same elements of my proposed reform also suggest that Franck’s claim that judicial sortition “would hyper-politicize the selection of every appellate judge in the country” is inaccurate. And they indicate that Franck’s prediction that “struggles over every circuit court seat would consume great quantities of political energy in the Senate, in our parties, in the press, and in electoral politics” is wildly exaggerated and inaccurate. 

Under my plan, presidents would have fewer reasons to nominate extreme candidates to fill circuit court vacancies. And the Senate would have fewer reasons to ignore its rules and practices to confirm the president’s extreme nominees. Neither the president nor senators could be sure that their nominees—once confirmed—would be selected to serve as one of the Supreme Court’s associate justices in the future. Nor could they be confident that their circuit court judges would get to decide specific cases during their brief tenure on the Supreme Court even if they were selected.

Unpredictability is everything

Franck’s straw man argument speaks more to how he views politics than it does to the merits of my proposed reform. He ultimately dismisses judicial sortition because he believes it would make politics unpredictable. Franck notes that “its opposite – predictable decision-making according to known principles and precedents – is generally highly prized in our legal system.”

But that is precisely why many Americans, on both the left and the right, prefer to achieve their policy goals using litigation strategies in the federal courts instead of legislative strategies in Congress and the state legislatures. They believe that outcomes in the courtroom are more certain given the nature of the law and their familiarity with the views of the judges and justices who decide their cases.

Judicial sortition can help rejuvenate American self-government by helping Congress and the Supreme Court perform the functions for which they were designed. It does so by shifting consequential policy decisions away from the courts and back into the political sphere where they belong.