Blog of the International Journal of Constitutional Law

Guest blogger Schor: Should national high courts be staffed largely with bureaucrats?

The resignation of Justice John Paul Stevens has given rise to speculation as to his replacement. It has become an almost invariable pattern in the United States to appoint professional bureaucrats (i.e., judges who have toiled in the lower federal courts) to the high court. Some polities, however, have a different practice and appoint judges to their national high courts with a non-judicial background. In Belgium, for example, at least half the judges on the constitutional court must have a minimum of five years experience either in the federal or in a regional parliament. In France, over half the members of the Constitutional Council who have served from the inception of that body to the present have served in parliament. Professors and academics have been appointed to national high courts in Colombia, France, Spain, Italy, and Germany. Civil law countries have largely rejected the idea of exclusively staffing constitutional courts with professional bureaucrats.

I do not think that the American practice of selecting professional bureaucrats as justices has served us well. Judges with non-technical, legal backgrounds have something important to add to the constitutional conversation. The open-ended provisions of the constitution are not like other laws. One need not be a legal realist to understand that the incantation made by nominees to the United States Supreme Court in their appointment hearings before the Senate that they are simply umpires following the law is errant nonsense. Hans Kelsen (no legal realist) very perceptively suggested in an important essay he wrote in 1928 that the “Constitution in employing a term such as justice did not intend that the fate of a law would depend on the pleasure of a collegial body selected in a more or less arbitrary fashion.” For better or for worse, few, if any, constitution writers have followed his advice and made the broad provisions of a constitution purely programmatic. If, however, the open ended provisions of a constitution are to be self-actualizing, their interpretation requires judges with a broader vision than is typically supplied by law school and a career on the bench. It seems unlikely, for example, that justices with a broad, non-technical background would invalidate a hard fought and democratic national health care bill whereas it is, unfortunately, quite possible to imagine our Court from interfering with (and damaging) democracy in this fashion.

–Miguel Schor, Suffolk University Law School
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3 responses to “Guest blogger Schor: Should national high courts be staffed largely with bureaucrats?”

  1. David Law Avatar

    Great points and examples, Miguel. Japan only reinforces the point: the career judges, who occupy 6 of the Supreme Court’s 15 seats, tend to be noticeably more conservative than the 4 justices drawn from the private bar or the lone justice appointed by academia, who have been more disposed to exhibit what the elder President Bush called “that vision thing.” Even conservative segments of the Japanese media tend to find the Court a little too passive for their liking. To introduce this kind of professional-background diversity here wouldn’t necessarily require any formal legal change either – the informal quotas in Japan are not imposed by statute but just exist as a matter of practice. (They have, however, arguably been manipulated over time to help ensure that conservatives maintain the upper hand, but that’s a story for another day.)

  2. Tokujin Matsudaira Avatar
    Tokujin Matsudaira

    I disagree with the author. I think the US Sup Ct justices in post-Bork era are “professional” but not “bureaucrats”.
    In the US, legal profession-including those who are sitting on the courts-is a functional equivalent of national bureaucracy.
    a group of people whose skills and mentality (sensitive to their legal and social status) are minted inside governmental institutions.

    Before a democracy in today’s popular sense visited, such a system of meritocracy provided those who were in lower social-economic status with a channel to participating the national government, however without promoting democratization. We can find the examples in the 19th century Germany (ie. Staatsbeamte, General staffs of Prussian army), France (a centralized bureaucracy developed in 1800-1900), and prewar Japan. They were not merely government employees; they constituted an important part of nation-building elite who were trained by the national government for leading / integrating the nation. In the early 20th century, these nation-building bureaucracies were hostile to parliamentary politicians whom they considered introducing politics of divided interest groups into the government “for the undivided nation”. The US government lawyers lack such “bureaucratic” or antidemocratic sorts.

  3. Miguel Schor Avatar

    I appreciate the thoughtful reply and I actually agree with it in part. You are quite right that the United States, unlike France and Germany (2 of the counter-examples you provided), did not have a strong administrative state that sought to inculcate values into its judges. But I think that is a narrow definition of what constitutes a bureaucracy. Judges and administrators share much in common. Both apply general rules to specific cases; both are supplementary lawmakers who fill in the details of more general rules. The reason polities tolerate providing authority to judges (and administrators) is that their decisions are subject to democratic check. A.V. Dicey, for example, argued that judicial legislation is “secondary” legislation as it could be overruled by the legislature. Constitutional decisions, on the other hand, are not readily overturned by the democratic branches. And a constitution employs very broad, open-ended terms that should not, I think, be construed in a narrow, legalistic fashion which is why I think that national high courts should not be staffed exclusively by professional judges.

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