The retirement of Stephen Breyer raises – and not for the first time – a basic question: Why are all Supreme Court justices lawyers?
On one hand, the answer is obvious. Supreme Court justices spend decades analyzing and mastering theories that have evolved over centuries – and go back longer than even the birth of the United States. Their expertise and nomenclature is as specific and specialized as doctors’ and scientists’. How can a podiatrist or a business owner hope to make sense of this?
The answer is that it will be difficult. But, unlike science or medicine, the interpretation of what is just is subjective. The understanding of justice evolves in a different way than the understanding of cancer or the atom. A layperson’s idea of what is just in reaction to a certain set of facts is far more likely to be informed and valid than, say, his or her opinion on the nature of a tumor or a quark.
A non-lawyer Supreme Court justice would have a hard task. But he or she would have a lot of help. Law clerks would explain in layman’s language the facts of the case, the legislative and legal history, the precise questions before the court and other salient matters. The decisions would read differently than those written by Oliver Wendell Holmes and Thurgood Marshall. But they would not necessarily be less just.
I am not a lawyer, though it runs in my family. (I always told my father that I was far more valuable to the legal profession as a client.) I enjoy the legal back and forth – when it is laid out in non-technical language. I understand the essence of decisions, though I quickly get lost and intimidated by the actual documents.
The point is that there is nothing that says a person with a legal degree and a long and distinguished career is inherently fairer than a non-lawyer. The “civilian” is no less able to understand the subtleties and shades of gray between various positions— if they are explained appropriately. Dred Scott v. Sandford, Plessy v. Ferguson and Citizen's United prove that training is not synonymous with wisdom.
In many cases, understanding the salient point wouldn’t be difficult. For instance, the issues decided in the highest profile decision of the last term – concerning the abortion law in Texas – was obvious. Of course, there are lower profile cases that deal with technical questions of law.
The pragmatic issues admittedly are significant and considerable steps would have to be taken to ensure that the new justice understood fully what he or she was deciding upon. It is fair to point out, however, that we elect folks with varied backgrounds to legislate on complex issues with which they have no specific training. The best of these people are dedicated, bright and have good staffs. The same would apply to a non-lawyer on the Supreme Court.
Deciding profound societal questions such as where the line is between pornography and art, when life begins, whether the death penalty can be fairly applied, how far the government has to go to protect the right to vote, whether the states or the federal government predominates in a specific situation and others should be done by justices representing all segments of society, not just those who decided upon a career in law.
It’s an odd concept, and I don’t expect the next president to nominate a baker or a high school principal to the Supreme Court. In the long run, I think considering non-lawyers would be a great thing. After all, there are many wise people who didn’t go to law school.