Give Chance a Chance: An Alternative Process for Selecting U.S. Supreme Court Justices

Abstract

This article develops the proposal that U.S. Supreme Court Justices should be selected by sortition. The greatest threat to the legitimacy of the Supreme Court emanates from ever more politicized selection contests under the current system. Removing politics from Supreme Court recruitment is therefore crucial, and sortition is argued to be a suitable vehicle for accomplishing this. The proposal is motivated through a wider discussion of sortition and democracy.

Keywords

U.S. Supreme Court legitimacy crisis democracy sortition

A tsunami of publicized opinion touting a crisis of legitimacy of the U.S. Supreme Court was let loose by a trifecta of events, starting with the stymied candidacy of Judge Merrick Garland in the waning days of the Obama administration, continuing with the controversial confirmation of Justice Neil Gorsuch, and culminating in the acrimonious #MeToo-fueled battle over Justice Brett Kavanaugh’s confirmation (e.g., Beauchamp, 2018; Edelman, 2018; Gawthorpe, 2018; Tomasky, 2018).

The contemporary sense of crisis is not unprecedented. About 30 years ago, between the scuttled candidacies of Judges Robert Bork and Douglas Ginsburg in 1987 and the confirmation of Justice Clarence Thomas amid allegations of sexual impropriety in 1991, recruitment issues spawned a similar test of the Court’s legitimacy. The recurrence of these crises suggests that the existing selection method (nomination by the President and confirmation by the Senate, with the nine Supreme Court Justices enjoying life tenure after selection) has become dysfunctional in terms of generating legitimacy. There has to be a better way. I propose to select Supreme Court Justices by lottery.

I harbor no illusion. This is an eccentric reform proposal that has very little chance to be implemented any time soon. My intention is to encourage people to think critically about the current method and to consider alternatives. A potential solution for the problem of the Supreme Court’s crisis of legitimacy is to link the Justices’ recruitment to the larger core-democratic principle of sortition, which was dominant in ancient democracy, vanished in modern democracies almost without trace, and resurfaced more recently in a minority, yet a vibrant strand of political theory.

The Legitimacy Crisis of the Supreme Court

Even though the Supreme Court is still the most trusted of the branches of the Federal Government (Gibson, 2007), the threat of a “legitimacy crisis” (Habermas, 1973) has been looming. Annual Gallup polls allow us to track the percentages of Americans having “quite a lot” or a “great deal” of confidence in the Supreme Court and in Congress, respectively. Whereas, by this measure,¹ confidence in Congress has taken quite a hit in recent decades, plunging from 42% in 1973 to 11% in 2018, confidence in the Supreme Court has remained relatively stable. But even the Court’s numbers appear to experience a slight weakening trend (from 45% in 1973 and highs of over 50% in the mid-1980s to 37% in 2018).² Because popular support of the Supreme Court is commonly considered “the primary source of its influence and relevance” (Christenson & Glick, 2015, p. 403), such a trend of eroding legitimacy is ominous.

Max Weber, a pioneering theorist of legitimacy,³ grounded legitimacy in his basic concept of power. Weber (1964) had elegantly defined power as the ability “to carry out [one’s] own will despite resistance” (p. 152). In a second step, he posited that power becomes legitimate to the extent that the people at the receiving end of power assent to it, thus introducing the distinction between legitimate and illegitimate power (cf. Uphoff, 1989).⁴ In this vein, legitimacy can be described as diffuse support (Easton, 1965) or “a reservoir of favorable attitudes or good will” (Easton, 1965, p. 273). The Weberian idea of legitimacy becomes most salient when power is exercised (i.e., when something is carried out against a person’s wishes), and the person who is subjected to the power and fully aware of it still accepts it.

A crucial legitimizing resource for the Supreme Court has been the “myth of legality” (Baird & Gangl, 2006) or “the fictive idea of principled legality” (Brisbin, 1996, p. 1015). This myth is encapsulated in the belief that laws and legal principles determine the outcome of a legal process in a neutral and predictable way. This belief, which may be called legal formalism or “mechanical jurisprudence” (Pound, 1908), has been challenged by the notion of legal realism, or what in the context of the Supreme Court has been called an “attitudinal model” (Segal & Spaeth, 1993, 2002), according to which judges’ extralegal experiences and attitudes influence their judging. Legal realist interpretations of the Supreme Court can therefore be expected to undermine legitimacy beliefs. Whereas this has been confirmed in some studies (Baird & Gangl, 2006; Christenson & Glick, 2015), Gibson and Caldeira (2011) found that a belief in legal realism does not necessarily weaken legitimacy if legal realism is accompanied by the belief that Justices exercise their discretion in principled and sincere ways.

Another threat to support was identified as the perceived ideological distance between oneself and the Supreme Court (Bartels & Johnston, 2013; Christenson & Glick, 2015). The efficacy of this factor can be explained in a simple calculus of deriving the degree of a person’s “specific support” (Easton, 1965) from the level of ideological congruence/divergence (perceived ideological convergence increases, and perceived divergence decreases support). In this case, Supreme Court support would have little to do with Weberian legitimacy.

However, something else was found to be in play that suggests a more stable foundation of support or, in other words, legitimacy in Weber’s sense (Gibson, 1989, 1991, 2007). This source of legitimacy was specified by positivity theory (Gibson, 2007; Gibson et al., 2003a, 2014; Gibson & Nelson, 2017). It postulates that exposure to the Court’s symbolism and ritual produces a legitimizing effect.⁵ Even amid controversies, the Court’s symbolism, ritual, and paraphernalia are thought to dignify the Court in the eyes of the people.

Although observers may disagree about the relative strengths of the various factors influencing popular support of, and legitimacy beliefs about, the Supreme Court, a strong consensus has emerged among students of the Court (Baird & Gangl, 2006; Bartels & Johnston, 2013; Gibson & Nelson, 2017) that “perceptions that the Court and its justices are subject to political influence—that they are ‘just another political institution’—tend to undermine institutional legitimacy” (Gibson & Nelson, 2017, p. 594).

Gibson and Nelson (2017) contrasted notions of an “ideological” Court with those of a “politicized” Court and found that the latter are the greatest threat to the Supreme Court’s legitimacy. While the people to some extent seem willing to sustain legitimacy even in the face of ideological distance and of legal realist beliefs, the suspicion that Supreme Court Justices are just “politicians in robes” (e.g., Sheldon, 1970) will poison the well of legitimacy (Gibson & Nelson, 2017).

The Supreme Court itself appears to have become more aware that its perception as political would in the long run threaten or even erode its legitimacy; and legitimacy has been increasingly referenced in Supreme Court decisions (Gibson & Nelson, 2017). In his confirmation hearings, Justice Gorsuch explicitly rejected the idea of Justices as “politicians in robes” (Lavoie & Tarm, 2017). Chief Justice Roberts, in an unusual move, rebuked President Trump who had spoken of an “Obama judge” by stating:
We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for. (Liptak, 2018)
Although this statement did not apply specifically to the Supreme Court but applied to the federal court system as a whole, it was plausibly meant to encompass also a defense of the Supreme Court’s nonpoliticalness. However, if Justices were not understood as political players and the Supreme Court were indeed viewed as nonpolitical by the political stakeholders, it would be extremely hard to explain the events surrounding recent confirmations of Supreme Court Justices.

While a widely held popular belief in the Court’s nonpoliticalness does seem crucial for shoring up legitimacy, it is hard to reconcile with the facts of Justice behavior. Empirical studies of the Supreme Court decision processes have generated ample evidence that the characterization of the Supreme Court as “largely a political court” (Posner, 2008, p. 8) makes sense. Justices’ decision-making has been shown to be heavily influenced by strategic behavior, coalition building, politics, ideology, and public opinion (Epstein & Knight, 1998; Friedman, 2009; Liptak, 2010; Maltzman et al., 2000; Posner, 2008; Segal & Spaeth, 1993, 2002; Segal & Westerland, n.d.). Defenders of the nonpoliticalness of the Court might point out that 5-4 decisions constitute only a minority of all decisions (in the Roberts Court, 2005–2017, 18.3%) and that this percentage has been stable over time (in the previous Rehnquist Court, 1986–2005, 18.8%).⁶ On the other hand, it is of course the few highly controversial and publicly debated 5-4 decisions in key policy areas that receive most public attention.

Yet, more importantly, decisions appear not to be the main threat to legitimacy because the activities building up to the decisions remain hidden behind the curtain of institutional gravitas. This, for instance, allowed the Court to come out of the Bush v. Gore crisis relatively unscathed and with its legitimacy intact (Gibson et al., 2003b). What is much more out front and in public, and hence more problematic, are the Supreme Court recruitment processes. Rather than the actual functioning of the Court, the selection of its personnel appears to be the Achilles heel of the Court’s legitimacy. This process lacks exactly the gravitas emphasized by positivity theory because it is carried out in the political realm, with the usual political players, with their usual partisan wrangling, and with would-be Justices in business attire. Even more detrimental are media campaigns and advertisements by political interest groups that reinforce confirmation as a partisan issue in the public discourse (Gibson & Caldeira, 2007). In sum, as Gibson and Nelson (2017, pp. 614–615) noted in 2017, the Court must maintain its image of being different from ordinary politics to protect its legitimacy, and the gravest threat will come
as the Supreme Court must contend with one or more highly contentious—and highly politicized—upcoming confirmation battles. The conventional character of confirmations in modern times is one of rancor and base politics, punctuated by politicized ad campaigns, often churlish, but also often indistinguishable from similar campaigns in presidential and legislative races…. From our research, this is exactly the sort of behavior that could damage the institutional integrity of the Court.
In addition to the problem of the looming legitimacy crisis, the current recruitment process may have been caught in a polarizing process that might accentuate the formation of political or ideological blocs on the Court. This process can be viewed as a variant of the “tragedy of the commons” (Hardin, 1968) dynamic. If one side (be it Republican or Democrat) fears that the other side, once able to do so, would push through one of “their” Justices, they will be less willing to waste their current position of strength on a compromise, middle-of-the road candidate, but will install a Justice who can be expected to be in tune with their political agenda. In turn, the other side will, when the opportunity arises, try to balance out those earlier appointees by selecting Justices of their own and so on. This dynamic exerts a pressure toward the nomination and selection of “extreme” Justices (who are more politically active and partisan than the average jurist). Even President Franklin D. Roosevelt’s contentious—and unrealized—plan of “court packing” (appointing additional Justices who would be sympathetic to his New Deal agenda) is currently being revived by former Attorney General Eric Holder (McCooey & Turner, 2019) and Democrat politicians (Biskupic, 2019). While the existing recruitment procedure may have worked well under general conditions of judicial constraint and consensus-seeking in politics, it is currently caught in a divisive feedback loop. A crucial driver of this feedback loop is the increasing political power of the Supreme Court, wielded through judicial review of legislative and executive actions, which has also raised the political stakes of recruitment. A strand of legal scholarship called “popular constitutionalism” has chronicled that political ascendancy of the Supreme Court from a highly critical perspective and has favored democratic checks on what is perceived as an oligarchic-style power grab by the Court (Adler, 2006; Kramer, 2004a, 2004b; Schmidt, 2011; Tarr, 2016; Tushnet, 1999, 2006).

Finally, viewed from the candidates’ perspective, the current style of the confirmation process puts them in danger of public embarrassment and humiliation. While the “winners” may be compensated by their eventual success, the “losers” may suffer a serious setback in their professional and public standing.

A promising countermeasure against the legitimacy crisis (and the other dysfunctions) is the selection of Supreme Court Justices by lot, because such a selection method would patently remove the selection process from the political realm and endow it with the mantle of impartiality.

Uses of Sortition

Admittedly, randomizing the selection of Supreme Court Justices, or of public officials in general, may sound baffling. Yet situating this proposal in the wider context of sortition and democracy will reveal that the theory and practice of sortition has had a rich history in politics as well as in a variety of other realms. And there are, of course, residual lotteries in the contemporary U.S. system of government, such as draft lotteries, immigration lotteries, and, most importantly in our context, the ongoing selection of juries by sortition. Hence, before returning to the concrete issue of Supreme Court recruitment, a very brief survey of sortition in various domains and at various times may be helpful.

Randomization procedures have been used from humanity’s early days to effect decisions while avoiding deliberate choice. In contemporary life, random selection procedures (the terms sortition, lottery, and random choice are used interchangeably in this article) are found in many areas of life, from the well-known prize lotteries to tiebreakers in sports.

In social policy and economics, sortition serves as a method to distribute scarce goods fairly and impartially, especially when distinguishing criteria among potential recipients are considered absent or uncertain (Eckhoff, 1989; Goodwin, 2010; Hofstee, 1990). Examples range from housing lotteries⁷ and various methods of assigning educational opportunities such as school admissions (Boyle, 2010) to immigration lotteries.⁸ Random choice procedures have been discussed in the provision of medical resources and health care (Childress, 1970; Silverman & Chalmers, 2001) and even the provision of federal grant money (Abert, 1972). Conversely, sortition is also used to allocate disadvantages and burdens in a fair manner. Starting in 1969, for instance, the draft into the U.S. military during the Vietnam War was determined by a lottery.

A random element also lies at the root of Rawls’s (1971) well-known philosophy of justice. He conceives of an “original position” of determining the structure of a society, in which a “veil of ignorance” hides the position that the decision makers will occupy. This uncertainty will, according to Rawls, lead to fairer arrangements than if the decision makers knew their own status beforehand.

In ancient times, a religious component was prominent in sortition. Pioneering anthropologist Edward Tylor (1873) emphasized a deep-seated anthropological connection of lotteries to the divine. By using a random process to remove deliberate human agency from a decision, it was believed that divine intervention could most easily assert itself (Aubert, 1959). Turning difficult questions over to divinity by means of the lot appeared to be a fairly common instinct among ancient people. For them, casting lots not only allowed a glimpse into the future as a divination device or oracle but also determined a course of action from several possibilities and finally made possible the fair determination of legal issues. Sortition thus was one of several kinds of ordeals where divine intervention would help justice prevail (along with, for instance, trial by fire and trial by water). The ordeal by lot (Losordal) was known to German tribes, particularly the Franks (Schultze, 1896, p. 447), and an extensive usage of the lot has been documented among ancient Jewry (Preß, 1933).

Athenian Lotteries

The poster child for political lotteries is ancient Athens. In the general shape introduced by Kleisthenes’ reforms in 508/7 BC, Athenian democracy lasted, with short interruptions, for over one-and-a-half centuries until Athens was conquered by the Macedonians in 332/1 BC (Hansen, 1999). Although scholars initially emphasized that Athenian sortition sprung from a religious source (Coulanges, 1879, 1894), subsequent research pointed out that it had been secularized very early on and that its rationale was political (Hansen, 1999; Headlam, 1891/1933; Manin, 1997). In Athens, sortition was considered an essential tool of democracy, whereas election was associated with aristocratic or oligarchic forms of government.⁹ About this, there was no doubt in the minds of the foremost political analysts of the time. Aristotle, for instance, pithily declared “the appointment of magistrates by lot is democratical, and the election of them oligarchical” (Jowett, 1885, p. 124), echoing a similar statement by his teacher Plato (Davis & Burges, 1901, p. 280).

The city-state of Athens was a direct democracy where the people decided most of the issues themselves. The Assembly of the People, which was open to all citizens, was the central institution, although its powers weakened somewhat in the fourth century BC (Hansen, 1999, pp. 150–153). Most of the yearly rotating officials were selected by sortition. We know of a special, ingenious machine, the kleroterion (κληρωτήριον), that was designed to conduct the lotteries for the jurors of the People’s Court¹⁰ (Bishop, 1970; Dow, 1939). Only a small minority of officials were elected, among them military commanders and financial officers (Hansen, 1999, p. 233). For all other positions, every Athenian citizen was considered intrinsically qualified by birthright. After officials were selected (either by lot or election), they had to undergo a confirmation process (δοκ ιμασία/dokimasia), which however was merely a formality (Hansen, 1999, p. 220; Headlam, 1891/1933, pp. 97–98; Koch, 1903), to a large extent because about 1,100 officials had to be confirmed in the final days of the year for service in the coming year.¹¹

It goes almost without saying that the group of citizens entitled to participation in the Athenian democracy was, by today’s standard, severely restricted, excluding women and slaves. The very opportunity that the privileged group of citizens could afford such a high level of political activity and constant engagement in government affairs (for which they received pay) was owed to the fact that the disenfranchised groups toiled for them. It should be noted, though, that slavery and gender inequalities were certainly no distinguishing features of Athenian democracy; they were rampant under all sorts of regimes during that era.

Sortition was primarily perceived pragmatically as a defensive weapon in the democratic arsenal: It was seen as a political countermeasure against corruption and factionalism, against elite formation, and, in short, against subverting democracy into an aristocracy or oligarchy. Whereas this pragmatic function was in the foreground, some more principled background assumptions are also usually made to justify sortition. As Mulgan (1984, p. 548) put it, “Equality of desert was thus the main ethical assumption underlying the use of the lot.” Another way of describing the underpinning of a lottery for officials is the “assumption of minimal equi-competence” (Goodwin, 1992, p. 159). Participants/candidates are considered equal, or, if not, their inequalities are considered inconsequential, or the concepts underlying the inequalities may be ill-defined, or information about those inequalities may be unavailable or difficult to obtain. Stone (2010) contended that all these arguments in favor of sortition boil down to the invocation of a “sanitizing effect” of the lottery—preventing decisions based on bad reasons.

The main counterargument against sortition was of the meritocratic kind, brought forward by antidemocrats such as Socrates (Headlam, 1891/1933, p. 13)—that sortition would bring individuals into positions for which they lacked the necessary skills, knowledge, or competence. Other mechanisms, elections for instance, would be superior in allocating positions according to qualifications and ability. The antidemocrats believed in the prevalence of decisions based on good reasons.

After Athenian democracy expired, sortition as a recruitment mechanism for officials faded into the background. Faint examples of this practice could still be found in some Italian city-states such as Venice and Florence (Manin, 1997; Sintomer, 2010a, 2010b) and San Marino (Aubert, 1959) and, to an even lesser extent, in the Realm of Aragon, in Switzerland, and in England (Vergne, 2010).

Evolution of Thinking About Chance

While sortition was virtually absent from the political realm, scholars occasionally pondered the issue of randomness. Medieval Christianity had a complicated relationship with lotteries. On the one hand, there was ample Old Testament precedent for it. On the other hand, the Church felt the need to guard against remnants of heathen practices, against superstitions and heresies.

Leading 13th-century theologian Thomas Aquinas (1269/1963) addressed the topic in his Liber de sortibus. While condemning a use of lots that would in any way be connected to superstition or demons, he acknowledged that “The lot is no evil thing, but it is an event, in human doubt, indicating the Divine Will.”¹² Pertaining to our context, Aquinas permitted lotteries for secular leadership positions in situations of dissension and divisiveness. By contrast, he said that lots should not be used for selecting church officials. His remarkable line of reasoning was that such a use of lots would do injustice to the Holy Spirit who would much rather work through enlightening the faithful so that they would elect the right person.

A 17th-century pioneer in the study of sortition, the English theologian Thomas Gataker (1627/2008) gave thinking about lotteries a secular twist. While still recognizing the role of lots in the sacred realm, he legitimized lotteries in profane activities such as gambling. Around the same time, the mathematical study of random events took off, as probability theory was being advanced as a scholarly pursuit. The correspondence in 1654 between Pierre de Fermat and Blaise Pascal about the fair division of wagers when a game of dice was terminated prematurely is widely considered the trigger event in this development.¹³

Sortition is sometimes decried as a dereliction of the human capacity to reason, as an affront to, even betrayal of, human rationality. This critical stance is evident, for example, in the following words of psychologist Dael Wolfle (1970, p. 1201), long-term executive secretary of the American Association for the Advancement of Science: “To use a lottery to allocate risks or benefits is not only a denial of rationality, it is also a denial of man’s humanity….” Sometimes, however, rationality in a wider sense includes abandoning reasoning, and lottery is not per se an irrational approach to decision-making (e.g., Stone, 2014; Zeckhauser, 1969). According to game theory, randomness can sometimes be the optimal option. For instance, in the “rock-paper-scissors” game, randomizing the choices constitutes a Nash equilibrium (Nash, 1950, 1951).

Sortition particularly shines in modern science where the canons of statistics and modern experimental research have joined to create a highly powerful tool. Randomized experiments (where experimental and control groups are randomly selected from a population) are now the gold standard in many sciences. Thus, in an ironic twist, randomness has come to serve as the substrate and precondition of causality determinations.

Democracy Reloaded

More than 2000 years after the demise of democracy in Athens, it received renewed interest in the Enlightenment discourse about forms of government. Prominent Enlightenment philosophers still considered sortition the essence of democracy. Echoing Plato and Aristotle, Montesquieu (1748/1899, p. 11) stated,
The suffrage by lot is natural to democracy; as that by choice is to aristocracy. The suffrage by lot is a method of electing that offends no one, but animates each citizen with the pleasing hope of serving his country.
And Rousseau (1762/1913, p. 96) would agree:
Election by lot would have few disadvantages in a real democracy, in which, as equality would everywhere exist in morals and talents as well as in principles and fortunes, it would become almost a matter of indifference who was chosen. But I have already said that a real democracy is only an ideal.
Yet when it came to making the ideal real, first in the American and then in the French revolutions, sortition quickly disappeared. “Scarcely one generation after the Spirit of the Laws and the Social Contract, however, the idea of attributing public functions by lot had vanished almost without trace” (Manin, 1997, p. 79).

Direct democracy, Athenian-style, was impossible for a variety of reasons, the sheer size of the nation-states and the condition of the productive forces and the economy, especially the means of communication and transport. Whereas Athens had been a direct democracy, the 18th-century founders designed a representative government and made election its prime mechanism of power allocation. In the modernizing and differentiating society of the 18th century, it may have become increasingly questionable to impute a general competence for most government positions to every citizen (especially when it came to executive positions). Elections, which had started as a small exception in Athens, thus became the default in modern democracies. The new model was a representative republic where elections became redefined as a democratic mechanism to periodically check the evolving political elites and to ensure the consent of the governed (Manin, 1997). After two centuries, elections are now widely considered a democratic institution par excellence, which affords the citizens a feeling of participation, at least at the symbolic level, and generates a sense of accountability for the elected officials.

Representativity

As representative democracy rose in the 18th century, the question of what representativity means also moved to the foreground.¹⁴ Following Pitkin’s (1967) classic treatment of the issue, it is useful to distinguish two types of representativity: identity representativity and functional representativity, as I would call them. They correspond to the distinction by Mulgan (1984, p. 551) between “typical” (or “descriptive”) representatives and representatives as “agents.” Identity representativity means that the selected assembly or persons resemble the makeup of the group they represent. Functional representativity means that agents are selected who most effectively further the group’s goals. The U.S, Olympic Committee, for instance, does not select typical Americans as representatives of the United States, but the most athletic ones it can find.

Mixed and stratified concepts can occur, such as having identity groups proportionately represented in the sense of identity representativity but then applying functional representativity within that group, for example, within a fixed quota of women, selecting the most suitable ones for the given task.

Arguments for identity representativity are often based on groups that are constituted by likeness on various personal characteristics such as gender, race/ethnicity, age, socioeconomic status, religion, and so on. When inequalities and discriminations between such groups exist in society, this type of representativity is thought to ensure that the disadvantaged groups have a voice in government and can make their concerns and interests heard. For instance, the frequently made complaints that a parliament contains too few women or various “underrepresented minorities” rest on this notion of representativity. In this framework, the underrepresentation of an identified group can per se be a marker of unfairness or discrimination.

The rise of identity politics presents a challenge to elections because identity politics is partial to notions of identity representativity, which, in turn, may be more reliably obtained by lottery. Identity representativity is indeed an area where the lottery excels. If a parliament of several hundred members was randomly selected from the population, it is likely that it will be similar to the population in many relevant dimensions one could think of (and, perhaps even more importantly, also in other dimensions one does not think of). This property of representativity of a random sample of sufficiently high N is well understood in statistics.

In the heady early days of the American republic, the type of representativity was vigorously contested. Some politicians favored identity representativity. In a 1776 letter to John Penn, John Adams wrote that the American Representative Assembly “should be an exact Portrait, in Miniature, of the People at large, as it should think, feel, reason and act like them….”¹⁵ And in the same vein, an anti-federalist theorist with the nom de plume Brutus stated in a famous essay written in 1787: “The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them—a representation of the people of America, if it be a true one, must be like the people.”¹⁶

By contrast, James Madison, in the Federalist Paper No. 57 of 1788, promoted the concept of functional representativity: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society….”¹⁷ And so it went. Democracy was conceptualized as an aristocracy in which the elites were subject to periodic popular control through elections. The more cynical the analysts are, the less actual popular control they would assume. Mills (1956), for instance, and sociologists of a similar ilk contend that democratic control via elections is merely window dressing and that, in reality, an oligarchic “power elite” holds sway unfettered.

Yet there has been a small but spirited—and, it seems, growing—group of political theorists, moral philosophers, and allied intellectuals who have thought seriously about the functions of sortition in public life.¹⁸ Their efforts are often framed as initiatives to reinvigorate democracy and combat “Democratic Fatigue Syndrome” (van Reybrouck, 2016, p. 16) by instituting allotted assemblies or deliberative groups of various types (e.g., Buchstein, 2010; Buchstein & Hein, 2010; Burnheim, 2006; Callenbach et al., 2008; Dowlen, 2009, 2010, 2017; Fishkin, 1988; Jacquet, 2019; Leib, 2004; O'Leary, 2006; Stone, 2011, 2016), in short, to transform conventional democracy into what is sometimes termed a demarchy (Burnheim, 2006; Martin, 1990).¹⁹ Mixed forms of lottery and election have also been proposed (e.g., Amar, 1984), as well as having both elected and sortitioned chambers of parliament (e.g., Barnett & Carty, 2017; Burgers, 2015). The general—somewhat dialectical—point is that the very abandonment of reasoning in the selection of deliberators may advance reasoning in deliberations.

This brief survey of sortition has set the stage for our suggestion that this method, if used in the selection of Supreme Court Justices, holds promise to offset the looming legitimacy crisis of the Court by removing the selection from the sphere of politicking and by facilitating identity representativity.

Sortition in the Law

We thus turn to sortition specifically in the legal domain. Here, the most provocative idea is to introduce lottery into the legal decision-making process itself (Duxbury, 1999; Elster, 1988, 1989). It revitalizes the very ancient concept of the ordeal by lot—only now devoid of its religious connections and based on a secular understanding of randomness and chance.

This article, however, makes a more moderate proposal: subjecting not legal decisions but only the recruitment of decision makers to chance. In the same vein, Goodwin (1992), for instance, proposed the selection of British lower level lay judges (magistrates) by lottery from the general population. She acknowledged that it may not be feasible to recruit higher level judges the same way and therefore suggested sortition from a qualified subpopulation. “However, such judges [i.e., higher judges] might be chosen at random from among those qualified for judicial service…” (Goodwin, 1992, p. 165). The closest proposal to the present one was put forward by Bunting (2006) who worked out a plan to select U.S. state court judges at the trial court level (not at appellate judiciary and higher levels) by sortition from all members of the state bar. He suggested that “state court judges should be selected by a process similar to that currently used to select trial juries, where the set of possible candidates is now roughly defined as all members of the state bar” (Bunting, 2006, p. 173).

Whereas the law typically has been an instrument in the hand of the rulers, such as monarchs or dictators, and has been dispensed by an increasingly professionalized cadre of trained jurists, there has been a countervailing tendency of entrusting laypeople with the administration of justice. Retaining and developing British traditions, the U.S. legal system operates under the assumption that humans possess a natural sense of justice that allows them to make reasonable decisions about legal cases, so that people can be judged by a jury of their peers. The idea that, as Abramson (2000, p. 2) put it, “every citizen is equally competent to do justice” is at the root of a jury system, in which jurors are randomly selected from the general population. Congress instituted the principle that juries should contain a cross section of the population in 1968.²⁰ The Supreme Court extended this principle to state juries in 1975²¹ (Abramson, 2000, p. 3).

Because of the random selection of jurors from the population, the judiciary, among the U.S. branches of government, could be considered closest to the original direct democracy of Athens.²² The somewhat controversial concept of jury nullification (Leipold, 1996), in which a jury deliberately overrides the law, highlights the institutionalized core-democratic assumption of a universally held sense of justice. It should be noted the randomized jury selection process has limitations. Before the trial, potential jurors can be dismissed “for cause,” and, in addition, each side has the right to dismiss a number of potential jurors through “preemptory challenges” without showing a cause, which, in turn, has spawned the craft and science of jury selection (Lieberman & Sales, 2007). Furthermore, researchers have critically examined the extent to which the actually used selection methods in fact produce an unbiased cross section of the population (e.g., Fukurai et al., 1991a, 1991b).

Selecting Supreme Court Justices by Lottery

It would be premature to work out a detailed proposal for selecting Supreme Court Justices by sortition. Rather, it may be more useful to lay out the challenges and issues that need to be addressed and decided in any plan to recruit Supreme Court Justices by lottery.

What is the population for the lottery?

An obvious alternative to the current politicized recruitment process would exist if it was possible to rank-order individuals according to some generally accepted metric of Supreme Court Justice quality. In that case, recruitment could occur by simply picking individuals from the top. However, when it comes to Supreme Court Justices, the notion of quality might be sufficiently murky to justify a random selection. It seems reasonable to require some formal training of Supreme Court Justices in terms of a threshold or minimum qualification, in line with Goodwin’s (1992, p. 159) “assumption of minimal equi-competence.” For instance, in the spirit of Bunting’s (2006) proposal, the population for the lottery could be the members of the state bars (with perhaps additional requirements for length of experience). Alternatively, all federal judges could be made eligible for the Supreme Court lottery, although this might only shift the problems with the current Supreme Court recruitment to the lower levels so that the erstwhile population, or a population of a similar type, may be preferable.

Should candidates be screened?

The Internet and social media have greatly facilitated checks into individuals’ past activities and public statements so that such checks will probably be carried out and published by interested groups under any circumstances. The question is to what extent this should be anticipated and whether an official vetting should occur. A related question pertains to the timing of the vetting. In Athens, as noted, the dokimasia took place after selection by lot or election. Alternatively, all potential candidates could be screened before the lottery. This would multiply the initial administrative effort but may smooth the acceptance of the successful candidate afterward. If the population for the lottery consisted of all members of the state bars in good standing, the acceptance of the state bars’ policies for membership would be a way to minimize the screening effort.

Should Supreme Court service be compulsory?

Members of the designated subpopulation could either opt into the lottery or (more in line with jury selection) would have to show good cause for not being able to accept the appointment to the Supreme Court. To some extent, this question hinges on whether serving on the Supreme Court is considered a reward or a burden. Currently, these positions appear desirable enough to generate sufficient willingness among eligible populations to serve, so that an opt-out policy may be feasible. In any case, the Court would become more identity representative and less functional representative. Whereas serving on the Court would no longer be an exceptional achievement, not being selected would carry no sense of failure.

Should any weighting mechanisms be employed?

In addition to a straight random lottery, there are many ways to combine lotteries with mechanisms that introduce preference. For instance, the president and/or members of Congress might be allowed a certain number of votes for candidates, which would translate to allocating additional lottery balls to those candidates, thus increasing their chances of being picked (e.g., see Amar, 1984). Moreover, a useful incentive toward consensus politics would be if jointly nominated candidates (by Democrats and Republicans) received an additional boost in their chances of being selected.

Should identity representativity be especially ensured?

With the ascendancy of identity representativity, a Supreme Court without women and members of racial/ethnic minorities would come under severe criticism. Identity presentation can be preserved under a lottery regime by stratifying the lottery. For instance, if there was “the Hispanic seat” on the Court, it could be filled by a lottery of only the Hispanic members of the population. Measures of a more indirect nature could also be contemplated in support of identity representativity. For instance, depending on the extent to which the makeup of the eligible population differs from the general U.S. adult population, suitable lottery weights can be calculated and applied to neutralize that difference. Because of the current strength of identity representativity in public discourse, a stratified lottery would boost the legitimacy of the selection and, ultimately, of the Court.

To what extent should other changes be made to support lottery recruitment?

From a statistical point of view, a larger number of Justices would certainly improve identity representativity. If a lottery is implemented, it may be advisable to at least double the size of the Court. Moreover, term limits would also help in this respect. It would be a bad idea, however, to impose term limits on the current system because this would only increase the number of contentious and politicized recruitment processes and therefore very likely drive down the legitimacy of the Court even further. Terms should also not be so short as to prevent the Justices from settling into their job and developing a certain routine in discharging their duties. A range of 8–10 years might be workable.

It should be noted that these two ancillary measures (enlarging the Court and introducing term limits) by themselves already are highly controversial and would require constitutional reform, as is the case with the introduction of a randomized selection procedure.

Conclusion

Using sortition to recruit Supreme Court Justices has the main benefit of stabilizing Supreme Court legitimacy. Because the greatest threat to legitimacy emanates from recurrent politicized selection contests, removing politics from Supreme Court recruitment is crucial, and sortition is a suitable vehicle for accomplishing this. At the candidate level, sortition reduces the feeling of accomplishment in successful candidates as well as the feeling of failure in unsuccessful ones, and both these effects may be beneficial. Importantly, a lottery may spare the would-be Justices the bruising personal vilification that sometimes occurs under the current system.

Will randomization lead to better judging? This is hard to say—especially because there is no consensus about what “better” means in this context. In fact, the absence of a clear quality standard is one of the conditions that make sortition attractive. What is more certain is that sortition would result in a Supreme Court whose members, on the whole, have less of a political agenda because the recruitment mechanism favors “typical” members of the population. Adopting the core-democratic recruitment process of selection by lot might also serve as a check against the Court’s oligarchic tendencies bemoaned by the popular constitutionalists.

Sortition is already familiar in parts of the U.S. judicial system, so that an extension of this method from juries to Supreme Court Justices is not entirely unprecedented—though still of course quite a departure from the current state of affairs. Even if Supreme Court lotteries are unlikely to become a reality any time soon, I hope that the article will stimulate creative thinking about Supreme Court legitimacy as well as about the general topic of sortition and democracy and will widen the range of options to be considered.

Footnotes

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Gerhard Sonnert

Notes

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