A Proposal to Add Juries to Constitutional Courts
These are difficult times for representative democracies. Within the OECD the numbers show that elected governments are least trusted of all public services, with an average approval rating of only 43.4%. In the U.S. Gallup polls report a strong decline in confidence in Congress from 40% in 1975 to a paltry 12% right now. The Presidency has dropped from 52% to 32% over the same period. Despite these poll numbers, both the OECD and the Gallup data suggest a greater confidence in the largely unelected court systems. The U.S. Supreme Court polls at 40% approval, and courts throughout the OECD are trusted on average by 53.5% of the population. In this context it's not surprising to see our judiciaries being hailed as the bedrock of our democracies.
Recently though, the courts themselves are becoming increasingly politicised. More and more we see judicial decisions being challenged on ideological terms. These attacks on "elitist judges" by large sections of the commentariat are readily dismissed as dangerous populism. A closer look at the foundations of our modern legal systems however suggests that problems might lie deeper. It is indeed hard to maintain the image of our highest courts as protectors of democracy, when in reality they form the branch of government that is least accountable to the wider public.
Consider then the case of the recent immigration order banning citizens of certain Muslim-majority nations from entering the United States. The matter led to a vigorous public debate, including politicians, activists, migrant communities, academics, and several other civil actors. Eventually it also included the judiciary, all the way up to the Supreme Court. It was up to its justices to determine the constitutionality of the proposed measure, meaning that it could decide for the entire American society who is granted access to U.S. territory — historically speaking one of the basic concerns of almost every polity.
Such a major public issue that involves a judgement from a constitutional court can be called a societal legal case, distinct from traditional civil and criminal cases. These cases involve the most contentious issues in society, reflecting the broader identity of the political community and touching upon the primary conditions of political life. In other words, these are situations whereby the judiciary is supposed to reflect who we, the people, are and how we want to govern ourselves. Fundamentally, these are cases in which the entire population of a jurisdiction has standing.
This makes these cases at least as important as the most serious criminal cases. In countries like France, Belgium, and Italy the decision over life and death in these trials is left to the decision of a jury, as such a judgement not only needs to be fair but needs to reflect the values of society as a whole. The jury system has successfully downplayed the controversies over high-profile murder cases, maintaining the trust of the wider public. Although such cases still attract a lot of media coverage and sometimes widespread social debate, the verdicts themselves seldom lead to a public uproar. Because people "like us" make the final call over guilt or innocence, no one can claim that the decision was made by an aloof elite or involved technical rules that only a specialist can understand. Instead it gives credence to the idea of common sense and true representation: twelve disinterested persons "like me" judged on the basis of pure evidence presented to them.
This is interesting because it shines a light on the importance of juries even in those countries that mostly rely on professional judges. If you look in detail at the procedure for criminal cases in these countries, you will see that it's possible for professional judges to acquit suspects at several points during the proceedings. It is mostly impossible though for a suspect to be found guilty of the most serious crimes without approval of a jury. So basically the professional representatives of the state can unilaterally decide not to punish someone, but if they do want to sentence a suspect they need a jury verdict to do so.
In essence, juries function as the ultimate check on the coercive powers of the government. In most Anglo-Saxon countries that applies to all cases that make it to court. From the enforcement of private contracts all the way to the conviction of murderers, the state will need a guilty verdict from a jury to enforce any judgement. In the French tradition the role of jury trials is much more limited, but the bigger picture remains the same. The more coercive power is required by the state to enforce a decision, the bigger the need for a citizen jury to justify that decision.
All this will sound very familiar to constitutional scholars, because the role of constitutions is exactly the same. Constitutions also serve to limit the coercive powers available to the state. Yet because of historical reasons we've come to accept over the past two centuries that the judgement of constitutional cases lies exclusively in the hands of professional judges. And since judgements by constitutional courts almost always have societal consequences beyond the specific case they're judging on, we consider this a major loophole that exists in all modern judicial systems. To fix this we have a simple proposal for all courts that deal with societal cases. Let's introduce a jury.
Some examples of courts that generally deal with societal cases are the Supreme Court and the Circuit Courts in the U.S., the several national constitutional courts in the European Union as well as the European Court of Justice, the International Criminal Court in The Hague, and the myriad arbitration organizations created by international trade treaties. (Readers are welcome to complete this list with the highest courts in their own jurisdictions.) For the following reasons, we think these courts would gain significantly from the introduction of a jury.
First of all, a jury can serve as a useful tool for reconciliation. They can establish a level of trust in the populace that a wholly unelected set of judges cannot. Juries allow people to feel as if they have a stake in their future by differentiating and reconciling their beliefs with others as they see fit. Juries are not just a tool for determining a verdict, they are also a means of lending popular voice and ownership over the legal system.
Another reason for considering a jury system is because it allows for bringing the constitution up to date without changing it. Traditionally, the belief is that any change to the core documents — and thus governing principles — of society needs the (contractual) consent of the people. This in itself often becomes a highly technical affair: most often it requires a supermajority composed of the previously elected legislators, rendering the constitution a plaything in the hands of political parties. In cases such as Turkey, this has allowed semi-authoritarian parties to change the constitution in favour of their own leader. One does not even need an authoritarian government to promote incessant change: constitutional reform is part of every political election in Belgium because of communitarian tensions. In other cases, such as the U.S., an almost religious belief in the perfection of the Founding Fathers combined with the fear of partisanship has completely blocked all formal constitutional evolution. Adding a jury could thus make the process of constitutional reform more organic than political.
We may also consider the original moral purposes of a societal legal framework beyond its immediate practical application. The means by which a democratic society constructs, reviews, and adjudicates laws ought to be grounded in the idea that every citizen has a right to equal access to legal systems. An expression of this belief is evident in the due process clause in the American constitution. On a more fundamental level, the American spiritual founding document, the Declaration of Independence, expresses the primacy of natural law in its exhortation of universal and inalienable rights under the aegis of a Creator.
Participation in legal systems has become more difficult in recent years, whether it takes the form of becoming an attorney or getting one's day in court. An expensive legal education or legal fees prevent many from participating in the legal system. Furthermore, many legal systems suffer from overloaded dockets (the courts of America and Italy being notable examples). These barriers to entry ensure that the dispensation of justice is hindered and increasingly reserved for the wealthy and the powerful. While this is a serious issue for civil and criminal cases, these problems are paramount for societal cases. Therefore, if we are entitled as citizens to access our systems of law and justice, we are owed a moral obligation to popular representation on the part of even the highest constitutional courts.
We also believe that juries improve the independence and neutrality essential to a healthy court system. After all, in almost all democracies judges are appointed either directly or indirectly by the elected branches of government. This easily creates situations in which they're selected on the basis of partisan loyalty, which is detrimental to the courts' neutrality. Furthermore, if we consider this on a case-by-case level, it's clear that a jury is more likely to retain its independence than a small panel of professional judges. The simple fact that there are more people involved in the final decision makes it harder to pressure — or get away with pressuring — a dozen randomly selected citizens than a couple of career judges. Finally, it is often more difficult to dispense with an unethical judge than an unethical juror.
We do not want to send home our judges, nor do we want to overhaul entire judicial systems. Rather we propose to augment our constitutional courts with juries to make them more robust. After all, is not the soul of a constitutional system its endless capacity for reinvention?