Judicial Appointment: Collective not Individual Merit?

A new report by Professor Alan Paterson and Chris Paterson (disclosure: I have worked with Alan on many an occasion) makes an important contribution to the debate on diversity in the Supreme Court.  They’ve also written a piece for the Guardian.  Here are two key paragraphs:

The Supreme Court is a collegiate court, sitting in panels that make binding legal decisions as a collective. Its competence is therefore a corporate competence, not simply an aggregation of the individual competences of its individual members.

The law of the land represents the collective code of the whole of society. A key aspect therefore of the competence of such a court is the ability to relate to the experiences of the society it serves and to bring the broad range of perspectives that accompany these experiences into the collective decision making process.

It is a powerful argument.  Legal judgment is not simply a technical exercise.  Judgment is shaped by “our” own experiences and values.  As one famous research study shows it may also be shaped by proximity to lunch (an interesting spin on the advocate’s refrain that a decision will depend on whether the judge had a good lunch).  I have also been reading Jonathan Haidt’s book on moral psychology. He emphasises the possibility that intuition shapes moral judgment because it shapes what information we process and how we process it.  The judicial process and law itself builds in lots of restraint on that intuitive process but judicial reasoning is not likely to escape the clutches of what Kahneman calls System 1 thinking.  Even a cursory look at the way the Supreme Court splits, when it does split, is reason enough to suggest that underlying values may have an important influence on how cases are decided.  It is also a reminder that diversity of values includes, but extends beyond, concerns with demographic representativeness.

*The House of Lords Constitution Committee has also reported on Judicial Appointments.

2 thoughts on “Judicial Appointment: Collective not Individual Merit?

  1. For many years I have warned clients that the decision will be influenced by what the judge had for breakfast.

    But are you saying that the Supreme Court should be representative? Or should it contain the best lawyers – ie those likely to make the most useful and practical decisions? Surely the place for representation is in the legislature, not in the courts.

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