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The last two years have been of extreme turbulence in Israel as a result of the Parliament's attempt to reform the Supreme Court (the country's main anti-majoritarian institution). The events of October 7 have created conditions for major institutional reforms that can break the constitutional impasse of the latest years. That window of opportunity is inevitably short. 

This note aims to summarize the specific role of the High Courts in modern democracy, and point out that the problem of their composition is relatively simple: a combination of merit and sortision makes possible to choose High Courts adapted to their limited but vital functions. Apart from the israeli case, that ultimately is one of physical life or death, in this age of polarization the role of the High Courts is more vital than ever for the survival of democracy.

Introduction: sortition in a representative democracy

Although the election of public offices by lot was previous to the election by vote and Aristotle considers it the properly democratic selection mechanism (for him election was mostly related to aristocratic regimes), apart from the jury, modern democracies resort to this method of selection on rare occasions. 

Modern democracies, unlike the ancient republics (where civil participation always was limited to the residents in the capital city) have been able extend over large territories based on the representative principle [1]

Sortision is a natural mechanism in the restricted franchise regime of the ancient republics. Joshia Ober describes in “Democracy and Knowledge” how the Athenian system implied a long political career in which a large part of the population took part, and where the election for various positions was progressive and involved a costly learning process. In our time, where citizenship is universal, that degree of political commitment (which among the Athenians mainly affected the men of the property-owning class), would have to be required of the participants in an assembly chosen by lot (that is, preventively to all the population since everyone would be eligible), but with the aggravating factor that in our time policy design involves more complex decisions than in Athens and depends on an incomparably more extensive knowledge base.

On the other hand, the representative system is based on the existence of an organized civil society. The society that the bourgeois-democratic revolutionaries inherited from their nobiliary predecessors (unlike the ancient polis) assumes the need for intermediate associations and institutional pluralism. In “Violence and Social Orders” it is argued that the associative freedom (whether for profit or for public action) defines more than any other characteristic the modern democracy. Only the existence of intermediate organizations representing sectoral interests, allows for representative political systems, and provides a framework for mass democracy. Above all, modern politics is a competition among political specialists in integrating the preferences of self-organized groups into collective action. This is the core difference between the liberty of moderns and that of the ancients.

Recently the creation of citizen assemblies based on random selection has been proposed to replace or complement the elective branch of the Legislative power. In my view a citizen Assembly chosen by lottery would be blatantly ineffective and would be captured by its technical support bureaucracy. It would be also in a permanent conflict with the far more professional and well connected representative legislature chosen by vote. The representative principle and modern democracy are incompatible with the mechanism of sortision.

Sortition and the Veil of Ignorance

However, for human groups with a homogeneous degree of knowledge and a common training (that eases communication and the division of intellectual labor) the lottery is the best tool to achieve homogeneous, replicable and impartial decisions. Both the ancient Romans and John Rawls represent justice behind a veil of ignorance: the just decision is one that does not depend on proper names or special circumstances, but on the application of general laws and principles to the particular case.

The first step to avoid the corruption of a court or committee is that those potentially investigated do not a priori know its composition. 

Choosing the High Courts: judicial career and lottery

Although there is a clear tension between democracy and legality, in practice, democracy depends on an institutional infrastructure that channels the popular will into political action. Pure democracy, not restricted by checks and balances, is doomed to “one man, one vote, once”: dozens of colonial independences in the XXth century empirically support the obvious argument that the government can use its present electoral victory to block any future political alternation. Apparent exceptions, as the all-powerful Westminster Parliament are not so exceptional: the Parliament power was limited until the XIX by the role of the Crown, and in all times by the existence of a close knit oligarchy (first nobiliary, now bourgeois) and an apolitical Army and Civil Service.    

In modern democracies the High Courts are charged with the protection of the machinery of political alternation. Even their role as guarantors of Human Rights is mainly a consequence of the fact that these personal immunities are critical for the workings of the political system. 

In the classic case of the United States the Supreme Court is chosen by the President and its members serve for life. This mechanism is reasonably adequate if chance does not cause the Court to be disproportionately renewed in a single Presidency. But in any case, political election of High Courts is always a dangerous form of capture

It is clearly preferable to allow the Legislature to establish the criteria for access and promotion in the judicial career. These criteria can be used to select a subset of eligible judges, and members of the Supreme Court shall be chosen by lottery from among that subset.  The more mechanical, depoliticized and temporally distant the judicial review is from the moment of the effective choice of the Supreme Court justices, the more secure the constitutional mechanism is.

As an example, let’s take the following judicial career: access is based on a competitive examination. Promotions depend on the seniority and the congruence of the decisions (and arguments) of the judge with those of her superior courts. In the committees that judge congruence there may be representation (also chosen by lot) of the Legislature plus that of more senior justices. 

The eligible judges for the High Court shall be are an important fraction (between 10 and 25%) of all judges in their last ten years of career. In this stylized example, the points of political intervention in the judicial career are very remote from the final selection for the Court. By adding to this kind of “judicial career” a lottery among eligible justices, the resulting Supreme Court would be robust and legitimate.

Of course, what has been said here for the High Courts is equally valid for other panels of experts, which in public and private institutions have to decide on relatively objective issues: public committees, procurement boards, etc. In all of them, meritocratic selection, continuous expert evaluation, and lottery implement both the Rawlsian veil of ignorance and a system of consensus formation.

[1] See "El problema de la expansión republicana”, Revista de Occidente, ISSN 0034-8635, Nº 493, 2022. Interested (Spanish speaking) readers can contact me in arturo.macias@gmail.com





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