[Law & Story] Supreme Court and Constitutional Court Justices: All Judges, No Diversity

Serious Lack of Diversity in Personnel Composition
Risk of Falling into the "Groupthink Trap"
Legislative Measures for Appointing Non-Judge Justices Also Needed

Seokjin Choi, Law & Biz Specialist

At some point, a trend emerged in society where the political leanings of the presiding judge or chief justice in important criminal trials that become social issues are scrutinized to predict the outcome. Analysis charts categorizing the political orientations of the 14 Supreme Court justices and 9 Constitutional Court justices into progressive, conservative, and moderate circulate widely, and debates arise over whether they are left-wing or right-wing, which research group they belong to, or which party recommended them.

However, while focusing on the political leanings of Supreme Court and Constitutional Court justices, we have overlooked something important: the diversification of the personnel composition of the Supreme Court and the Constitutional Court. This is not a new issue, but it remains unresolved.

All 14 Supreme Court justices, including Chief Justice Cho Hee-dae, come from judicial backgrounds. They have been part of the same organization, the courts, for periods ranging from 25 to 32 years, working together as seniors, juniors, or colleagues. All nine Constitutional Court justices, including Acting Chief Justice Moon Hyung-bae who retired on the 18th, Justice Lee Mi-sun, and recently appointed Justice Ma Eun-hyuk, are also former judges, each with 22 to 35 years of judicial experience.

This has never happened before. In the past, at least one or two justices of the Supreme Court or Constitutional Court were former prosecutors or legal professionals from outside the judiciary without judicial experience. Several chief justices have pointed out the need for diversification in the composition of the Supreme Court and Constitutional Court in their inaugural speeches, and many justices have emphasized this in their retirement speeches. Public opinion polls have consistently highlighted this necessity, yet the situation has regressed. Compared to Japan’s Supreme Court, which includes a diverse range of legal experts from prosecution, administration, and academia, the concentration on judges is excessively severe.

The Supreme Court is the final authority on all legal disputes arising in our society. It also handles the final appeals in criminal trials that can deprive a person of their right to life or liberty through death sentences or life imprisonment. If such an institution is composed solely of judges from the same profession, it is difficult to produce rulings based on diverse social experiences. Diversity in composition is a prerequisite for the Supreme Court to fulfill its role as a policy court. The Constitutional Court, which can be called a “political judicial institution,” requires even more diversity.

In any organization, if diversity among members is not secured and there is concentration, it is difficult to escape the “groupthink trap.” Moreover, the judiciary is a more closed and conservative group than any other organization. Even if it was not originally so, after serving as a judge for over 20 years, one inevitably becomes accustomed to the group culture without realizing it.

Above all, for the Supreme Court and Constitutional Court to fulfill their mission of “protecting socially vulnerable and minority groups,” diversification of personnel is essential. History proves this as minority opinions once made by one or two justices in the conservative Supreme Court or Constitutional Court eventually became majority opinions and court rulings that advanced our society.

An elder legal expert cited the chronic personnel bottleneck in the judiciary as a major reason why Supreme Court and Constitutional Court justices have become exclusively judges. During Chief Justice Yang Sung-tae’s tenure, the introduction of the appellate court was aborted, and later the promotion system for high court chief judges was abolished, making a single Supreme Court or Constitutional Court justice position a bottleneck in the promotion of senior judges. However, this issue should be resolved through other means.

It is necessary to appoint Supreme Court or Constitutional Court justices with diverse backgrounds, such as non-judge legal professionals who meet the legal qualifications, law school or law faculty professors, and legal officers in government agencies or local governments, even if they are not former prosecutors. It is also worth considering legislating the appointment of non-judge justices.