Writing in today’s Times (£), former Labour advisor John McTernan argues that the British Supreme Court – set up in 2009 in a fit of self-consciousness about how unique our prior arrangements were – should be more like it’s American counterpart. Members, he argues, should be household names.
The spur for these pieces was the recent death of Antonin Scalia, the pre-eminent conservative member of the US Supreme Court, which has added a dramatic twist to the already-dramatic election.
Speculation is rife as to whether – and how – President Obama might try to reverse the previous 5-4 conservative majority on the Court, a victory much more long-term than any general election win.
Given that the Republicans control the Senate, he may instead simply try to nominate somebody the blocking of whom would do the opposition maximum harm in the upcoming election.
Such stories should remind us how lucky we are to have a Parliament, and not a document, as the supreme constitutional authority in this country.
By any democratic standard, the American constitutional model is ridiculous. The programmes and mandates of elected politicians, whether in Congress or the White House, are entirely subject to the will of a nine-person committee appointed by previous administrations.
The genius of Parliamentary sovereignty and an uncodified constitution is that it keeps the elected, democratic aspects of the government supreme.
It does not need a small group of learned, privileged people to pore like haruspexes over a collection of broadly-worded statements of principle, forming a huge number of opinions on an ever-broadening range of issues which supersede our elected representatives.
It makes sure that the best way to effect change is at the ballot box, rather than passing power to lawsuits and those paid to conduct them.
In the US, on the other hand, landmark moments of government are decided in court and imposed on the country according to how the Court interprets the Constitution – and a judge’s interpretation is almost always predictable by the President who appointed them.
The openly partisan nature of the justices, and their status as high-profile public figures, is a product of that system. It is necessary if American citizens are to understand how they’re actually governed.
Inside that flawed arrangement, it is desirable. Indeed, it is the only way to do things – there is no such thing as a ‘neutral’ constitutional ruling.
Alas, since 1997 we have been moving in an American direction. We now have a Supreme Court of our own, and the Human Rights Act effected a huge transfer of power from the Commons to the courtroom as it sought, fatuously, to protect our rights from democracy.
If we end up adopting wholesale the American arrangement in this country - as McTernan alludes to when he writes that “a British bill of rights is on the horizon with a new role for the Supreme Court as the key defender of citizens against arbitrary excesses of government” – then political scrutiny of judges is a necessary element of it.
But it would be far better if we could move away from our attempts to mimic the American arrangement altogether.
Power has to be exercised by somebody: documents and institutions can no more govern a country than a pile of bricks and a box of tools could build a house.
It should be exercised by those we elect today, not by judges we didn’t choose interpreting those we elected in the distant past.