The nomination of Neil Gorsuch to the Supreme Court of the United States, so soon after our own handed down its judgement on the Article 50 case, offered a clear contrast of our two countries’ very different judicial systems.
Most British observers are pleased that we don’t have America’s hyper-partisan approach for making judicial appointments. But it does have things to teach us, not least the perils of trying to shift debates and decision-making from the political arena to the courtroom.
The US system was not designed to operate as it does now: partisan fighting over judicial appointments has followed the expansion of the Court’s role in public life by a combination of activist justices and litigious campaigners.
Political brawls over judges might be off-putting to watch at times, but it’s difficult to see them as irrational or unjust. Due to the operation of the codified US Constitution, the Supreme Court has final say on a huge amount of the proper work of the legislative and executive branches.
Moreover, precedent doesn’t protect historical rulings from being overturned by a new set of justices, so each side has little option but constant vigilance over who gets to make those decisions. This column gives an excellent insight into the thinking that motivates the bitter political battle we’ve seen waged over the latest Supreme Court vacancy. It’s a perfectly rational way to engage with a less-than-rational system.
Britain doesn’t have the American system, but we ought not to be complacent. That problematic order evolved over a long period of time, and it would be foolish to assume our own couldn’t follow suit.
Many of the ingredients are already present: we have Supreme Court justices talking up their expanded role in our constitution; an activist class of legal professionals taking political battles to the courts; and legislation like the Human Rights Act which introduce many of the dynamics of a codified constitution.
Withdrawal from the EU, and the jurisdiction of the European Court of Justice, should only be the first step in a much more extensive programme aimed at rolling back the “judicial capture of political accountability“. Members of Parliament no longer farming out their role to the judiciary, and commentators being more careful in their assessment of politicised cases, would also help.
Yet there is a big positive to the American system: it recognises that there are such things as different judicial philosophies, which affect how judges interpret the law, and subjects these to public scrutiny.
Just as political over-dependence on experts forgets that people with different values can draw different policy conclusions from the same facts, those advocating an uncritical approach to the judiciary seem to forget that different judges can reach very different conclusions from the same evidence and law.
If you doubt it, just look at the Article 50 judgement. For all the bold talk in some quarters about how straightforwardly wrong the Government was, three of the justices were persuaded of its casr (despite, by all accounts, the Government failing to make the best case for its own position).
The majority ruling and the dissent each present perfectly viable interpretations of the law; the former is the law because a handful of people were more persuaded by it, not because it is in any sense objectively true. Set aside cute legal language about judges making “discoveries”: complex cases are settled by human beings making decisions.
Much of the public outcry over the judgement was distateful, to say the least – and demands that the justices ‘respect the referendum result’ were straightforwardly unconstitutional – but it illustrates how the expansion of judicial power in the political sphere will result in an expansion of political scrutiny and pressure upon judges, whether they like it or not.
Denouncing judges as ‘enemies of the people’ is an unhealthy form of scrutiny. But it would be no bad thing if we took more of an interest in how individual judges understand their own role, and the attitudes and philosophies which underpin their approach to interpreting legislation. It may even help our legal professionals too: according to this QC, they don’t think enough about this stuff either.