Defending the judges
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Defending the judges
A cautionary tale from the US Supreme Court
“As soon as may be after his acceptance of office,” says the Constitutional Reform Act 2005 in a charmingly opaque phrase, the lord chancellor shall swear to
respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts…
Fortunately, attacks on judicial independence are rare in the United Kingdom — although Alex Chalk, the new lord chancellor and justice secretary, may find he needs to have a word with some of his parliamentary colleagues from time to time. If any of them need reminding why judges should be kept above the political fray, they need look no further than the United States.
Last weekend, the Wall Street Journal carried an interview with Justice Samuel Alito of the US Supreme Court. He was the judge whose draft judgment on the Dobbs abortion case was leaked to the news website Politico a year ago today. This “extraordinary betrayal”, said the court earlier this year, was “one of the worst breaches of trust in its history”.
An investigation found that “82 employees had access to electronic or hard copies of the draft opinion”. However, there was not enough evidence to conclude, even on the balance of probabilities, that any particular individual was responsible for its disclosure.
“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” Alito told the Wall Street Journal. And he was sure he knew why it had been leaked six weeks before the final decision was due to be handed down:
It was a part of an effort to prevent the Dobbs draft… from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.
It wasn’t just that there were demonstrations outside the judges’ homes:
Those of us who were thought to be in the majority, thought to have approved my draft opinion, were really targets of assassination. It was rational for people to believe that they might be able to stop the decision in Dobbs by killing one of us.
Their homes now had to be guarded at all times. “I am driven around in basically a tank,” Alito said, “and I’m not really supposed to go anyplace by myself without the tank and my members of the police force.”
The difference between London and Washington could not be more striking. In September 2019, a couple of hours after the nation had watched the UK Supreme Court dramatically overturn Boris Johnson’s attempt to prorogue parliament in the Miller 2 case, I spotted one of the court’s most senior justices casually strolling back to the staff entrance with a sandwich he had bought for his lunch.
In an editorial yesterday, the Wall Street Journal accused Democrats in the US Senate of taking part in a “political campaign to delegitimise the Supreme Court, with a goal of tarnishing its rulings and subjecting it to more political control”:
The campaign is on full display in the press, with reporters at multiple publications suddenly searching for supposed ethics violations or conflicts of interest. Our writers have examined and debunked these reports highlighting Justices Clarence Thomas and Neil Gorsuch in recent weeks…
“Ethics” is a time-honoured political weapon in Washington and it’s being used now against the court because conservatives have a majority that is cleaning up some of the legal mistakes of recent decades.
Comment
I am not in a position to judge whether, as the Journal claims, conservative justices in Washington have been targeted unfairly by investigative reporters. But I certainly share the newspaper’s concerns about any ethical code that could make the the US Supreme Court “answerable to an agent of Congress”.
Of course, justices of the UK Supreme Court are chosen in a very different way. It’s true that the lord chancellor has a limited veto. But I cannot imagine circumstances in which protecting the rule of law or defending the independence of the judiciary would require Chalk to exercise it. And I’m entirely sure he would never use it on party political grounds.
If you ever hear calls in the UK for greater political involvement in judicial appointments — confirmation hearings, for example — just remember where it may lead.
Update 0900: a reader has referred me to this Substack blog:
The author deals with some of the issues mentioned above in the first part of his newsletter.
Defending the judges
Thanks to the contributor who highlighted the various alleged ethics violations by members of the court. Another important point is that Justice Alito used the Wall Street Journal to counter another narrative of the leak of Dobbs that has been reported by serious media outlets, including Nina Totenberg of National Public Radio. That narrative suggests that the Dobbs draft could have been leaked to ensure that those justices who might have wavered and voted to not overrturn Roe would have found that difficult to do once the draft and their preliminary votes were leaked. A far more pursusive story given the US Supreme Court justices famously ignore public opinon when voting.
Whilst the judicial appointment processes in Australia, Canada and New Zealand are not identical they each involve the executive branch to far greater degree than in the UK. So far as I am aware it is not suggested that the quality or independence of their judiciary is compromised and each has a far better record of diversity in judicial appointments than does the UK. For those fans of our JAC might I gently point out that there are more members of our senior judiciary whose fathers were Judges [it was always daddy in those days!] than there are Judges drawn from an ethnic minority background and we have but one woman on our Supreme Court. In comparison Australia has 4/7, Canada 4/9 New Zealand 3/6 and the US 4/9.
Respectfully, the catalyst for Scotus’ current problems was NOT their system of judicial appointments. After all the system had worked tolerably well for the best part of 2 centuries. That doyen of the liberal elite William Brennan was approved by the senate with only the infamous Sen. McCarthy voting nay. Antonin Scalia the darling of the conservatives was approved 98-0. Both were well qualified for the job. Whether you begin with the excesses of the Warren Court, or the four horsemen’s attempt to block Roosevelt’s New Deal or go right back to Marbury v Madison the difficulties in the US arose from judicial overreach.
In the UK the people through their representatives in parliament enacted a right to abortion back in 1967. From time to time there are proposals to reduce the 24 week “window” to reflect modern science but the right itself is never seriously imperilled. Ireland asked the people directly [and everyone loves a good referendum!] and by a large majority the right is now inviolable. In the US 7 unelected men essentially wrote a new law. They acted unashamedly as legislators. The decision was never accepted as legitimate. When the republicans wanted to appoint their own carefully chosen “law makers” [although they perhaps weren’t careful enough with Souter!] the Democrats “borked” and turned the process into the theatre it is today sinking Robert Bork, who intellectually and professionally was well qualified, and nearly blocking Thomas. Thereafter the system has become ever more partisan. The reputation of the Court may never recover and genuine concerns about the impartiality of the justices can never be addressed because each side distrusts the motives of the other.
Fortunately our Supreme Court is well aware of its vital but limited constitutional role. Preserving that should not however prevent our enquiring whether our Judicial appointment system is fit for purpose. Perhaps Lady Chief Justice Carr might reassure me!!