Sumption lays into US court
Former UK justice attacks ‘absurdity’ of his US counterparts’ Trump ruling
A former justice of the UK Supreme Court has launched an unprecedented attack on its US namesake.
“The United States has never stood in greater need of impartial constitutional arbiters in its highest court, and has never been further from getting them,” Lord Sumption concludes in an essay published today by Prospect magazine.
In his analysis, the US Supreme Court has become more politically partisan since the 1990s:
The conservative majority on the court… has consistently given the force of law to Republican positions on, for example, abortion, gun control, election expenses, discriminatory voting rules, gerrymandering, and the powers of statutory executive agencies such as the Environmental Protection Agency. As a result, the court’s legitimacy has been gravely undermined and its public approval rating has collapsed from 80 per cent in the 1990s to less than 50 per cent now.
This is a more serious problem in the United States than it would be in any other country. Congress is polarised, dysfunctional and gridlocked. Filibusters make it difficult to get controversial legislation through…
When the Supreme Court changes the law on constitutional grounds there is no democratic way to undo it. Their rulings determine what the constitution means until the crack of doom…
Jonathan Sumption, a renowned medieval historian, was a leading commercial barrister before his appointment to the UK Supreme Court in 2012. He reached what was then the court’s mandatory retirement age of 70 in 2018.
In his essay for Prospect, he concentrates on the US Supreme Court’s decision last month in Trump v United States, in which six justices held that Donald Trump was immune from prosecution for criminal acts committed in the course of his official functions as president — even after he had left office.
“In plain language,” wrote Sumption,
what this means is that because of the awesome powers and responsibilities of the president he must be allowed to do what he wants, without being unduly “distracted” by the thought that it may be a criminal offence.
The majority did not say and cannot possibly have thought that it was part of the official functions of the president to try to overturn a regular election result and occupy the White House through what would have amounted to a coup…
The majority’s most remarkable observations concern Trump’s notorious tweets and public speech on 6 January 2021, in which he urged his supporters to head for the Capitol to pressure Vice-President Pence. The president, they declared, “possesses extraordinary power to speak to his fellow citizens”. So if the court finds that Trump was tweeting and speaking as president and not, say, as a party leader or candidate, then what he said was by its very nature immune. Never mind if the “fellow citizens” whom he was addressing were an ugly mob whom he was inviting to invade the Capitol and threaten legislators with violence. The courts cannot be allowed to look into that either.
There are a number of problems about all this, apart from the absurdity of the result.
One is that the distinction between the kind of power the president was exercising and the way that he was exercising it is incoherent…
However, the fundamental difficulty with the reasoning is that there is no analogy between the risk of civil litigation and the risk of criminal prosecution.
The three justices appointed by Democratic presidents dissented. In a joint opinion, Justices Sotomayor, Kagan and Jackson said:
Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency. It makes a mockery of the principle, foundational to our constitution and system of government, that no man is above the law.
Sumption noted that the six justices in the majority had “objected with some asperity” to that suggestion. But, he asked, “what other construction can be put upon their words?”
Superseding indictment
The special counsel whose allegations led to the US Supreme Court ruling announced yesterday that he had obtained a 36-page superseding indictment against Trump charging him with the same offences as before.
Jack Smith said that the replacement charges were intended to respect and implement the Supreme Court’s judgment in Trump v United States.
Joyce Vance, whose Substack blog is essential reading on these matters, explains:
There is no more reference to the 45th president of the United States. The indictment is now about Donald Trump, a candidate for president in 2020 who lost.
In other words, following the Supreme Court’s decision on presidential immunity, the prosecution is signalling that it has abandoned claims about official presidential conduct and is only moving forward with claims about candidate Trump. The government is saying it has limited the superseding indictment to unofficial, private conduct by Trump that the Supreme Court has said is fair game for prosecutors to pursue.
The message is that the prosecution has reworked the indictment to comply with the Supreme Court’s decision about presidential immunity, removed allegations about President Trump, and made sure only allegations about candidate Trump remain.
As she notes, though, “the case is not back on track for a quick trial.”
There is detailed analysis of the new indictment, including a response by Trump, in the Wall Street Journal.
Whilst having had doubts about a number of Lord Sumption’s earlier utterances and interventions, I am with him here and I agree with much of what Alisdair has said. My anxiety is that figures of influence in the US of many shades of political persuasion might well resent this -as they might think- unwarranted sniping from our tiny island at whatever level, exalted or otherwise. It is hard to have much patience with those ultra-rightists or xenophobes there who view the U.K. as little more than a vassal State, but all the same.
A very rare and very slight disagreement between us here. I'm not sure it is unprecedented. Retired senior judges have been outspoken over the years, with many talking about the Rule of Law. The politicisation of SCOTUS does occasionally feature in such works. He also spoke about SCOTUS quite a lot in the Reith lectures, albeit perhaps not as bluntly! Also, while you refer to him as a historian and commercial lawyer, he does have a background in discussing constitutional law and, of course, when he was a Supreme Court judge he adjudicated on important constitutional principles a lot.
On the substance of what he says, it is obviously up to each country to determine its own constitution, but many of his points have validity. The US Constitution is based on the premise of checks (POTUS can veto legislation; Congress can override a veto and check Presidential misuse and SCOTUS determines the validity of both against the Constitution), and those checks do appear to have been weakened in recent years, admittedly due to how the electorate has voted. Bipartisanship is increasingly rare, which means that Congress is not being effective. Irrespective of one's political beliefs, it would be difficult to argue that SCOTUS has not become increasingly political in recent years, with Justices Thomas and Alito not shying away from the fact that they have a particular lens in which they see everything (and I am sure the same is true of the liberal justices although they seem to do it slightly less blatantly). The decision in Dobbs was highly contested not least because it marked the end of SCOTUS treating stare decisis in a way much stricter than, for example, the English courts have done. The Trump immunity case is controversial not necessarily because of its decision (many were suspecting the trial judge went too far) but because the breadth of the immunity means that the checks on which the Constitution is based now appear to be substantially weakened, particularly when impeachment has become a political vehicle that is decided by party not issue.
What has happened to SCOTUS tends to be now seen as a warning about our legislature getting too involved in judicial appointments. If you appoint judges for political purposes and then given them lifetime appointments, it cannot be a surprise that the court will act in a political way. That said, it is difficult to see how it will ever be resolved. From what I've read in the US press, term limits actually has support on both sides but only on a theoretical basis, i.e. both sides agree it would be a good thing but neither trusts the other to do it "properly" meaning it will never happen. The bigger issue appears to be that nobody can decide who 'superintends' the justices in terms of ethics. They should do it themselves, but appear reluctant to do so.
The final point I would make, and I haven't read Sumption's piece in full so don't know if he mentions this, but one cannot help wonder what would have happened in the Trump case had they applied Pinochet (No 2)...