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)...
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)...
Alisdair,
I won't try to defend "unprecedented"; it just struck me that no former UK judge has been quite so outspoken about SCOTUS.
If Harris becomes president, could she appoint four more justices? She would need a majority in the Senate.
Well worth reading Sumption's piece in full, I'd say.
Thanks, as always, Joshua