01 October 2020
An Appointment
The Supreme Court riddles.
By John Watson
Will he, won’t he? Will she, won’t she? Will they, won’t they? The subjects of these riddles are Donald Trump, Amy Coney Barrett and the US Senate respectively. It is the second of them, however, which is the most interesting. Amy Coney Barrett is a distinguished lawyer with rather off-beat Catholic views (believing that husbands should take authority over their families, for example) who is being put forward by the Republicans to fill the vacancy in the Supreme Court created by the death of Ruth Bader Ginsburg. Will she, if appointed, be able to divorce her Catholicism from the duty to:
“faithfully and impartially discharge and perform all the duties incumbent upon [her] … under the Constitution and laws of the United States”
as required by the judicial oath?
Courts of law are strange beasts and their natures differ according to the systems of which they form part. Take the UK for example. The system here is that the courts interpret and apply the law as enacted by Parliament and that the role of the judge is to use his or her legal skills and knowledge of precedent to do so. In theory it is really a matter of machinery so that it should not matter who the judge is, the answer should be the same regardless of politics or preferences. That leads to a predictable system and a cheap one too because the advisers to the parties will normally come to similar conclusions as to how the law is to be interpreted, reducing the question to how it is applied to particular facts. No wonder that the UK is so often the preferred forum for the hearing of international contractual disputes.
In practice, of course, it isn’t quite as simple as it sounds. Sometimes a new legal point has to be decided and the court is left with a choice between different paths along which the law should develop. In choosing the correct path the judge should look at the development of the legal system as a whole and should not be seduced by his or her sympathies for the plight of one or other of the litigants. To take the latter course would be to reinforce the famous aphorism “hard cases make bad law”.
Issues as to how the system should develop are particularly acute at the Supreme Court level where there is no further appeal so that unwise judgements cannot be corrected. Still, decisions have to be made, not just on arid questions of statutory wording but also on how the law should be applied in circumstances unforeseen by the legislature or by courts which had ruled on it previously, for example on issues of privacy at a time when methods of communication are developing almost daily. Here judgement has to be used and in formulating their views judges will inevitably rely on their own experiences and opinions. It is a tribute to the restraint with which they do this that in the UK no one is conscious of their politics or religious beliefs.
The appointment of judges in the US is far more politicised with many states holding elections for judicial office and the choice of new Supreme Court justices being something of a hot potato. Although that may have the advantage of bringing the judges closer to the people it also reflects a difference in approach. There would, after all, be little point in straining to get a conservative appointed to the Supreme Court vacancy if it was not thought that this would influence the Court’s decisions. Commentators talk of the balance of the Court as if it was part of the legislature and, although much of its work is no doubt purely legal, there are issues, for example in relation to abortion, where the personal views of the judges are very important.
Why is it then that in the UK the legislative role of judges is restricted to that of developing the law in areas of uncertainty and political decisions are left to Parliament whereas in the US the Supreme Court appears to have a more political role? No doubt there are many factors but one of them must be that the US has a written constitution and we do not. The American Supreme Court as guardian of the Constitution has a set of rules, validated by antiquity, on which it can hang decisions which it would not be acceptable for our judges to make. There the judges can often cry “it is a breach of the Constitution” and make their ruling where here they would leave the matters to Parliament.
Again this is a simplified picture because here too there is legislation which moves political changes from the purview of Parliament to that of judges; for example the European Convention of Human Rights, to which UK courts are required, and will continue to be required, to give effect by the Human Rights Act 1998, and, until the end of the year, the treaties of the European Union applied by the European Court of Justice. The latter court has certain similarities with the US Supreme Court in that its role as an interpreter of founding treaties gives it a political function analogous to that of the Supreme Court in regarding the constitutions. To that extent it might be said to be anti-democratic because it takes decisions which might be left to an elected assembly. On the other hand no one suggests that the judges allow their political preferences to interfere with their duties save insofar as those preferences are in favour of the development of the EU.
So let us go back to the three riddles with which we began. Will Trump try to force through his nominee? Clearly he will and clearly he sees an advantage to be gained by doing so. Will Ms Barrett be influenced in her decisions by her conservatism? She is certainly a distinguished lawyer and makes it clear that in her view it is not the role of judges to make policy, but the Democrats are clearly nervous of her and that is presumably based on past performance. Will the senate confirm her? We will see. A fourth riddle however goes to the heart of all this. If there is no political advantage to being seized why is it all being forced through in such a hurry?
