Ever since the UK Supreme Court held that Boris Johnson’s attempt to rule without parliament in 2019 was unlawful (the Miller/prorogation case), certain politicians and commentators have called for judges to be politically appointed. When, in July, the Court of Appeal found that the government’s plan to deport migrants to Rwanda was unlawful, those calls were renewed. Ironically, in the very week of the Rwanda judgment, the (politically appointed) US Supreme Court provided a compelling counter-argument.

Rwanda and Miller weren’t legally controversial. The former turned on the right to a fair hearing and the freedom from cruel or degrading treatment (the court cited the European Convention, but those rights also exist in English common law). The government’s own reports indicated Rwandan judges aren’t independent from the government (a view shared by the UN High Commissioner for Refugees). Deportees could not, therefore, be guaranteed a fair hearing of their asylum claim and consequently risked unlawful return to countries where they would be in danger. In Miller the court merely relied on the constitutional rule that the (unelected) executive cannot govern without (elected) parliament.

Contrast this with the US Supreme Court, where the president appoints judges with the “advice and consent” of the Senate. Lawmakers once recognised that the court should generally maintain an ideological balance, and both sides often worked together to appoint jurists who were independent-minded, learned and skilled. But in the latter part of the twentieth century, this changed. Republican leaders and their backers launched a concerted campaign to capture the court and nominees are now picked for their ideological purity. Lobby groups funded by dark money, like the Federalist Society, decide who gets on the shortlist for Republican nominations. The court is now dominated by political shills. Two of its members, Clarence Thomas and Brett Kavanaugh, have been accused of sexual assault. Thomas, Samuel Alito and Neil Gorsuch all have undeclared financial interests with political figures. Public trust in the judiciary has reached a historic low.

The US Supreme Court has become a gross parody of justice. Its members ape the language of their more illustrious predecessors to impose increasingly extreme political positions. The late Antonin Scalia, darling of GOP ideologues, advanced a “judicial doctrine” called “originalism”. He argued for interpreting the constitution as the original framers of it would have done. Setting aside the absurdity of approaching issues like internet privacy by asking what Alexander Hamilton would have done, “the framers’ view” almost always coincided exactly with Scalia’s own ideological prejudices.

Some judges have attempted to preserve the Supreme Court’s credibility. John Roberts, the current chief justice spent years attempting to persuade his colleagues to make their decisions with at least some reference to established law. Sonia Sotomayor and Elena Kagan still write thoughtful and well-reasoned decisions. The left is not above theatrics. Ruth Bader-Ginsburg, a genuinely great jurist, was so blinded by her own perceived indispensability that she refused to retire despite a series of health scares. She ultimately died in post.

Politically appointing judges makes them beholden to the powerful

The court’s partisan majority has delivered a series of mind-boggling decisions. Last year they empowered government to regulate women’s bodies (a longstanding Christian fundamentalist shibboleth), overturning the longstanding precedent that prohibited outright bans on abortion (Roe v Wade). The majority couldn’t find any modern precedent to justify the decision, so relied on Matthew Hale, a seventeenth-century English judge whose jurisprudence has been comprehensively rejected by the English courts. Hale’s work included burning women at the stake for witchcraft, approving marital rape, and ruling that women are inherently unreliable witnesses. The court couldn’t even quote Hale correctly, misstating the point at which he held that abortion was unlawful.

In July, the US Supreme Court effectively determined that discrimination to hurt marginalised groups was lawful, while banning discrimination to correct historic injustices. In one case it banned affirmative action if it assists disadvantaged students (leaving intact such programmes as legacy preference that benefit privileged groups). This abandoned the court’s own settled precedent (set in a judgment written by a Republican appointee – Sandra Day O’Connor).

The next day, however, the court ruled that businesses should be allowed to refuse services to LGBT+ people. There was a twist in this case. The plaintiff, Lorie Smith, claimed a Colorado law forced her to create design work for a gay wedding, but this was found to be untrue. The person allegedly getting married to a man had in fact been married (to a woman) for fifteen years and hadn’t ask Smith to design anything. In its haste to prosecute, the court hadn’t stopped to check whether the plaintiff had made the whole thing up.

It’s ironic that those in the UK most keen to replicate the US Supreme Court disaster claim to represent the “will of the people”. The Republican Senate majority, which confirmed the three most recent appointments, represented 40 million fewer people than their Democratic counterparts. The court’s decisions on abortion, LGBT+ rights and debt relief are out of step with the views of most Americans. The same would hold true in the UK. The current parliamentary majority represents less than 44 per cent of the electorate. Voters generally opposed prorogation in 2019. While polls are less settled on Rwanda, the majority don’t think the plan will work.

The courts play a vital role in democracy. They secure the rights of individuals and ensure that the powerful must obey the same rules as everyone else. Politically appointing judges makes them beholden to the powerful. That is anathema to democracy.

Sam Fowles is a barrister, Director of the ICDR, and a lecturer at St Edmund Hall, Oxford. He tweets at @SamFowles

More Like This

Get a free copy of our print edition

August / September 2023, Columns, Law & Parliament, Star Chamber

Leave a Reply

Your email address will not be published. Required fields are marked *

Fill out this field
Fill out this field
Please enter a valid email address.
You need to agree with the terms to proceed

Your email address will not be published. The views expressed in the comments below are not those of Perspective. We encourage healthy debate, but racist, misogynistic, homophobic and other types of hateful comments will not be published.