Constitutional Chaos Trumped
The US legal system is one of the most sophisticated in the world. In an introductory lecture to the LLM Class of 2017, it was described as “federalism on steroids”. The 50 states and Washington DC each have their own jurisdiction and courts, and a sensible circuit system allows questions of constitutional and federal law to be determined without the need go to Washington DC (until, of course, you reach the Supreme Court). Superficially, it is complex and vast, but it is well understood and it works (putting access to justice issues to one side). The US also plainly has the most advanced market for commercial legal services in the world, which is why many LLMs will make a career here.
All of this I knew before I arrived at Harvard Law School. I also held the view, as I think most lawyers in the UK would, that the US legal system is deficient in one fundamental way. This is the process for the appointment of Justices of the Supreme Court. I won’t go over the reasons why I believe it is wrong to require appointees to the Court to be interrogated and approved by the legislature, following a tap on the shoulder from the President.
My naïve assumption, before arriving at Harvard, was that this state of affairs, while recognised to be sub-optimal, would be begrudgingly accepted in homage to the greater and perhaps understandable imperative of constitutional sanctity; to the fear that one amendment to the Constitution as it relates to the judiciary could be only the top of a slippery slope of more sinister manipulation.
But in conversations, lectures and wider discourse, I haven’t detected any serious dissatisfaction that the Justices’ ideologies might influence their judicial decisions. In my time here, it has been one of the Court’s popular liberal pin-ups, Justice Ginsburg, who has been most emblematic of the “politicised judge”. In media interviews, she has described Colin Kaepernick’s kneel-down protest at racial oppression before an NFL game as “really dumb”, and made clear her preference for President as anyone-but- Trump. The important thing, however, is not to be surprised or hold Justice Ginsburg to account personally for straying from law to politics; she is part of a system in which she and her colleagues are in place at least in part because of their perceived ideologies, and no one really seems to have an issue in principle with this.
Indeed, I have discovered that is seems to be part of a deeper sensibility in the US that is quite comfortable with the leakage of politics into judicial decision-making. In another lecture, it was reflected in passing that a state judge might be inclined to decide a case because of an impending election — in this case, his or her own election. I thereafter discovered that 21 states use some elective process to decide whether to continue to the employment of trial or appellate judges, or both (disclaimer: this is according to Wikipedia). In the lecture, it was posited that the saving grace for an aggrieved party, here, was the opportunity to appeal. This is unsatisfactory regardless, but in 11 states both trial and appellate judges may also be subject to a retention election, begging the rhetorical question of whether we can expect appellate judges’ legal reasoning to be more stoic in the face of electoral pressure.
There are, of course, similar issues in the UK about the proper role of judges. Small ‘c’ conservative lawyers and large ‘C’ conservative politicians tend to object to what they see as the overly broad discretion given to judges by human rights law. They argue that it requires judges to in effect make policy decisions that should properly be left to parliament.
One might think that the equivalent body of opinion in the US would hold to the same view, but even American conservatives seem to relish the political battle to seat “their nominee” on the Supreme Court bench — and thus contort the judiciary to buttress conservative policy by securing a limiting originalist approach to the Constitution.
In this connection, I recently attended an interesting lunchtime lecture by Ilya Shapiro, editor of the Supreme Court Review published by the Cato Institute, a conservative, libertarian think-tank. In his lecture, Mr Shapiro referred to the message he had put across in an article published the previous day, in which he argued that if, as seemed likely, Hillary Clinton became President, a Republican-majority Senate should refuse to confirm any nominee to the Court put forward by the President to replace the late Justice Scalia, who sadly died in February 2016. Mr Shapiro acknowledged that, if followed to its logical conclusion, this approach could lead to the Supreme Court “dying out” — which he considered “definitely constitutional”. This is not to mention the continuing crisis, in which the Court has only 8 of the 9 Justices it should have, because of the refusal of Senate Republicans to give President Obama’s nominee, Merrick Garland, even a confirmation hearing. When split 4:4 on a case, the Court is bound to default to an affirmation of the judgment of the lower court without setting a precedent on the point of law it was asked clarify, in effect depriving the would-be petitioner of their right to appeal to the Supreme Court. Mr Shapiro’s course of action (whether constitutional or not) or the continuing intransigence of the Senate would have seriously deepened the crisis, albeit to quite different degrees.
Both proposals are demonstrably circular. On the one hand, Mr Shapiro would seek to preserve the integrity of the Constitution by eliminating the only constitutional guarantee of its enforcement. For other conservatives, who share the same goal, it is the Constitution itself — in enshrining the political appointments process — which creates the conditions for politicised judges. The election result, for better or worse, has ruled out both possibilities.
It is no small comfort for those in the British legal profession rightly dismayed at newspaper coverage of the recent case relating to the Brexit process, that the judiciary and politics in the UK rarely collide, in comparison to the US. For those in the US disappointed with the election outcome, the rather smaller consolation is that with a Republican President and Senate, the Supreme Court will not be allowed to die out anytime soon.
