Hands off the courts

The US president dislikes judges—except, of course, those who rule in his favour.

He is not alone. Governments do not generally relish the pesky interference by courts with their political agenda. And this applies regardless of their ideology, left or right.

Unchecked executive discretion reduces them to impotent spectators of executive action—a grotesque distortion of their calling.

So, for example, not long ago the Conservative Party launched a backlash against the escalation of both the extent and scope of judicial review (JR). It was, of course, sparked by the Supreme Court’s notorious ‘prorogation’ decision in 2019 which unanimously ruled that the government did not have the power to suspend parliament.

And in the United States, the Supreme Court is still under fire from Democrats for its judgment reversing Roe v Wade’s defence of the right to abortion. They even floated the idea in Congress to neutralize the perceived rightward shift during the first Trump administration by adding four justices to the bench.

The Israeli government does not seem to have dropped its ‘reform’ of the powers of the Supreme Court which would both undermine the rule of law and but endanger the country’s feted democracy. And in this enterprise, Israel is in questionable company. There are echoes of the South African apartheid government’s crackdown on the judiciary, the erosion of whose powers it assiduously advanced by legislation that prevented judges from ruling on the legality of the detention of its opponents.

In Poland the courts have been in the cross-hairs of the former government led by the (ironically titled) Law and Justice Party (PiS). Whether the new Polish administration will pursue a different approach remains unclear. Previously the ruling party described judges as ‘self-serving, unelected elites who substitute their own preferences for those of voters’. This benevolent appraisal was followed by the enactment of stringent limitations on the autonomy and independence of the courts. The legislation hands the government more control over the judiciary, violating the commitment to uphold the rule of law that Poland made when it joined the European Union. Poland’s new prime minister, Donald Tusk, has announced encouraging plans that include dismissing fifteen of the judges appointed during the eight years when the PiS was in power.

These assaults on courts are inimical to the rule of law. Paradoxically, these assailants manage simultaneously to flaunt and flout the rule of law. The legal system is, on the one hand, censured for corroding the rule of law and depriving the people of its benefits, while, on the other, the law is applied to frustrate democratic values.

Democrats sometimes contend that elected legislatures are entitled to express the will of their voters even if their actions are widely spurned. Moreover, they argue that judicial review weakens this fundamental democratic exercise of choice. Surely, it is maintained, parliaments are a better, and more representative, forum for the deliberation of important social, political, and moral questions. Legislatures, in other words, have democratic legitimacy. Unelected judges do not.

Two sorts of argument are typically deployed both in support and against JR. The first asserts that JR is good (or bad) because it delivers better (or worse) results than other procedures for resolving disputes about rights. The second claims that JR is good (or bad) because it produces a procedure that is (or is not) consistent with democracy. In other words, public deliberation is good for democracy; JR facilitates public deliberation; therefore, JR is consistent with (or contributes to) the conditions of democratic rule.

It is widely assumed that legislatures enjoy democratic legitimacy, while courts generally lack it. But this must surely depend on the circumstances obtaining in respect of both institutions. A Supreme Court’s legitimacy is likely to be strong where popular support is based on the nature of its powers, its record, or the method by which its members are appointed. Where the system is generally perceived to be fair, transparent, and non-political, the prospect of the courts enjoying popular democratic legitimacy is obviously enhanced.

To support judicial oversight is not to deny that judges may be influenced by subjective moral, political, or ideological considerations, but that is less likely to occur than in the case of elected legislators answerable to their party or constituency. Besides, detached from the rough and tumble of parliamentary rhetoric and oratorical persuasion, judges have both the time and, in many cases, the expertise, to examine both sides of the argument presented to them in an atmosphere, one hopes, of tranquil reflection and deliberation.

Judicial authority is a potent process by which perceived failures in democratic outcomes may be ‘corrected’. It is also normally true that disagreements between appointed judges are typically based on principle rather than popularity. Another advantage of the procedure is that courts are able to safeguard non-majoritarian representative democracy. It also empowers individuals to vindicate their rights against government. Misgivings about its undemocratic nature may be offset by its general legitimacy rooted in its contribution to the protection of individual rights.

There is a contradiction in the misgivings expressed by those who rail against the alleged hegemony of judges. While on the one hand, JR, especially in its strong form, is perceived as a force that destabilises the separation of powers and the democratic principles which are its constitutional underpinning; the rule of law is, on the other hand, actually enhanced by the power of courts to ensure that government actions comply with the constitution. Such checks and balances ought to be immutable. To diminish them Mr Trump risks haemorrhaging this key ingredient of democratic rule.

Raymond Wacks, Emeritus Professor of Law and Legal Theory, is the author of seventeen books including The Rule of Law Under Fire?