Tuesday’s print edition of the New York Times devoted the best part of three broadsheet pages, including most of the front and the main leading article, to president Trump’s nomination of Brett M. Kavanaugh to the Supreme Court. Some Gazette readers will wish that British newspapers reported judicial appointments with such rigour. But that of course would come at a price: overt politicisation of the bench. Those who see an activist judiciary as a force for good against short-termist and vote-grubbing politicians in the UK should take note.
Critics of Trump’s attempt to realign one of the three pillars of the US constitution are understandably alarmed by the implications for hard-won rights, led by abortion. But the outrage is misplaced.
First, the idea that the Supreme Court has historically been a ‘progressive’ force is profoundly mistaken. This may come as a shock to readers whose education in US legal history is dominated by the decisions in Brown v Board of Education, Roe v Wade, or, the one relevant to my trade, New York Times v Sullivan. But, as Chicago law professor Gerald Rosenberg points out,‘traditionally, courts in the US have protected privilege’. In the case of the Supreme Court, this has meant rulings throwing out a federal income tax and bans on child labour. Most consistently, it has backed racial discrimination: from the Civil Rights Cases of 1883, which overturned legislation banning race-based exclusion in places such as hotels and theatres to Korematsu v US (1944), which upheld the imprisonment of over 100,000 people of Japanese descent in wartime. (Rosenberg contrasts the US’s record to that of Britain, where the 74,000 suspected enemy aliens rounded up in the 1940 invasion panic were given individual hearings, so that only 486 were in detention two years later - and just 11 by the end of the war.)
Rosenberg’s point, in an essay for thinktank Policy Exchange’s judicial power project, is that belief in the progressive potential of courts to help the relatively disadvantaged is an historically odd idea, and one likely to appeal to a privileged elite which doesn’t much like the outcome of popular elections. Does that sound like anyone you know? To rely on litigation rather than political mobilisation, Rosenberg writes, ‘substitutes symbols for substance and clouds our vision with a naive and romantic belief in the triumph of rights over politics’.
In the aftermath of the ‘Enemies of the People’ case and the Supreme Court’s ruling in Unison, the UK’s judiciaries have plenty of friends in ‘progressive’ circles. Nothing so crude as outright politicisation, but Lady Hale is certainly no Lord Denning. The trouble is, when a bench is perceived as an activist player, political actors will do their best to tilt it in their direction. The New York Times reports Kavanaugh’s appointment as the culmination of a decades-long Conservative campaign of ‘vetting and grooming and lobbying and list-making’ with the aim of creating a reliably Conservative bench. In the context of the US Constitution, which famously and deliberately separates the executive, legislative and judicial pillars, this is healthy enough. For all the heat generated by Trump’s presidency, the rule of law is still sound.
The UK, with its blurred lines and still secretive judicial appointment process, is in a very different constitutional position. We embrace judicial activism at our peril.
For the meantime, Kavanaugh can expect a bruising confirmation battle in the Senate. We can rely on the Gray Lady of Eighth Avenue to revel in every twist and turn.