At the climax of the latest Meryl Streep film, The Post, the Supreme Court of the United States resoundingly backs the rights of newspapers to publish leaked Pentagon documents. It is a reasonably accurate depiction of the ruling in New York Times Co v United States (1971) that, to exercise prior restraint on the press, the government must show sufficient evidence that publication would cause a ‘grave and irreparable’ danger.
British audiences – at least those of the sort who go to films like The Post – will relish the spectacle of a brave and independent judiciary upholding the constitution against an arbitrary and vindictive executive. Did our own Supreme Court not do something similar last summer, striking down ill-conceived employment tribunal fees? And wasn’t the US Supreme Court the hero in such totemic battles as Brown v Board of Education and Roe v Wade?
In fact, is a learned and independent judiciary not a surer guarantor of ‘progressive’ liberal values than democratic politics? Especially when those politics turn up leaders of the calibre currently in charge on either side of the Atlantic?
If your sympathies lie to the left of the political spectrum, your answer is probably yes. According to the editors of a provocative new collection of essays, Judicial Power and the Left*, this marks a striking shift in attitudes.
Historically, the left in Britain has been suspicious of the judiciary. The union-bashing judgment in Taff Vale Rly Co v Amalgamated Society of Rly Servants is hardwired into Labour party consciousness. Further to the left, the radical barrister and MP D.N. Pritt complained in the 1930s that a system of rights based on judge-made law created uncertainty, delay and expense. (Pritt is now remembered mainly for his sympathetic reportage of Stalin’s show trials, with its priceless line: ‘Anything in the nature of forced confessions is intrinsically impossible’.)
Judges can comment on practical or technical aspects of a policy, not on its rightness. They certainly should not be agitating for one policy choice over another
In the 1970s, J.A.G. Griffith’s landmark study The Politics of the Judiciary painted a picture of a body biased towards ‘reactionary conservatism’ and dedicated to the preservation of ‘what has been’. This seemed to be confirmed by rulings as diverse as the summing up in the Thorpe murder conspiracy trial to the overturning of transport fare cuts introduced by a Labour-run Greater London Council. Left-wing media and satirists lambasted judges as senile, out-of-touch racists in terms that make the Mail’s ‘Enemies of the People’ headline of 2016 look tame.
Somewhere along the way, however, the left learned to love judges. The right, from the 1990s, went the opposite way – manifested in hostility to the Human Rights Act, ‘judicial activism’ and, of course, the Court of Justice of the European Union. Indeed, Judicial Power and the Left is the latest in a string of publications from centre-right thinktank Policy Exchange and its Judicial Power Project, headed by Oxford law professor Richard Ekins. Unusually, it is written mainly by authors self-identifying as left-leaning. The aim, says Ekins, is to find common ground between left and right. ‘The left’s tradition of scepticism towards the courts is an invaluable resource on which to reflect,’ he writes in the introduction.
Several of the resulting papers see enthusiasm for judicial power as a symptom of political weakness. Danny Nicol of the University of Westminster argues that the left ‘would not touch the European Convention on Human Rights with a bargepole were it serious about the socialist transformation of society’. Alas this is now a non-starter thanks to the ‘neoliberal hegemony that has dominated British politics since the 1980s’. Chris Bickerton of Cambridge links the left’s ‘growing acceptance of judicial power’ to ‘a broadening pessimism about using the instruments of politics for significant and lasting social change’.
Several of the authors agree with their right-leaning counterparts on the dangers of over-reliance on judicial power. Richard Tuck of Harvard notes that the creation of the NHS, with its mass expropriation of private property, would be legally impossible today.
There is also common ground on the potential dangers of replacing politics, with its messy compromises, with the win-or-lose mentality of judicial decisions. ‘When we cede power to the judiciary, we should be concerned not only about how judges will rule on particular policies, but how delegating that power to judges may debilitate informed and energetic citizen participation,’ Chye-Ching Huang and Brian Highsmith write on the US experience.
‘To rely on litigation rather than political mobilisation, as difficult as the latter may be, misunderstands both the limits of courts and the lessons of history,’ they write. ‘It substitutes symbols for substance and clouds our vision with a naive and romantic belief in the triumph of rights over politics. And, while romance and even naivety have their charms, they are not best exhibited in courtrooms.’
It is true that a left-right consensus in opposition to growing judicial power is hard to identify. The Judicial Power Project’s Twitter following of 1,069 does not suggest a mass movement. But Policy Exchange has attracted some very distinguished participation. At a seminar last week, the former lord chief justice, Lord Thomas of Cwmgiedd, gave politicians a blunt warning on passing the buck to the judiciary: ‘Judges should not be asked to do what is inappropriate to them and sometimes politicians forget that,’ he said. In an implicit criticism of the Supreme Court’s warning in 2014 that a law on assisted dying would emerge from the courts if parliament failed to act, he added: ‘Is this something which we ought to be leaving to the judges? I doubt it.’
At the same seminar, Graham Gee, University of Sheffield professor and joint editor of Judicial Power and the Left, said that the onus is not just on politicians to mend their ways. ‘Judges can comment on practical or technical aspects of a policy, not on its rightness,’ he said. ‘They certainly should not be agitating for one policy choice over another.’
He accused one in particular of falling into that trap: Supreme Court president Lady Hale, for her ‘constitutionally improper’ enthusiasm for divorce reform. ‘The president is trading on the majesty of her office to advance a view which may be fair and reasonable, but contentious,’ he said, adding that if Hale wishes to campaign on the issue she should resign judicial office.
The stage may at last be set for a real debate about the balance of power between executive and judiciary, with Lady Hale at the centre. Perhaps Meryl Streep should start appraising the role.
*Judicial Power and the Left: notes on a sceptical tradition, Policy Exchange (judicialpowerproject.org.uk/about/)