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The role of the judiciary in the political process is a complex one, and, as with much else in politics is essentially a question of who wields power. In recent times, it is also an issue that has achieved significant public salience, with high-profile Supreme Court rulings on both sides of the Atlantic occurring at the same time as growing public indignation at the apparent unaccountability of international courts which seek to alter domestic law. This dissertation will analyse the extent to which it is the role of the judiciary to intervene in political matters, cutting through the rhetorical smokescreen. In order to conduct a thorough assessment, it will first examine the common law system of precedent, before analyzing the roles of Supreme Courts in both the US and the UK, and concluding with an analysis of international courts using the European Court of Human Rights as a case study. It will argue that in domestic matters judges should have free rein to exercise their discretion and intervene in political matters where appropriate under the law, but that international courts should refrain from doing so wherever possible. However, before this judgment can be reached, a definition must be provided for the term political matters.
An essential precondition to the formation of a judgment on the role of the judiciary in political matters is a consistent definition of exactly what political matters entail. The questions surrounding the nature, purpose and essence of politics have been discussed at length by eminent scholars throughout history, and before examining the judiciary, it is essential to conduct a thorough evaluation of the merits of their varied contributions. In classical terms, politics is defined as the process of the allocation of resources between competing interests, or ‘who gets what, when and how,’ or what may be termed the transactional model. This definition has, more recently, been challenged, with modern academics choosing to focus instead on politics as a medium for the endorsement of social values, or as a means of identification with a larger group, a concept popularised as ‘identity politics.’ Politics acting as an expression of society’s morals is a view endorsed by David Easton, who characterizes it as the ‘authoritative allocation of values for society.’ Meanwhile, the modern era has seen the idea that politics is based primarily on identity, rather than economic rationality, move into the mainstream, with Professor Christina Boswell, one of its most influential proponents writing that, ‘we need to understand that political contestation is as much about cultural identity and recognition, as it is about allocating material resources.’
All of the above definitions have both merits and drawbacks. The traditional conception is clearly defined, with an emphasis on material prosperity characteristic of the era which it represents, but it fails to acknowledge that humans are not entirely rational, self-interested decision-makers, and therefore neglects the significant role played by identity and social values in political decisions, on both individual and societal levels. Easton’s focus on the shared values that politics represents fares better in this regard but nonetheless, by describing the allocation of values as a top-down process, neglects the diversity of opinion in modern society, and the strong sense of identity behind it. There is therefore a risk that in Easton’s model, de jure principles, as ordained by the state, take the place of de facto norms as the barometer of public opinion, leading to real-world viewpoints becoming disconnected from his model of politics. This model, then, is also flawed. Finally, the advance of identity politics seems to have attained particular relevance in the political debates of today, with issues such as the Brexit referendum and immigration dividing people along lines other than the classical economic spectrum. There can be no doubt that on these issues, cultural identity plays a significant role in determining individuals’ positions. However, despite accurately opining that the transactional model is no longer widely applicable, identity politics cannot, for the purposes of assessing the validity of judicial intervention, be used as a definition on its own, since it would encompass anything affecting anyone’s identity. Everything would become a political matter, and since this is not what is generally meant an alternative definition must be sought.
For these reasons, this dissertation will adopt a hybrid definition of politics, utilizing a combination of the concepts described above. In common with Lasswell’s transactional approach, politics will relate to evaluating the interests of different groups, and attempting to execute a compromise between them. However, unlike Lasswell’s model, these compromises will not be restricted to competition for material resources. Instead, this definition of politics includes the analysis of competing cultural and ideological interests, such as immigration or security policy, or the degree of state intervention in everyday life. In summary, therefore, this dissertation will treat political matters as relating to the state’s attempts to strike compromises between different groups. The distinction between groups and individuals is important here, since the courts’ primary function on is to decide disputes between individual citizens, and they fulfil this duty every day. Since this is demonstrably and undisputedly the purpose of the courts, to define disputes between individuals as routinely political would be to render the question moot; only when the conflict reaches a macroscopic scale, impacting larger groups, does it become political. Having provided a satisfactory definition for politics, it is necessary to examine where the judiciary fits into it.
Throughout the history of the English legal system, judges have made often decisive contributions to apparently political issues, and created little controversy in doing so. Integral to this process is the system of common law, and the concept of precedent. Under common law, a judge’s ruling, in any case, becomes part of society’s legal fabric and is binding on any similar, future cases; a precedent has been set. This precedent can only be altered by the judgment of a superior court, or, in the case of the UK Supreme Court, by a future judgment of the Supreme Court. The power of this system of precedent is best demonstrated by two historical cases, which this dissertation will briefly analyze: R v Dudley and Stephens and Donoghue v Stevenson.
R v Dudley and Stephens was an 1884 case in which two men were tried for the murder of a fellow sailor following a shipwreck at sea. They had killed and eaten the cabin boy to save themselves from starvation and attempted to rely upon the defense of necessity, since they had had no alternative. Necessity had never previously been accepted as a defense to the crime of murder, and the court ruled that it was inadmissible, and in doing so, through precedent, enshrined this ruling in law for centuries to come; in the 137 years since, necessity has never been accepted as a defense to murder, irrespective of the innumerable different circumstances in which it has been raised. This length of time is demonstrative of the power of judges to make or amend the law under common law, but this particular case also indicates that the presumption of their reluctance to do so is generally accurate. Despite ample opportunity to do so, the House of Lords in the original case, and all courts since, have refused to amend the law to allow necessity as a defense for murder, apparently suggesting that judges acknowledge the desirability of placing effective limits on their own power as unelected officials in a democratic state and that they may refrain from political intervention in all but the most extreme circumstances.
An antithetical example to this judicial restraint is provided by the equally famous, or infamous, Donoghue v Stevenson, which imposed a legal duty towards those whose lives might foreseeably be adversely affected by the actions of the individual in question. This case involved a woman, May Donoghue, who became unwell after drinking ginger beer, produced by Stevenson, had been contaminated by a dead snail. In an episode of noticeably strident moralization, Lord Atkin delivered a judgment, declaring that ‘the rule that you are to love your neighbor becomes in law, you must not injure your neighbor.’ Atkin’s resort to justification through fundamental religious and ethical principles, rather than the law as it stood, is a demonstration of the tenuous link between the Lords’ judgment in this case, and the legal precedent. It is therefore notable that the decision, based, in effect, on nothing other than the moral compasses of the five Law Lords who heard the case has weathered the test of time and now represents a key component of British civil law. Since it dealt with the balance of power between manufacturer and consumer, and particularly due to the lack of any real legal rationale, this decision must be considered political.
Considered in combination, the above cases represent strong evidence that historically judicial intervention in politics has been intermittent, and largely influenced by the views and ambitions of individual judges. It is also noteworthy that on this evidence alone, this intervention seems to have been a positive force, since Donoghue v Stevenson introduced a key and widely accepted pillar of the legal system, where Parliament, which as the legislative branch of government should take primary responsibility for new law, had shown no inclination to do so. The judgment was simple, necessary, and relatively uncontroversial.
These cases serve to illustrate the backdrop of precedent which pervades the English legal system, and thus give a rudimentary impression of one particular form of judicial intervention in politics. However, in the years since these decisions, the nature of judges’ political interventions has changed substantially. The system of precedent remains intact, and decisions made under it, and the law created thereby, are rarely politically controversial, at least partly due to the supremacy of Parliamentary legislation, which can abolish precedent instantaneously. Instead, the source of the contemporary debate on the desirability of having British judges intervene in politics is, in the main, judicial review, which this dissertation will address later.
Before examining the process of judicial review in greater depth, however, this dissertation will examine and analyse the various roles of those instruments best placed to utilise it: Supreme Courts. Although the precise makeup, nature and responsibilities of Supreme Courts vary significantly between countries and legal systems, they share a few key features. The doctrine of the separation of powers dictates that political power must be shared between three branches of the state: executive, legislative, and judiciary. A Supreme Court represents the highest arbiter of the power vested in the judiciary, responsible for arbitrating on constitutional matters in addition to acting, in many jurisdictions, as the court of highest appeal. Before examining the role of the UK Supreme Court, it is informative to reflect on the problems encountered by another nation in relation to the activities of its constitutional court: the United States.
The issues encountered, and engendered, by the United States Supreme Court have been well-documented. In summary, the court has found itself dragged into a long series of disputes on highly contentious matters of constitutional interpretation with a discernibly political component. As a result, there is a consensus amongst scholars on the subject that politicization of the Supreme Court causes the American public to lose faith in the Court. In recent years, this tendency has been exacerbated to the point at which a 2012 poll found that only 37% of Americans had any more than some confidence in the Supreme Court. In order to conduct an assessment of the extent to which a politicized Supreme Court is responsible for division and acrimony within American politics, it is first necessary to conduct an analysis of one of the most controversial cases the court has decided: Roe v Wade.
Decided in 1973, this majority judgment mandated that abortion be legal in all US states, and created a political firestorm in its wake. Over the following decades, the accepted wisdom, both in scholarly discussion and among laymen, embraced the idea that this decision was responsible for division in American politics, on abortion and more widely. It was also argued that the legitimacy of the Supreme Court had been irreversibly damaged. If accurate, this would clearly indicate that political interventions of this nature should be avoided at all costs. However, a rich vein of revisionist scholarship has emerged to challenge the assumptions of the classical interpretation. The research of Greenhouse and Siegel, for example, has found that until 1989, fifteen years after the Court’s judgment, political party identification did not correlate clearly with support for abortion, and that division over abortion did not therefore solidify until at least two decades after Roe v Wade. Therefore, rather than a portrait of the ‘abortion conflict as resulting from courts shutting down’ politics,’ it is more accurate to describe ‘a conflict in which the Supreme Court was not the only or even the most important actor. A multitude of other factors were at play, including shifting religious demographics, political party re-alignment, and economic factors.
Furthermore, there is a significant and expanding body of research that seems to indicate that, rather than creating division in American politics, the Supreme Court is capable of laying the groundwork for compromise and agreement. Franklin and Kosaki made the argument that, particularly on issues on which the public is not already bitterly divided, a Supreme Court judgment has the potential to increase acceptance of the viewpoint it represents. For example, while it is true that the immediate aftermath of the Roe v Wade decision saw a spike in polarisation on the issue of discretionary abortion, on which the public had long-standing and deeply-embedded views, there was also a marked increase in support for abortions on health grounds, which had occupied a less prominent part of the American political consciousness. The Supreme Court, it seems, had decreased division on this particular issue, rather than exacerbating it in all cases, as many claim.
Having considered the various facets of the question, it is clear that the court’s judgment in Roe v Wade created a number of issues of great nuance and complexity. On balance, the increased polarisation on discretionary abortions that followed means this judgment cannot be considered an unmitigated success, and perhaps indicates that on matters of such great cultural, social, and political relevance, courts should refrain from intervening too broadly. However, questions raised regarding the degree to which the court was responsible for the ensuing polarisation, as well as a broader consensus on health-related abortions, suggest that in the right circumstances, political intervention from the courts may be a positive influence on society. It is even possible that a narrower ruling in Roe v Wade, restricted to abortions on health grounds, would have helped to forge a future compromise on abortion more broadly. However, even if it were conclusively shown that a political court would be a positive influence on society, questions remain about potential damage to its own legitimacy. It is self-evident that the rule of law is a principle worthy of the highest degree of respect, and it follows from this that any action weakening public respect for, and commitment to, this principle should be avoided. It has been posited that the politicisation of the US Supreme Court may have damaged its image, and lessened the public perception of its legitimacy. The seriousness of this possibility necessitates that it be thoroughly examined.
Numerous studies have concluded that the American public recognises that the Supreme Court is, in essence, a political institution, making decisions of a largely political nature. A paper penned by Nicholson and Hansford found that in the minds of the public, judges were akin to ‘partisans in robes.’ They also found that, as with other political institutions such as Congress, the public response becomes more polarised when decisions break along party lines. It is therefore unsurprising that the authors concluded that the degree of public acceptance of Supreme Court decisions was similar to that of other institutions, such as the House of Representatives. This is a deeply concerning conclusion, since while Congressional legitimacy is derived, at least partially, from the democratic process, the court is entirely dependent on public acceptance of the decisions of its unelected officials.
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