Sunday, August 19, 2007

Politics and the Judiciary

There is a wide debate on the role of politics in adjudication, and I am going to wade in and say that it's not a good idea. No, really. This brings a number of difficult problems. Firstly, what about those times where judgement seems necessarily to fall on political lines? Secondly, and more pointedly, how do I reconcile this, which in the US is the line espoused mostly by conservatives, with myself firmly being a liberal?

Well, let's look at the American model. My favourite American legal / political blogger, Publius, has said that judicial appointments are and should be about the politics of the potential appointees:

"To be clear, I’m not denouncing this politicization at all. Just the opposite, in fact...Nominations should be about politics because judging is inherently and necessarily political. You simply can’t avoid it, so we should stop trying to."

With respect to the writer, I think that he is completely wrong here. However, I can see why he has come to this conclusion. In the US, Constitutional law has become highly politicised. When interpreting things like freedom of speech, freedom of religion, sexual issues and issues of race and affirmative action, the Supreme Court increasingly splits along political lines. This has got to the point where it is thought of as a political arena, something of an analogy to our (legislative) House of Lords: It has a crucial legislative role but democracy only filters through to it very slowly through appointments from the ruling primary legisature / executive, which last long after the appointing administration has gone from office. The Bush administration has long used this to control its voters even when it has done nothing for many of them - "They'll appoint judges who will one day overturn Roe!" is practically a desperate conservative slogan, (Roe v Wade being the landmark Supreme Court decision requiring that abortions be permitted up to a certain time in pregnancy). Control of the Supreme Court, and to a lesser extent, of lower courts, has become a deliberately partisan issue.

The British model is very, very different. Here, accusations of political bias among the judiciary are rare and taken seriously, and such judges looked down upon. The vast majority of adjudication is done on an intellectual level, leaving policy judgements to the legislature. For this a number of interpretive doctrines have grown up which are generally applied well, with deviations harshly criticised. Legislative intent is crucial with statute, and for both statute and precedent, looking at the harm meant to be avoided is essential. Where there is no real answer and the court really does have to create new law, the general way forward is not to upset the understood balance, leaving it to Parliament to make the assessment of whether it would be a good idea. Again, judges are harshly criticised when they do otherwise. The idea of politicising appointments would be completely abhorrent here.

I think the British way is just far, far superior. It will lead to judicial conservatism but I cannot help feeling that that is healthy, due to the severe lack of democratic control and accountability of the judiciary, which while necessary for its impartiality, leaves it in a bad position to determine policy. It should be left to the most democratic institutions as much as possible to develop policy. The judiciary should act within the reasonably determinable scope of what the legislature would have done or would do, and where this is controversial it should be left to the legislature to determine. I rather like the idea of creating a method whereby truly political questions can be submitted to the legislature to answer - not to determine the case, only the question of law - but that is an idea I will have to develop another time.

Now I can't help feeling that in an ideal world my ideological cousins in the US would agree with me. Liberals have traditionally been strong proponents of the separation of powers. So what has happened? Why is it that US conservatives are now the ones who talk about keeping politics out of lawmaking?

I think that the primary differences which vastly change the situation over there are the Constitution and specifically the amendment procedure, and the federal nature of the US. The amendment procedure is incredibly onerous, requiring the consent of 2/3 of both Houses of Congress and 2/3 of state legislatures, an incredible feat. The result of this is stagnation, which suits conservatives: Even where the public as a whole is ready for change in Constitutional provisions, it is almost impossible to get it done. The Supreme Court is able to remedy some of this stagnation by acting in the name of good policy and the public will.

The other intertwining feature, the federal system, is perhaps even more problematic. The Constitution given limited powers to the federal government and reserves many powers for the states. Meanwhile, citizens identify strongly with the US as a whole, and so are immensely keen to mould other parts of it according to their own preferences in a way that they would not when it came to other countries. To give a British analogy, if Yorkshire decided to allow wife beating within its borders, the rest of the country would be outraged in a way it would not about Middle Eastern countries. Now here, we can do something about it through Westminster Parliament. In the US, on some issues there is no clear way to do so, and because of the difficulty of getting an Amendment together, the only clear way is to get the Supreme Court involved. So the Supreme Court followed the general mood of the country in developing a right to privacy to act against certain reactionary states which do things like ban homosexuality (Texas and others, until 2003) or sex toys (Alabama and others, still), or of course abortion (which led to Roe v Wade) - something which rankles conservatives no end. Where there was no democratic way for the country as a whole to determine these issues, the Supreme Court was made to do it instead.

Essentially, what these two elements mean is that in the US, the Supreme Court has been used to overcome deficiencies in democratic control and accountability. Still, it is a perversion of the function of courts, because it is also lacking in these qualities and because it makes objective application of laws impossible. Not only does politicisation mean that judicial interpretation will lag far behind the ideologies favoured by the electorate, but legal process will become more and more a cynical game of legal realism, determining judgements not according to what makes sense or follows precedent, but who is to be judging. Legal certainty and the separation of powers take terrible hits.

In Britain we don't have anything like these problems. Admittedly, sometimes judges cannot resist applying their political beliefs to cases, but they are roundly critised for it. But any question can, as a fall back, be left to Parliament without fear that they will be unable to deal with it. This suggests that any limits we place on Parliamentary action need to be subject to change at the behest of the electorate (a subject I will consider at another time). Furthermore, we have nothing like the level of federalisation of the US, and this analysis suggests that we should be careful how much we allow to be devolved - when something outrages the moral sentiment of the rest of the country, the people need to be able to rectify it democratically.

Publius suggests that people start baldly supporting or opposing judicial candidates according to their politics, just as in elections. I suggest instead that the US would benefit far more from centralising more power over 'moral' issues and making Amendments much easier. I recognise that neither are likely to happen any time soon. But only then will the Supreme Court be able to get back to its proper task of judging, and candidates can be considered harshly if they look like they are going to apply political bias - any political bias - to their adjudications.


publius said...

excellent post.

in my defense, i'll just ask a question. I agree completely that in an ideal world, judges wouldn't take on these policy roles. I would love for the norm to discourage "bias" accusations.

But - you have to play the hand your dealt. And o'er here, the Supreme Court in particular has taken on enormous policymaking functions.

So my question is -- given that the Supreme Court here does what it does (this is the hand dealt), does that require people to focus on politics in nomination battles?

Pejar said...

I have to admit to being in two minds as to this ultimate question. What I definitely objected to was the suggestion that adjudication will always necessarily be political. On the other hand I would have had much less trouble if you had suggested at the start that US adjudication (particularly in the Supreme Court) is now irretrievably political and that we must play with the hand that we have been given.

However, I still think that it is a dangerous path to simply accept that the SC is to be used as a political battlefield. Dispassionate adjudication could be lost forever, and the cost of that is exceedingly great. I would say that one important political goal should be better separating the judicial branch from the other two, while trying to find other ways to solve the democratic problems it has been patching up.

Now of course there are a huge number of other important political goals, and the obvious way forward would be just to balance this one against the others. Liberals have clearly gained a lot from this politicisation (I know that a lot of conservative original intent philosophy is bullshit, but nevertheless stagnation and an inability of central government to control reactionary states inevitably plays in their favour) so it might seem prudent to allow it to continue.

However I think there are two huge ways of criticising this line of thinking. The first is principle: The status quo undermines democracy. Now granted, if the SC could be depoliticised like that with no other changes, democracy may not be better served (due to the other problems I highlighted) but it would not be determined quite as arbitrarily as it is, according to so few personalities (so that the fate of abortion can rely on the survival of one or two old men). Far better of course is that some way could be found to remedy the democratic problems without recourse to a political SC.

Second is the objection of pragmatism: Although this works in favour of liberals now, what about in the future? What if Bush or his successor manage to pack the SC with conservatives? What then for doctrines liberals once relied on and thought safe? Even the next liberal government might not be able to reverse the damage for decades. Although the political SC seems to be in the interests of liberals now, that could well change.

So while opposing reactionary appointments is still crucial, I would say that support for as far as possible apolitical candidates is probably far better in the long run than fierce partisanship, although I know that many people may disagree!

publius said...

We're agreeing on a great deal.

In fact, as you may remember, I'm a process theory guy and I would love for the Supreme Court to just back off most social issues.

In other words, one way to "separate" the branches as you say is to leave these issues to legislature, abhorrent as some of the results may be.

One reason is precisely because of the pragmatic case you make. I think many liberals don't understand that giving the Court these policy powers could be turned against them (and will be if Stevens croaks tomorrow).

The disagreement we have is over your last paragraph. I don't think you fix it through better candidate appointments. It's a structural problem -- somewhat inherent to the modern institution of the judiciary. so, just appointing apolitical people won't cut it -- they'll still weigh in on these issus (which is the problem).

Maybe one solution is to commit politically to appointing people who want a more humble Court.

Tough questions though

Pejar said...

I think that what I was (inadequately) trying to get across by suggesting appointing apolitical candidates was basically what you're saying - appoint candidates who are going to defer matters of policy to the legislature. Only by doing this is there any hope of eventually building up a cross-party convention of doing so and so easing some of these problems.

I've long respected your view of process and was just worried about what looked like giving in to the thorough politicisation of the SC. From your comments it seems like you did not mean to go so far, and I'm glad about that.

Yes, this does leave a lot of very difficult questions. Forget Roe - what about the key civil rights cases? Now I haven't studied them in detail, but it seems that while some of them can be justified without recourse to making policy, this is impossible for others. I know a lot of good ensued from this usurpation, and I recognise that adherence to what I'm suggesting this would prevent this kind of thing from happening again. Of course, the way I see it the current way is akin to having certain decisions only exercisable by a handful of men with dubious democratic legitimacy - even if they tend to come to the right decisions, it still stinks.

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