On Saturday, Antonin Scalia died. His death made headline news around the world because lots of people knew who he was: the longest-serving judge on the US Supreme Court, and the most bombastic member of its conservative bloc. Before the end of 2018, at least six of the UK’s 12 Supreme Court justices will retire. Hardly anyone will notice.
Much of the coverage granted to Scalia’s death was a recognition that its timing gives it a far broader significance. If Scalia’s successor is nominated by a Democratic president, be it Obama or putative Presidents Clinton and Sanders, the Court would be able to overturn some of its most controversial rulings, such as Citizens United (which allows unlimited election spending by corporations) and DC v. Heller (which protected private citizens’ gun rights).
But if Scalia’s successor is nominated by a Republican president, the court could be just one new conservative justice away from overturning Roe v. Wade and rolling back abortion rights.*
The impact of Scalia’s death on the presidential election was one reason it made headline news, but it also reflects the closer attention paid to the legal system across the pond. This should make us reflect on how closely we track how the highest court works in the UK.
Of course, our Supreme Court has a much narrower jurisdiction than America’s. The UK Supreme Court cannot overturn primary legislation (that is, Acts of Parliament), though it can strike down secondary legislation in some cases. Though the UK Supreme Court can declare legislation incompatible with the European Convention on Human Rights, it is up to the government whether it accepts that declaration and how it proceeds. By contrast, the US Supreme Court can revoke any legislation on grounds of it being unconstitutional.
Yet even if the UK Supreme Court does not habitually reverse decisions made in Parliament, it still pronounces on cases of broad importance. In the very first case it adjudicated in 2009 after its formal separation from the House of Lords, the Supreme Court ruled that a Jewish faith school had discriminated against applicants on the basis of race. In 2014, it heard a case brought by locked-in syndrome sufferer Tony Nicklinson’s widow, and though it declined to formally rule on the right to die, the judges made clear they felt the current guidelines need clarification. Last year, the Court overturned an injunction preventing the pianist James Rhodes from publishing a memoir including details of his experience of abuse. These are just three of the cases where the Court’s judgment on points of law has provoked public discussion of nuanced moral questions.
And still the judges who make the decisions remain effectively anonymous. Perhaps the most important reason for this is the appointments process. UK Supreme Court justices are appointed after a committee of judicial figures recommends a single name to the government. In theory, this private process means that justices are considered on their jurisprudential merits.
Appealing though that may be, we should wonder if it blinds us to the narrow makeup of the Court. Baroness Hale, the Supreme Court’s deputy president, is not just the sole woman on the Court, but also the only one of the 12 justices not educated at a fee-paying school. Is it that surprising that, with power over appointments to its uppermost echelon, the country’s judicial establishment essentially self-replicates?
The procedure for appointing Supreme Court justices in America is, conversely, public and often protracted. After the president nominates a candidate, they are questioned extensively on their views by the Senate, before facing a confirmation vote. The system can sometimes descend into acrimony or farce. In 1988, Reagan nominee Douglas Ginsburg withdrew from consideration after Senators objected to his use of marijuana. In 1991, Clarence Thomas’ confirmation hearings were subsumed by allegations of sexual harassment.
More generally, justices are increasingly assessed on their philosophical standpoints rather than their legal ability. But the US Supreme Court, where the lines of accountability in the appointments process are far clearer, is more diverse than ours. Of the eight justices remaining after Scalia’s death, three are women. Three are Jewish and the other five are Roman Catholics. Sonia Sotomayor, the first Hispanic justice, was brought up in a New York tenement; Thomas’ family spoke Gullah as a first language and endured periods of homelessness.
Our Supreme Court may not be as consistently important in the process of government as its American equivalent, but it still merits closer attention than it receives. To its credit, the Court has established public scrutiny. Its proceedings are televised and open to the public, and its on-demand video service has become an unexpected, if modest, hit.
When the Court moved out of the House of Lords and into the Guildhall in 2009, much of the public attention focused on the costs of renovation: £59m including a carpet designed by Sir Peter Blake. It’s time we thought about who the judges are and what they do instead.
*Although President Trump his suggested he would nominate his sister, a senior circuit judge with a pro-choice record. Apparently he was joking.
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