Fresh from seeing the UK's Supreme Court thrust into the limelight when deciding on the recent Article 50 case, we are now seeing the USA grapple with the separation of powers under its own constitution.
President Trump's nomination of federal judge Neil Gorsuch last week for the vacancy in the US's highest court in the land - selection the American Way - provides a vivid contrast to how our judiciary is selected here in the UK. The public berating of Judge Robart by a president apparently upset by his ruling, has echoes in the public berating by some lesser UK politicians in our jurisdiction of the decisions of the High Court and the Supreme Court in the Article 50 litigation.
In issue is the independence of the judiciary, and, ultimately, the Rule of Law.
The Executive Orders issuing forth from the White House must ultimately be subjected to the Rule of Law, but the political process which is engaged to select the senior judiciary in America is foreign to us in the UK. Alexis de Tocqueville believed American judicial elections were an attack "against the democratic republic itself". Whilst open elections of judges may dispel suspicions of corruption, there is a price to pay if elected judges find themselves enemies of the people who elected them, or of the President. Similarly judges who have been appointed by politicians seem to us to be compromised. Imagine the constitutional difficulties in the Article 50 case if the judges concerned had been elected or appointed by politicians.
In America, Congress no doubt represents part of the requisite constitutional check on the abuse of Executive Power. Once in place, those judges in the US Supreme Court, inevitably act professionally in carrying out their duties. However, in the US it is an accepted fact that the senior judiciary are either liberal or conservative and that a President is considered fortunate to have the opportunity to appoint a member of the Supreme Court during their term, implying that President has some influence over the judge and balance of the court. That concept is foreign to us here in the UK, and our different constitution. But in both countries, the independence of the judiciary, once in office, is sacrosanct, and it is not only the actual independence but the appearance of independence that matters if confidence in the Rule of Law is to be maintained.
It is the Rule of Law that prevents the government of the day from abusing its powers. When the Executive oversteps the mark and purports to exercise a power it does not hold, or if holding it purports to exercise it in a manner which is unlawful, it is the Rule of Law that nullifies the breach.
There is an extension to this which matters. The Rule of Law prevents a democracy descending into an elected dictatorship. On both sides of the Atlantic, the Executive emboldened by the popular vote has overstepped the mark. Here in the UK, the Rule of Law has asserted itself to ensure that Parliament and not the Executive is entrusted with the decision to commence the Brexit process. The task of upholding the Rule of Law has been the judges'. Their independence is critical to this task, which is why those who understand the importance of the Rule of Law are disappointed by any unjustifiable attack upon it and alarmed by any palpable failure to defend it.
The fact that our judges are unelected is a comfort to most of us. The method of selection of the senior judiciary is, as Lord Judge has put it, "as immune from the political process as it is possible to be in a democratic society". Perhaps that is possible in part because of the sovereignty of Parliament. In the United Kingdom Parliament is sovereign, and the judges when called upon will uphold that sovereignty. In a democracy it is not enough for the Executive to point to a popular mandate. The legislature must be engaged. As we all know, our judges recently reached that unsensational conclusion and were branded 'Enemies of the People'. In the US, the Attorney General was sacked last week for "betraying" the Justice Department by telling her lawyers not to defend the Executive Order banning entry for people from seven Muslim-majority countries.
In the US and the UK, those who love the law and know its value find themselves in the unexpected position of having to proclaim or defend its supremacy. Whilst the law rules supreme, populism and the abuse of executive power will be held in check. But recent events demonstrate that we can take nothing for granted. We share history and we share a love of freedom and a determination to defeat any exercise of arbitrary power. We have seen it in action in the US, where lawyers were camped out on the floor of JFK Airport in New York providing pro bono support to those arriving in the US following the new President's immigration crackdown. We see it in the horrified reaction of lawyers and those who understand the constitution when their President berates a judge.
The trouble with unwarranted attacks is that even if they are repelled, a sense may grow that the subject is not off-limits. The truth is that the independence of the serving judiciary is and should remain inviolate within any functioning democracy. Without that, the Rule of Law is threatened.
Until recent times it seemed unlikely that lawyers on either side of the Atlantic would find it necessary defend the Rule of Law at home. But it may be a mistake for us to fail, for the present and perhaps for a little time to come, to concentrate upon this task.Suggest a correction