March 16 2023

‘Our politicians should be careful about what they wish for’

‘Our politicians should be careful about what they wish for’

Stars and stripes of the future (Erich Ferdinand, Flickr. Creative Comms)

Stability is crucial for anyone to have faith in the law.  Laws cannot blow hither and thither, changing with every shift in the wind, but must provide a firm, clear framework by which people can guide their behaviour.  But at the same time, laws cannot not be treated as though they are divine revelation, infallible pronouncements that can never be changed or revised.  The challenge is how to balance these two contradictory positions, recognising that laws must adapt and develop- but not too much, and not too often.

It is judges, rather than legislators, that more frequently face this quandary.  Rarely do politicians in liberal democracies gain power and then choose to sweep whole swathes of statute from the books, with changes instead made piecemeal, and with new legislation often passed on the basis of a democratic mandate from the people.  Judges, despite having no such democratic mandate, are more often presented with opportunities to change the application or interpretation of the law, particularly those judges sitting on the higher appellate courts.   They must ensure the law is stable and predictable, while also ensuring that justice is done.

To deal with this challenge, common law courts developed the idea of precedent, or stare decisis, which obliges judges to decide similar cases in similar ways, and which binds lower courts to follow the decisions of their superior courts.  It was the importance of precedent that was in the dock of the US Supreme Court last week, as the justices heard a challenge to the constitutional right to abortion, protected by Roe v Wade.

In oral argument, the US Attorney General argued in defence of Roe. US solicitor general Elizabeth Prelogar, seeking to discourage the conservative wing of the Court from overturning a decision that has stood for over thirty years, and which has been integral to the advance of gender equality, focused upon the importance of this principle.  She told the justices that it would be a ‘stark departure from the principles of stare decisis, while Justice Kagan noted that precedent is crucial to ‘prevent people from thinking this court is a political instituiton that will go back and forth…depending on changes to the Court’s membership’.

Justice Kavanaugh pointed out the obvious flaw in relying too strongly upon precedent, noting that the Supreme Court had previously upheld the constitutionality of slavery, segregation, and racial internment, ‘precedents [that] are seriously wrong’.  His criticism is strengthened by the fact that Roe v Wade is a constitutionally problematic judgment.  Rather than being constructed upon the much more stable notion of gender equality, Roe is built upon the more contentious right to privacy, which prevents the state from intruding too far into the sanctity of people’s homes.  It is this constitutional principle that has led to the Court striking down anti-sodomy laws and legalising mixed-race and same-sex marriage, laws that stopped people from engaging in acts that they all freely consented to.  In Roe, however, there is no such mutuality of consent.

The liberal justices know this, which is why much of their questioning focused upon the importance of respecting precedent.  What is clearly in their favour is that any wholesale reversal of Roe will unquestionably draw the Supreme Court into the political mire.  The impartiality of the Court is already severely in doubt, after Mitch McConnell, then the Senate Majority Leader, stonewalled President Obama’s nominee, Merrick Garland, in 2016, and after President Trump appointed justices who were not particularly shy about which side of the political aisle they fell on.  In his confirmation hearings before the US Senate, Kavanaugh was happy to criticise Hilary Clinton in strongly partisan terms, while Amy Coney Barrett, the final justice appointed by Trump stood, Eva Peron-like, on the White House balcony after her nomination, and recently delivered a speech at the inauguration of the Mitch McConnell Center at the University of Louisville.   Hardly the behaviour of the legal philosopher Ronald Dworkin’s idealised jurist, Hercules.

Judging from the questioning by the conservative justices, the need to respect precedent may check them slightly, but will not prevent them overturning Roe in all but name.  A probable outcome is that the decision will follow the path first forged  by the Supreme Court in Planned Parenthood v Casey, which allowed states to place restrictions on abortion provided that they did not place an ‘undue burden’ on women seeking abortions before foetal viability at twenty-four weeks.  Continuing along this path will most likely see a majority of the justices reject the bright-line rule of viability, a relatively objective measure by which the constitutionality of limitations on abortion can be assessed, and move towards a more subjective test of what an ‘undue burden’ means.  This will free conservative states to impose punitive restrictions on abortion – that will most likely affect poor and black households – like requiring abortion clinics to have hospital admitting privileges, or requiring them to meet heightened standards of care that are expensive but medically unnecessary, in effect forcing them to close.

Should the conservative justices so nakedly use their numerical advantage to overturn a longstanding precedent, it would shatter the stability of the law.  As many commentators have pointed out, if the principle that underpins Roe can be so easily overturned, there is little to stop the Supreme Court overturning other Republican bugbears, such as the right to gay marriage, concluding that as it is not specifically enumerated in the US Constitution, it is a matter for the legislature and for the people, rather than for the courts.  It makes the law subject to the whims of the judges, abandoning legal objectivity in favour of political objectives.

In the UK, we do not face the same scale of challenge.  Judges are not appointed on the basis of their politics and their fidelity to a particular interpretation of the constitution – or at least not yet.  When faced with the question of overturning precedent, or establishing a novel constitutional principle, such as in the Supreme Court’s Miller judgment in 2019 on prorogation, or in the High Court’s decision this week on the justiciability of the ministerial code, judges are careful about where they tread, and are often emphatic about their political neutrality.

The reforms mooted this week by the government, however, may shatter this stability.  While there has always – rightly – been the presumption that Parliament can legislate to overturn the decisions of the judiciary, this does not extend to ministers being able to unilaterally reverse decisions they object to.  Even if the government pursues the more superficially constitutional route, which would see these decisions reinterpreted under an ‘Interpretation Act’ at the end of every year, maintaining the facade that the decisions are being overturned by Parliament, rather than the executive, it would steamroll the ordinary legislative process, removing the checks and balances that are crucial for any legislation to be legitimate.

Not only might such a power check the courts, who will be wary of seeing their decisions held up for review at the end of the year, it will deter individuals and campaigning organisations from bringing challenges before the courts. What is the point of litigating an issue if the government can simply impose whatever outcome it likes at the end of the year, particularly if the reversal has retrospective effect?

Consequently, the outcome of such an act would either be stability at the expense of justice, with the courts and the government’s political opponents quietened into acquiescence, or chaos, as the judiciary strains against the injustice of the executive.  So far, despite the British government’s rhetoric, the UK courts have not strayed beyond their constitutional bounds, maintaining a clearly non-partisan stance in upholding the values of the British constitution.  Legislation like this however, drags them into the political thicket, moving us closer towards a US style politicised judiciary.  As the debate over abortion rages on, the threat this poses to the British constitutional order is all too apparent, and our politicians should be careful about what they wish for.