The Reckless Assault on the Supreme Court
By Raymond Wacks Emeritus Professor of Law and Legal Theory
(Courtesy of The Montréal Review)
The Ashes are slowly fading into a (bitter) memory. England came agonisingly close to winning the historic cricket contest against Australia.[1] One event, however, will be especially hard for English supporters to forget. On the final day of the second test at Lord’s, Jonny Bairstow was given “out” stumped when he wandered out of his crease believing the ball to be dead. While the law was correctly applied by the umpire, his controversial verdict was widely criticised as not being within the spirit of the game.
Suppose that the rancorous reception that greeted this strict interpretation of the laws of cricket led the International Cricket Council to declare that in future, umpires’ authority to declare a batsman stumped would be discharged by the chief administrative official of the ICC placed at a strategic position on the field. Umpires might legitimately wonder whether this encroachment upon their powers did not constitute so gross a violation of their responsibility that they should, at the very least, wish to protest. Imagine that such limitations persisted until they were told that they no longer had the power to decide whether a batsman was out. Their task would largely be confined to calling wides, no-balls, boundaries, and byes. Every diminution in their power would now constitute an affront to their office. A point would be reached when they cease to exercise the very function for which they have been appointed.
The same is true of judges. Unchecked executive discretion reduces them to impotent spectators of executive action – a grotesque distortion of their calling. No government relishes the pesky interference by courts with its political agenda. And this is no less true of democratically elected governments. Nor is the hostility towards judges the monopoly of any ideology: it is expressed by both left and right.
So, for example, the Conservative Party in the United Kingdom has recently witnessed a recent backlash against the escalation of both the extent and scope of judicial review (JR) since the Supreme Court’s notorious ‘prorogation’ decision in 2019 which unanimously ruled that the government did not have the power to suspend Parliament.[2] And in the United States, the Supreme Court is under fire from the Democrats for its judgment that the Constitution does not confer a right to abortion.[3] Moves are therefore afoot in the Congress to neutralize the perceived rightward shift during the Trump administration by adding four justices to the bench. These crusades are injudicious.
The Israeli government, in seeking to curtail the powers of the Supreme Court, is not only undermining the rule of law, but endangering the country’s celebrated democratic system. And in this enterprise, Israel is in questionable company. There are echoes of the South African apartheid government’s crackdown on the judiciary, the erosion of whose powers it assiduously advanced by legislation that prevented judges from ruling on the legality of the detention of its opponents.[4] And PiS, Poland’s ruling party, has branded judges ‘self-serving, unelected elites who substitute their own preferences for those of voters’.[5] This charitable appraisal was followed by the enactment of stringent limitations on the autonomy and independence of the courts.
DEMOCRATIC CHOICE
Populists seem to have little difficulty simultaneously flaunting and flouting the rule of law. The legal system is censured for corroding the rule of law and depriving the people of its benefits, while the law is employed to frustrate democratic values. But, it may be asserted, are not democratically elected legislatures entitled to express the will of their voters even if – as we have seen for months on the streets of Israel – their actions are widely rejected? And does JR not weaken this vital democratic exercise of choice? Surely, it is argued, parliaments are a better, and more representative, forum for the deliberation of important social, political, and moral questions. Legislatures, in other words, have democratic legitimacy. Unelected judges do not. [6]
Two sorts of argument are typically deployed both in support of and against JR. The first asserts that JR is good (or bad) because it delivers better (or worse) results than other procedures for resolving rights disputes. The second claims that JR is good (or bad) because it produces a procedure that is (or is not) consistent with democracy. In other words, public deliberation is good for democracy; JR facilitates public deliberation; therefore JR is consistent with (or contributes to) the conditions of democratic rule.
LEGITIMACY
It is generally assumed that legislatures enjoy democratic legitimacy, while courts generally lack it. But this must surely depend on the circumstances obtaining in respect of both institutions. A Supreme Court’s legitimacy is likely to be strong where – as in Israel – popular support is based on the nature of its powers, its record, or the method by which its members are appointed.
Such legitimacy may, however, turn on the institutions and rights that actually exist or are recognised. The right to vote is obvious, but is the system of ‘first past the post’ (FPTP) more or less democratic than proportional representation (PR)? Complex questions arise when we attempt to evaluate which rights are essential. Are we concerned with the outcome or the means by which they are reached?
The method of appointment of Supreme Court judges is also on the Knesset’s agenda. The legitimacy of the judiciary often turns on how judges are elevated to the bench. Where appointments are generally perceived to be fair, transparent, and non-political, the prospect of the courts enjoying popular democratic legitimacy is obviously enhanced.
JUDICIAL AUTHORITY
To support judicial oversight is not to deny that judges may be influenced by subjective moral, political, or ideological considerations, but that is less likely to occur than in the case of elected legislators answerable to their party or constituency. Furthermore, detached from the rough and tumble of parliamentary rhetoric and oratorical persuasion, judges have both the time and, in many cases, the expertise, to examine both sides of the argument presented to them in an atmosphere, one hopes, of tranquil reflection and deliberation.
Judicial authority is a potent process by which perceived failures in democratic outcomes may be ‘corrected’. It is also generally true that disagreements between judges are generally based on principle rather than popularity. Another advantage of the procedure is that courts are able to safeguard non-majoritarian representative democracy. It also empowers individuals to vindicate their rights against government. Misgivings about its undemocratic nature may be offset by its general legitimacy rooted in its contribution to the protection of individual rights.
There is a paradox in the qualms expressed by those who rail against the alleged hegemony of judges. While on the one hand, JR, especially in its strong form, is perceived as a force that destabilises the separation of powers and the democratic principles which are its constitutional underpinning; the rule of law is, on the other hand, actually enhanced by the power of courts to ensure that government actions comply with the constitution. I believe that to diminish judicial authority is to weaken a major pillar of democratic government.
It is time for Prime Minister Netanyahu, after a tenacious spell at the crease, to accept that his wicket has fallen, and, in the interests of his country, stride graciously to the pavilion.
About the writer:
Raymond Wacks, Emeritus Professor of Law and Legal Theory, graduated from Wits law school in 1969 having served on the Executive of the SRC and as President of the Law Students’ Council. He left South Africa in 1970 to pursue research at Oxford where he spent the next decade. In 1982 he returned to SA to take up the chair in public law at the University of Natal, Durban.
Wacks is the author of fifteen books, several of which have been translated into more than a dozen languages on legal philosophy, privacy, and justice. He is also the co-author of five books, and editor of ten. His monograph, The Rule of Law Under Fire was published by Hart in 2021. Oxford University Press published the sixth edition of his Understanding Jurisprudence: An Introduction to Legal Theory in 2021, as well as the third edition of Law: A Very Short Introduction which appeared earlier this year.
[1] England and Australia compete biennially for a small urn that is believed to contain the ashes of a wooden bail. Following the latter’s victory in 1832, a British newspaper published an ‘obituary’ of English cricket which declared that its ‘body will be cremated and the ashes taken to Australia’.
[2] R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.
[3] Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 US ___ (2022), overruling both Roe v Wade 410 US 113 (1973) and Planned Parenthood v Casey 505 US 833 (1992).
[4] See Raymond Wacks, ‘Judges and Injustice’ (1984) 101 South African Law Journal 266; Raymond Wacks, ‘Judging Judges’ (1984) 101 South African Law Journal 295 (in reply to J Dugard, ‘Should Judges Resign? – A Reply to Professor Wacks’’(1984) 101 South African Law Journal 286); Raymond Wacks, ‘Judges and Moral Responsibility’ in Wojciech Sadurski (ed), Ethical Dimensions of Legal Theory, Poznan Studies in the Philosophy of the Sciences and Humanities (Amsterdam, Rodopi, 1991) 111.; Raymond Wacks, ‘Law’s Umpire: Judges, Truth, and Moral Accountability’ in Peter Koller and André-Jean Arnaud (eds), Law, Justice, and Culture (Stuttgart, Franz Steiner Verlag, 1998). See too David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford, Clarendon Press, 1991).
[5] The Economist, 23 January 2020, ‘Poland’s ruling party should stop nobbling judges’. See Martin Krygier, ‘The Challenge of Institutionalisation: Post-Communist “Transitions”, Populism and the Rule of Law’ (2019) 15 European Constitutional Law Review 544.
[6] The case is made most powerfully by Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) Yale Law Journal 1346. His preference for parliamentary rather than judicial decision-making would appear logically to commit him to supporting the Israeli government’s proposals. The rationale for JR is, of course, equally robustly, advanced by Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (New York, Oxford University Press, 1996). I consider these competing contentions in more detail in Raymond Wacks, The Rule of Law Under Fire? (Oxford: Hart Publishing, 2021), 62-65.
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