“There is such a thing as lawless legality,” wrote the American journalist Walter Lippmann, “and it is to be found where men deny that in making or interpreting laws, they are bound by the spirit of law.” Lippmann’s words, almost a hundred years old, could have been written yesterday. Indeed, nowadays, such men can be found everywhere.
In the United States, Attorney General William Barr is turning the Department of Justice (DOJ) into a machine for doling out favors to President Donald Trump’s friends and enacting vengeance against his enemies. The United Kingdom’s ruling Conservative Party is scheming to strip the country’s Supreme Court of its authority to rule on a wide range of legal matters, and openly proclaims its willingness to violate international law. Populist governments in Hungary, India, Poland, the Philippines, Turkey, and elsewhere have turned courts into reliable rubber stamps for their authoritarian policies.
Across the world’s democracies, too many elected leaders have found advantage not only in expressing contempt for the spirit of the law, but in denying the letter of the law as well. Nowhere has this become more obvious – or more obviously alarming – than in the Anglo-Saxon world.
NO HOLDS BARR
In the US, the Republican-controlled Senate’s effort to ram through Amy Coney Barrett’s nomination to the Supreme Court all but confirms the triumph of “lawless legality” over the rule of law. The problem is not the nominee. Yes, one can question the ethics of Barrett’s decision to accept the nomination, given that Trump and some Senate Republicans have openly described her rapid installment on the Court as a kind of insurance policy for a disputed presidential election. But the more fundamental issue is the cynical display of raw power on the part of Trump, Senate Majority Leader Mitch McConnell, and the rest of the Republican Party. The GOP, which represents a shrinking minority of the American electorate – and, with early voting already underway, could lose control of the presidency and Senate next month – has no use for the US system of checks and balances. Some of its members no longer even bother defending democracy, with Senator Mike Lee tweeting this week that “democracy isn’t the objective” and that “rank democracy can thwart [the human condition].”
The Barrett nomination is the culmination of the Trump administration’s determined effort to shatter established norms and minimize scrutiny of the executive branch. Earlier examples include Barr’s misrepresentation of Special Counsel Robert Mueller’s findings in the Russia investigation, which was so brazen that it elicited a response from the ever-taciturn Mueller himself. Barr never provided the clarifications Mueller requested, and he was later held in contempt of Congress for refusing to comply with subpoenas issued by the Democratic-controlled House of Representatives. At issue was the Trump administration’s attempt to add a citizenship question to the US census, a move that the Supreme Court found to be unlawful, with the administration’s argument before the courts untruthful.
Barr has also seized control of DOJ investigations into Trump’s cronies, and launched his own investigations into the law-enforcement officials who previously investigated Trump and his 2016 campaign. Among these acts of lawless legality, perhaps the most egregious example is Barr’s effort to undo the prosecution of Michael Flynn, briefly Trump’s first national security adviser, who has already twice pleaded guilty to obstruction of justice for lying to the FBI. With DOJ prosecutors taking the side of the defense, arguing against their own agency’s previous statements, the judge in the case had no other choice but to appoint a retired federal judge as a “friend of the court” to argue the FBI’s case. The DOJ’s behavior has been egregious – it was recently revealed to have altered the dates on documents that it claimed exculpated Flynn.
THE ORBÁN MODEL
To understand the implications of these attacks on the rule of law, it helps to examine the case of Hungary, where the process of creating a “lawless legality” is far advanced, with legal norms, processes, and institutions having been systematically undermined for a decade. Since winning a landslide victory in 2010, Prime Minister Viktor Orbán has brazenly swept away the checks and balances by drafting a new Hungarian constitution, expanding executive power at the expense of parliament, the courts, and the Hungarian people. In short order, a shiny new liberal democracy after the collapse of communism in 1989 has been transformed into an illiberal autocracy.
True, Hungary maintains a façade of constitutional democracy, holding “free,” but not fair, elections and retaining a modest parliamentary opposition. Behind this institutional flummery, Orbán enjoys the near-absolute power of which Trump dreams, facing no meaningful opposition or institutional checks on his decisions. In addition to gerrymandering parliamentary districts to favor his own Fidesz party, purging civil servants, and cracking down on the country’s independent press, Orbán has waged a remorseless campaign to marginalize and neuter the judiciary.
Immediately after taking power, for example, he added four loyalists to Hungary’s Constitutional Court, and, to force out other justices who might stand in his way, lowered the mandatory retirement age for judges to 62. This created vacancies throughout the judiciary, all of which Orbán immediately filled with faithful party placemen. The coup de grâce was Orbán’s appointment of an old university friend and leading Fidesz member, Tunde Hando, as president of a newly created National Judicial Office, which controls all judicial appointments as well as the cases that judges hear.
When this sweeping judicial reconstruction was complete, Orbán passed a “constitutional mega-amendment” through parliament, reintroducing measures that had previously been declared unlawful by the Constitutional Court, subjecting universities to state control, and paving the way for new restrictions on religious freedom and speech. “By now it should be clear,” the legal and international affairs scholar Kim Lane Scheppele wrote at the time, that “Orbán and his Fidesz party recognize no limitations in their quest for power.”
The vacancy left by the death of US Supreme Court Justice Ruth Bader Ginsburg in September increases the risk of the Republicans completing their own Orbánesque takeover of the judiciary. Trump and his fellow Republicans are openly counting on the Court to underwrite their assault on legal norms and the rule of law, and to lock in their minority rule indefinitely. For Trump and McConnell, the installation of litmus-tested conservative judges across the federal courts has been the only real success of Trump’s tenure.
Trump’s first appointee to the Supreme Court, Neil Gorsuch, benefited from what might best be described as constitutional larceny. He filled a seat that McConnell had held open for more than a year by refusing even to consider then-President Barack Obama’s nominee, Judge Merrick Garland, following the death of Justice Antonin Scalia. Then came the vacancy left by the retirement of the Court’s previous “swing vote,” Justice Anthony Kennedy, which was filled by Brett Kavanaugh after an explosive confirmation process filled with allegations of heavy drinking and sexual assault on the part of the nominee. Both justices have shown some independence on the bench, thankfully, but ultimately can be relied on to side with the conservative majority when it really counts, such as on questions of voting rights and executive power.
For the moment, the conservative bloc has found itself on the losing side of some 5-4 decisions, simply because the Republican-appointed chief justice, John Roberts, has been desperate to preserve the Supreme Court’s institutional legitimacy, which depends on it being perceived as apolitical. Therefore, Roberts sided with the court’s liberals on decisions to uphold the Obama administration’s signature health-care legislation, the Patient Protection and Affordable Care Act, as well as its Deferred Action for Childhood Arrivals (DACA) program, thus sparing thousands of young immigrants from deportation. He also voted to extend sex discrimination protections to LGBT employees (as did Gorsuch), and to strike down a restrictive abortion law. Roberts is no liberal. But his prudence has frustrated Republicans who thought they already had the votes needed to guarantee a right-wing victory in any case important to the party’s evangelical base.
Beyond any specific case, the current fight over the seat vacated by Ginsburg is really a continuation of a partisan struggle that intensified four years ago with the Garland nomination, and began, arguably, with President Ronald Reagan’s nomination of Robert Bork in 1987. Bork’s nomination was shot down, and McConnell has been bent on revenge ever since. When McConnell refused even to meet Garland in 2016, he argued that, because it was a presidential election year, the decision should be left to the American people. This justification had no precedent in American history, was flatly inconsistent with the text of the US Constitution, and has since been abandoned by McConnell himself now that a Republican is in the White House.
Regardless of what happens now, McConnell’s constitutional hardball amounts to an acknowledgment that the Supreme Court has become a partisan institution. Moreover, he has adopted the same approach when filling seats in lower federal courts. Here, Republican presidents have long outsourced the task of selecting nominees to the Federalist Society, an advocacy group that Politico once described as, “one of the most influential legal organizations in history … deliberately, diligently shifting the country’s judiciary to the right.”
Founded in the 1980s by conservative students at Yale University and the University of Chicago who felt out of step with their more liberal-minded colleagues, the organization quickly attracted support from prominent legal figures such as Bork and Scalia (before he was appointed to the Supreme Court). Since then, the Federalist Society has grown in size and influence, building up a membership of more than 70,000, including the five Republican-appointed justices now on the Supreme Court.
Although the Federalist Society is nominally conservative, its philosophy centers more on advocacy of executive power than on the principle of limited government. In the process of ensuring that judges remain faithful to the organization’s philosophy, Republicans have exempted some judicial nominees from having to meet any standard of merit or professional experience. Under past presidents, the non-partisan American Bar Association (ABA) has vetted federal judicial nominees and graded them on a scale ranging from “extremely qualified” to “not qualified,” with no Obama-nominated prospective judges found to be unqualified. Yet to get judges he thinks will vote unthinkingly in defense of conservative values, McConnell has rammed six “not qualified” Trump nominees through the Senate.
And no, this is not a case of the ABA’s graders challenging Trump’s nominees simply because they don’t like his politics. After all, the group gave its stamp of approval to both Kavanaugh and Gorsuch. But even the most stalwart Trumpian would struggle to justify some of the president’s other picks. For example, Justin Walker, a former associate professor at the University of Louisville, was confirmed as a federal judge in the Western District of Kentucky, and Sarah Pitlyk as a federal judge in the Eastern District of Missouri, even though neither nominee had ever tried a case as a lawyer.
WHIGS AND ROBES
British Tories have shown that politicizing the judiciary and independent law-enforcement agencies isn’t the only way to limit executive accountability. Unlike in the US, where judicial appointments are inextricably entwined with partisan politics, British judicial appointments are kept at arm’s length from government and Parliament. As of now, at least, an independent panel comprising cabinet members and senior members of the judiciary control the process. Nominees are usually rubberstamped by the government, and there is rarely any question concerning a candidate’s personal politics.
This lack of ideological scrutiny reflects the fact that the UK’s judiciary does not often play a starring role in political life. Under Britain’s uncodified constitution, Parliament has the last word on constitutional matters. Whereas Americans are accustomed to seeing major constitutional reforms imposed by judicial decree (as with school desegregation and federal legalization of abortion), constitutional changes in the UK have all been achieved through legislative measures. Everything from the abolition of slavery and the enfranchisement of women to the withdrawal from the European Union has ultimately been decided by Parliament.
But this is not to suggest that the UK judiciary sits at a complete remove. On the contrary, since the middle of the twentieth century, British judges have gradually become more entangled in constitutional and political matters. Sometimes, this has been at Parliament’s behest, such as when the judiciary’s role was expanded as a result of the UK’s accession to the EU. Similarly, when Prime Minister Tony Blair’s government passed the 1998 Human Rights Act, the European Convention on Human Rights (ECHR) became domestically enforceable by UK courts.
These deepening entanglements have led to a more substantive, rights-based jurisprudence, with UK courts acquiring more leeway to scrutinize the nature of policy decisions, rather than solely the procedure by which a decision was reached. But the fact that Parliament has empowered the courts does not mean that the courts needed Parliament’s permission to develop a more substantive vision of justice. Throughout the twentieth century, British common law – a system of precedents created by court rulings over the centuries – started to show more teeth, with judges pondering whether there were actions beyond even a sovereign parliament’s authority.
As in America, a judge’s willingness to engage with such ideas depends heavily on his or her personal philosophy. In recent years, British Court of Appeal judges such as Lord Justice John Laws and Lord Justice Stephen Sedley, as well as Supreme Court justices like Baroness Brenda Hale and Lord Brian Kerr, have adopted a more activist jurisprudence. In doing so, they have set themselves apart from others, like Supreme Court justices Lord Nicholas Wilson and Lord Robert Reed, whose jurisprudence adheres to a more deferential, procedural path. That said, even the more reticent members of the judiciary have been pushed by Parliament toward a more activist role. For example, Section Three of the Human Rights Act requires that the court read every piece of legislation to ensure that it is compatible with the ECHR, at times leading the courts to adopt strained interpretations of challenged legislation.
As a result, the British judiciary has, one way or another, become ever more bound up with political life. Judges have ruled on the legality of torture, the rights of protesters, and conditions in prisons, often upholding the rights of minorities and those who are viewed unfavorably by the public and its elected representatives. It was only a matter of time before the judiciary’s enlarged role as a check on the government became a matter of controversy.
TAKING BACK CONTROL
While there was frustration with the courts under the last two Labour prime ministers – Blair and his successor, Gordon Brown – these governments recognized that judges were simply performing their constitutional duties. But after the Conservatives came to power in 2010, similar frustrations began to inform policy, with Prime Minister David Cameron’s coalition government (2010-15) and subsequent Conservative government (2015-16) going to greater lengths to marginalize the courts. Thus, there were new rules to limit judicial review, to deter third-party input, to increase court costs, and to cut off access to legal aid.
The Cameron government justified these changes on financial grounds, arguing that the Treasury was in a parlous state and that the courts would have to bear their share of the burden. But whatever the intent, its austerity policies transformed the courts from a public good into something more akin to an exclusive private service. The government seems to have envisaged all courts operating on the same model as the commercial courts housed in the Rolls Building, a gleaming redoubt off the Strand in London, whose coffers overflow with proceeds from corporate cases brought in from all over the world.
Global business relies on these courts because they have a strong reputation for judicial probity (something Prime Minister Boris Johnson and the other Brexiteers would do well to remember). But by shifting all courts toward a fee-for-service model, the government left them less dependent on the state and more reliant on the “customers” who come before them.
For his part, Cameron at least tried to maintain the judiciary’s previous façade, even if the ulterior motive for many of his government’s reforms was to reduce access to the courts and thereby limit their ability to provide a check against government. Ever the PR man, Cameron was well aware that framing his reforms as an outright attack on the judiciary would be a step too far. But his two successors have had little time for such niceties.
During Theresa May’s premiership (2016-19), the Conservative government ran into resistance when both the High Court and the Supreme Court ruled that Parliament must approve the terms of the UK’s withdrawal from the EU. The UK’s right-wing tabloids were outraged by these decisions, with the Daily Mail denouncing the judges as “enemies of the people.” Rather than acknowledging that the courts were fulfilling their constitutional obligations, May trotted out her Lord Chancellor, Liz Truss, to deliver a mealy-mouthed defense of the paper on the grounds that it was exercising press freedom.
But that was nothing compared to the Johnson government, under which contempt for the rule of law has become de rigueur. After the Supreme Court foiled his attempt to prorogue Parliament and force through Brexit on his own terms, Johnson’s government openly attacked the court, with a source at No. 10 Downing Street saying that the justices “had made a serious mistake.” Jacob Rees-Mogg, the leader of the House of Commons, accused the judges of pursuing a “constitutional coup.”
Driven partly by their loathing of that decision, the Conservatives then added a proposal for a “Constitutional Commission” to their 2019 general election manifesto, promising that judicial review would no longer be “abused to conduct politics by another means.” As for what counts as “abuse,” the government seems to have in mind any court decision it finds disagreeable, including one barring it from dissolving the country’s legislative chamber (and another one preventing it from stripping a British teenager of her citizenship in blatant violation of international law).
Despite facing a pandemic, an economic crisis, and a looming Brexit deadline, Johnson still has found time to pursue this campaign against the judiciary. This summer, for example, the Lord Chancellor, Robert Buckland, announced the creation of an Independent Review of Administrative Law, which will be chaired by Lord Edward Faulks, a Conservative peer and former justice minister. While the government has backed away from the full-scale constitutional revolution heralded in the Conservative manifesto, it has given the new body a broad remit, suggesting that it will take steps to bring the courts more effectively under parliamentary (and thus government) control. In all likelihood, the Review will conclude with proposals to circumscribe the courts’ jurisdiction, either through procedural means, such as restrictive time limits and caps on the number of people who can bring cases, or through more substantive means, such as introducing clauses to exempt legislation from judicial review altogether.
SPECIFIC AND LIMITED ILLEGALITY
For a glimpse of what this might look like, consider the government’s Internal Market Bill, which is intended to create a standardized internal market across the UK’s constituent nations after Brexit. This may sound like dry, anodyne stuff, but there is dynamite concealed within the text, which itself breaches the Withdrawal Agreement, a formal treaty signed in January by the Johnson government and the EU.
In essence, the legislation would allow the government to ignore international law and shirk its own treaty-bound obligations. Johnson’s government does not even pretend otherwise. As Brandon Lewis, the secretary of state for Northern Ireland, infamously put it last month, the government would be breaking international law, albeit only in a “very specific and limited way.” As for the matter of judicial review, the bill’s later clauses attempt to prohibit the courts from ruling on any decisions made by government ministers under the new law, including in cases where such decisions may be violating human rights under the ECHR.
As Mark Elliott of the University of Cambridge and other legal experts have observed, it is unlikely that the courts will simply accept this revocation of their authority. While the language in the bill goes some way toward forbidding British courts from intervening, it does not do so in “unambiguously clear terms,” implying that the text can still be interpreted in a way that preserves the ordinary functioning of judicial review.
The question, then, is what will happen if the government decides to close these loopholes and expressly forbid the courts from ruling on any decision made under the legislation. Such action would carry the UK across the Rubicon, leaving the courts to consider whether there are indeed limits to Parliament’s sovereignty, and whether they have the authority say so.
With the Trump administration and the Johnson government waging war on the spirit and even the letter of the law, the integrity and independence of the West’s two great legal systems seem more endangered than at any time in their history. The hollowing out of the rule of law in the Anglo-Saxon world – and of its influence on legal, economic, and political institutions worldwide – has become an all-too-plausible scenario.
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