I am writing this on the 4th of July. Independence Day as our American friends call it. According to the US nationalist mythology, something all successful societies indulge in, a plucky band of freedom-loving colonists threw off the yoke of British tyranny to create a democracy serving the people. The truth, as ever, is somewhat murkier. It has been said that revolutions involve the middle class using the lower class to take out the upper class, so the middle can move up a rung. It is certainly true that the American revolution was a very conservative one; driven by wealthy land-owning families who saw greater individual advantage in running the country themselves.
I have a personal interest in the great American experiment. Amongst my forebears are those wealthy land-owning families who created the split from Britain. An uncle (more than a few generations removed) wrote the preamble to the constitution “We the people…” and polished Madison’s first draft into final form. A man of “interesting” character, he did express two views that are prescient today. The first: danger to democracy was that a liar and charlatan could endear themselves to the disaffected and ignorant, thereby gaining and abusing power. His solution to this was rather unpalatable: limiting the right to vote to the wealthy. The second was that slavery was an abhorrent evil that should have no place in this new society, and its legacy could harm America for generations to come. Across the North Pacific it is difficult to avoid the sound of roosting chickens.
And so to America today. Observing the travails of a society similar enough for you to have a passing understanding of the political and cultural dynamics at play, but different enough to be bewildered by what is unfolding, is an engaging, if disturbing, pastime. The idea of a judiciary that is either elected by popular vote (state level) or subject to direct vetting and approval by politicians (federal level) tends to appal those of us with stronger ties to the British common law tradition. To be fair, the idea of the judiciary appointed by some opaque and mysterious process removed from serious scrutiny tends to appal our American cousins.
The current spectacle whereby the United States Supreme Court is perceived to decide cases based on political ideology is deeply unsettling. So, too, is the erosion of the faith that the American public have had in such an important institution. The view from our shores makes it hard not to feel that the US judicial appointment system encourages, or has the appearance of encouraging, partisan decision-making. The recent decision on presidential immunity illustrates this. I do not propose to comment on the rights and wrongs of the decision itself. The concept of immunity for officials carrying out public functions is not in itself controversial. For instance, we, as judicial officers, are the beneficiaries of such immunity. Nevertheless, the perception of judges as being partisan or beholden to a political or ideological belief rather than the rule of law is poisonous to confidence in a justice system.
It is a comforting reflection to note that in the last year, we have had a change of government, which happened without riot or recrimination. Changes in policy that directly affect the administration of justice are being enacted, such as the return of three strikes and the limitation on credit for mitigating features in criminal sentencing. Regardless of whether we as judges think that these are good or bad changes. no one argues that they cannot be made or implemented. We are fortunate that our fundamental institutions of government remain strong.
Before we become too smug, it is chastening to note how quickly an apparently robust system of justice can unravel and lose the confidence of the public. A fair, well-administered system of justice requires relentless hard work. No pressure, but it is important to keep that up.
Noel Sainsbury