Thinking About Things: The Rise of Law and Decline of Politics
March 3, 2020
I have recently finished reading an extraordinary book by Jonathan Sumption: Trials of The State and the Decline of Politics. It is one of those rare books that is as trenchant as it is short (it is about 125 pages). The book, published late last year in Great Britain, is essentially a publication of five separate lectures broadcast on BBC Radio 4 during the Summer of 2019. Sumption is a British judge and historian who served as a Justice on the UK Supreme Court from 2012 the 2018 and is only one of five people to be promoted directly from the bar to the highest court. According to one of the blurbs on the dust jacket of the paperback copy, his shaggy white hair covers “the biggest brain in Britain.” But there is nothing intimidating about the book, which is written with unusual simplicity and clarity. And while much of the focus of the book is on law and politics as they evolved in the United Kingdom, the book has considerable explicit and implicit relevance to law and politics today in the United States.
The book presents in five chapters: (1) Law’s Expanding Empire; (2) In Praise of Politics; (3) Human Rights and Wrongs; (4) Lessons from America; and (5) Constitutions, New and Old. The very first sentence is attention-grabbing: “In the beginning, there was chaos and brute force, a world without law.” He goes on to point out that in the mythology of ancient Athens, Agamemnon sacrificed his daughter so that the gods would allow his fleet to sail against Troy. His wife murdered him to avenge the deed, and she in turn was murdered by her son. Athena, the goddess of wisdom, put an end to the cycle of violence by creating a court to impose a solution in what today we would call the public interest: a solution based on reason, on the experience of human frailty and on fear of the alternative. Aeschylus in the Orestieia trilogy had Athena justify her intervention in the world of mortals as follows: “let no man live uncurbed by law, nor curbed by tyranny.”
The expansion of law, especially in the last century, is one of the most significant phenomena of our time. And in this country, even more so than in Great Britain, the law touches nearly everything. The law has more power than the family regarding the well-being of children. The law has more power over social behavior than do most churches and increasing power over commerce at every level. The expansion of individual and group constitutional rights has placed matters before courts that, in virtually every other developed country in the world, are handled by legislatures and hence have the power of real political legitimacy.
Further, the proliferation of administrative agencies within the federal government has permitted elected officials to avoid voting for or against whatever it is that those administrative agencies do by regulation on a day to day basis. This protects them against the anger of voters and makes all forms of regulation – whether over individuals, farms, factories, or other enterprises a matter for adjudication by the courts.
This somewhat subtle abandonment of responsibility by elected officials in favor of the work of agencies and courts has contributed to massive divisiveness in societies around the world, but especially in the United States. The active membership in political parties has been abandoned to small numbers of activists who are increasingly unrepresentative of those who vote for them. One effect has been to obstruct the ability of parties to function as instruments of compromise, and to limit the range of options on offer to the electorate. Sumption finds this a “dangerous position.”
Sumption addresses uncomfortable truths, one of them being that an important object of modern democratic constitutions is to treat the people as the source of legitimacy, while placing barriers between them and the levers of power. They do this in order to contain the fissiparous tendencies of democracy and to counter its inherent tendency to destroy itself when majorities become a source of instability and oppression. One of these barriers is the concept of representation and the other is law, with its formidable bias in favor of individual rights and its corps of professional judges who are not accountable to the electorate for their decisions.
We learn that in Great Britain, as in the United States, if you were to sit in on an appeal in the UK Supreme Court on a question of public law, you would notice that in addition to the advocates of the parties, there are numerous lawyers representing “intervenors”, or what in the American system we call “amici curiae” or “friends of the court.” As here, these are nothing more than very expensive lobbyists. They are typically single-issue pressure groups with highly specific political agendas. Often, if not always, they present agendas which they have failed to persuade the legislature to adopt but hope to impose through the courts. Their presence is symptomatic of a profound change in the constitutional role of the courts. As Sumption puts it: “[t]o adapt the famous dictum of the German military theorist Clausewitz about war, law is now the continuation of politics by other means.” Sounds very familiar.
In Britain, judges have been nominated by a non-political commission since 2006. But there are demands that they should be subject to political scrutiny before their appointment takes effect. Sumption believes that the political character of much of their work will sooner or later make these demands irresistible. And he points out that in United States the result has been the appointment of judges because of their identification with known political positions. He fears that in Great Britain, such a change would transform the entire nature of the legal process and discredit the judges who work in it as has already happened to a non-trivial extent here.
And so, he gets to the heart of the matter about what is going on in the judiciary in this country. He believes that the judicial resolution of policy issues undermines the single biggest advantage of the political process, which is to accommodate the divergent interests and opinions of citizens. And even though politics in Great Britain and the United States may not be doing a good job of accommodating these divergent interests, the courts do not “accommodate” at all: they decide in the context of what in most cases is a zero-sum game. Given that successful democracies depend on the consent of the losers, constant recourse to the judiciary on vital matters of social or economic policy creates losers who simply will not accept the system anymore. One would have to have been under a rock for many years not to see this happening all around us right now.
Thus, here we are, one fifth of the way through the 21st Century, watching presidential candidates of both parties seeking votes on the basis that they will appoint judges whose opinions will be in the interests of those who vote for them. We see a president suggesting that at least two respected Supreme Court Justices should recuse themselves in matters involving his administration; we see individual justices aligning themselves closely with one or another political party’s interest groups; we see senior legislators still fulminating about at the confirmation of a Supreme Court Justice whose legitimacy they do not accept and whom they would not hesitate to impeach if they could; we see senior legislators scheming to “pack” the Supreme Court in another administration; we see individual justices making political comments that become public demonstrating obvious political leanings; and then we see Chief Justice Roberts seeking, lamely and ineffectively in my opinion, to suggest that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
There was a time when this may have been so, but that time passed no later than 1986, when Judge Robert Bork was denied a seat on the Supreme Court solely for political reasons. That time may have passed even earlier than that, but the name Bork quickly became a verb and is still in common use. Judges whose views are too pure (or too impure) get “Borked” by the Senate.
There are at least two approaches to mitigating the current or looming catastrophe, and they are uncomplicated in their own way, albeit hugely controversial. One approach is to begin to limit the breadth or number of certain constitutional rights and remit them back to legislatures where they probably should have been resolved in many cases. To pick an example of something that has created much discord, the Constitutional right to privacy was discovered in a 1965 criminal case involving poor Mr. and Mrs. Griswold. They were famously prosecuted by the great state of Connecticut for using contraceptives in the privacy of their own bedroom in their own home, a practice criminalized in 1879 by the Connecticut legislature.
The stupendous idiocy of the State of Connecticut for bringing the case notwithstanding, the existence of an archaic and stupid statute, enforced by foolish prosecutors was not a sufficient basis for elevating the right of privacy to a constitutional level. But the Supreme Court did just that in Griswold v. Connecticut. The court, by a 7-2 margin, found a right of marital privacy to be within the penumbra of the specific guarantees of the Bill of Rights. The expansion of this and other allied rights thus removed from legislatures any ability to mediate various social issues to a political resolution.
Why this point is broader than it might sound is shown by a brief digression into one of the underpinnings of Brexit. Few Americans are likely to know very much about the European Human Rights Convention, much less Article 8 thereof. I certainly knew little about it until reading Sumption’s book. To make a long story very short, the Human Rights Convention was adopted by the British parliament through Britain’s Human Rights Act of 1998. It came into effect in 2000. That parliamentary law empowered, indeed mostly obliged, British courts to strike down any rule of common law, regulation or government decision found to be incompatible with the Convention. It required the courts to apply muscular principles of interpretation to statutes with a view to making them conform with the Convention. If interpretation of this kind was not possible, then an act of Parliament could be declared incompatible with the Convention. Furthermore, the Human Rights Act required the British courts to take account of the rulings of the European Court of Human Rights, the international court set up in Strasbourg to interpret the Convention.
While many in Britain disliked being told how to conduct their affairs by a foreign court, the deeper and more nuanced objection to the entire process derived from the impact that the European Convention and the Human Rights Court had on the way that Britain made laws for its own society. Notably, the Human Rights Convention was drafted in the aftermath of the Second World War, under the shadow of the Gestapo and the concentration camps of the Third Reich. Initially created to address notions of “inhuman or degrading” treatment, these notions expanded over time. But Article 8 of the Convention involved miles of mission creep. For example, Article 8 now protects the human right to private and family life, the privacy of the home and of personal correspondence. The Strasbourg court developed this human rights expansion into it into what it today calls a “principle of personal autonomy.”
Sumption points out that a very similar development has occurred in the United States courts in relation to the right to liberty under the 14th amendment (and of course the right to privacy created in Griswold and its progeny). Much like the expansion of individual and group rights in the United States under the U.S. Constitution, the Strasberg court has held that a vast range of issues to be covered by Article 8, including: the legal status of illegitimate children; immigration and deportation; extradition; criminal sentencing; abortion; artificial insemination; homosexuality; same-sex unions, child abduction; the policing of public demonstrations; planning and environmental law; eviction for nonpayment of rent, and much more. None of these intrusions on personal liberty have been agreed by the signatory states. They are all extensions of the text of Article 8, which rest on the sole authority of the judges of the Strasberg Court.
This came to be seen in Britain as what it was: a form of nonconsensual legislation. This great expansion of “fundamental human rights” transformed the Human Rights Convention from an expansion of noble values almost universally shared, into something meaner. As Sumption puts it:
It has become a template against which to assess most aspects of the ordinary domestic legal order, including some highly disputable ones. The result is to devalue the whole notion of universal human rights.
This brings us to a very similar proposition here in the United States. Human Rights Law, or simply the declaration of individual rights based on non-statutory or non-legislative sources, transforms controversial political issues into questions of law for the courts. To quote Sumption again:
if we are going to deal with fundamental human rights in a way that has such radical implications, then we need to have a very clear idea of what a fundamental human right really is. In particular, we have to distinguish a fundamental human right from something that is merely a good idea.
It was in part this slow and inexorable loss of control or influence over their own lives and liberty that motivated many Briton’s to choose Brexit over remaining in the European Union. It would be a mistake for American citizens not to appreciate that something of the same dynamic brought about the election of Mr. Trump in 2016 and may well do the same for Mr. Sanders (or Mr. Trump again) in 2020.
A second approach is to reduce substantially deference that the federal courts are today obliged to give to decisions of federal administrative agencies and the hundreds of thousands of pages of regulations that each of these agencies promulgates every year. But reducing that deference would clog the courts and in any case would not be complete without at the same time making elected officials in the House of Representatives and the Senate politically responsible for the enactment of those regulations. Just requiring elected officials to vote for or against these regulations could have a substantial impact on the ability of otherwise unaccountable agencies to regulate our personal, social, economic, and other affairs. Much has been written on this, and it is not a short topic, but it is conceptually simple.
The main if not only point of these approaches would be to return the judiciary to something much more akin to “calling balls and strikes”; to get judges out of the business of having such a deep commitment to one or another political party; and to do as much as practicable to take ideology out of the judiciary and to leave as much of it as possible in the legislatures.
These things may not happen in my lifetime, but if they do not happen in the lifetime of the next generation, we should not be terribly surprised to see the both law and politics continue their precipitous downward trajectory.