I am now officially old and slow. This is the third time in an hour that I have seen this meme, and only this time do I get it.
Steve
Kek. One thing I haven’t seen yet in the lamentations of their transwomen over DRUMF getting another Supreme Court nomination is any acknowledgement that this situation shouldn’t exist.
Shouldn’t matter who’s on the Supreme Court, it should be the most boring and predictable branch of government, merely sifting through facts and applying laws. The existence of “liberal” and “conservative” judges proves the institution has failed. Instead of an honest ref, it’s become an authoritarian centre of political power in its own right.
It’s more hypocritical and less democratic than the Sanhedrin.
aaa
If the Dems controlled the Senate, Trump couldn’t nominate a new SC member in time. So, really, they only have themselves to blame.
Bernie G.
Nice one.
Tractor Gent
Something I read said that Trump had a list of something like 40 names, some of which weren’t experienced judges. Senator Ted Cruz was mentioned. You would think that a long career working up the judicial greasy pole would be a better qualification than being a politician. But then, what do I know being a Brit.
bloke in spain
@Steve 13:09
Problem is the guys wrote the Constitution never envisaged a political class despises the people of the US
Jussi
A good candidate might be a woman with slight colour tinge (injun or latino, say), law degree, army officer, war hero.
Steve
BiS – same in the UK/EU. The ascendancy of lawyers as the priestly caste of aloof, unaccountable technocracy that rules on the basis of… what? Self-proclaimed expertise?
PJF
Problem is the guys wrote the Constitution never envisaged a political class despises the people of the US
I rather think they did; they wrote the Constitution (separation of powers, etc.) assuming that the political class would be malicious, power-grabbing assholes. The arrangements made for the Supreme Court indicate they didn’t take enough care. Contrary to what Steve says, the Supreme Court should be politicised – because it was inevitable that it would be. You’re talking about a body that has the final say on whether laws and executive actions are permissible; the final say on whether an election is valid. What the fuck do you think is going to happen with that level of power? Expecting an honest referee there is like expecting socialism to work; an expectation that humans won’t be humans.
Something I read said that Trump had a list of something like 40 names, some of which weren’t experienced judges. Senator Ted Cruz was mentioned. You would think that a long career working up the judicial greasy pole would be a better qualification than being a politician. But then, what do I know being a Brit.
Being a career judge is great if you want someone who knows procedure. But procedure is far more important in the lower courts than in the SCOTUS and it certainly doesn’t guarantee that they’re good *judges* – just that they know how to dot i’s and cross t’s.
Agammamon
bloke in spain
September 19, 2020 at 1:37 pm
@Steve 13:09
Problem is the guys wrote the Constitution never envisaged a political class despises the people of the US
That would be hard to imagine for a group of people who had just recently broken away from their previous government specifically because the political class despised the people.
Agammamon
Jussi
September 19, 2020 at 1:58 pm
A good candidate might be a woman with slight colour tinge (injun or latino, say), law degree, army officer, war hero.
OMG – he should appoint Kamala Harris. You can’t say she doesn’t have the qualifications on paper, she’s a she, and she’s a biracial POC. Take the wind right out of the Harris-Biden campaign’s sails.
Mr Ecks
So with Ginsberg gone what could happen is that if Roberts sides with the 3 liberal pukes that = SC tied–and so the court next level below will decide the Election. Still sounds to me that the Dems have a chance of stealing away the result.
Bloke on M4
Steve,
“Shouldn’t matter who’s on the Supreme Court, it should be the most boring and predictable branch of government, merely sifting through facts and applying laws. The existence of “liberal” and “conservative” judges proves the institution has failed. Instead of an honest ref, it’s become an authoritarian centre of political power in its own right.”
Because once you give a court power over government, with judges who can’t get fired, that power is going to get abused. You’re relying on people being good, rather than having a system that addresses when they aren’t.
dearieme
“once you give a court power over government, with judges who can’t get fired, that power is going to get abused.”
Was that Toni Blair’s calculation, do you think?
bloke in spain
@Agammamon
“That would be hard to imagine for a group of people who had just recently broken away from their previous government specifically because the political class despised the people.”
Never is though is it? The revolutionaries never think they’ll one day be the government the people want to rebel against.
The separation of powers is mentioned above. That works when the people holding the separated powers have opposing interests. What happens when they all have the same interests?
Dennis, Speaking Truth To Loonies
Good to see Ecks now has a new ‘they’re gonna steal the election’ scenario to rave about. It’s just as stupid as the other scenario I cleaned his clock about, but being stupid has never stopped him before, has it?
Why do loonies always have so much energy?
Gamecock
Dennis of Multiple Personalities, we don’t know the future. Things are happening:
‘Levin was reacting to rulings Thursday by the Pennsylvania Supreme Court that allowed mail-in ballots received up to three days after Election Day to be counted — even if they had no evidence of being postmarked by Election Day. Pennsylvania Secretary of State Kathy Boockvar (D) also issued a directive preventing county election officials from comparing signatures on mail-in ballots to signatures on the voter rolls.’
Attempts to screw the election are real. Mr Ecks is correct, “the Dems have a chance of stealing away the result.” We may look back in December and see they really never had a chance, but we don’t know that now.
Bloke on M4
dearieme,
“Was that Toni Blair’s calculation, do you think?”
Quite possibly, but we don’t have a formal constitutional system that sits above elected government like the USA. The supreme court in Westminster can be binned by a government, with at most, an act of parliament.
MyBurningEars
Not sure I follow dearieme’s point actually. Might be helpful if he could explain.
The UK Supreme Court has copied its name from the US version, but it’s very different. Much less emphasis on constitutional law for one thing, far more on addressing unclear areas of law. And as bom4 says, the UK is very different to the USA constitutionally. Parliament is both sovereign and cannot bind its successors, and is often pretty tightly under the control of the same government that runs the executive, so there’s much less fuss about legislature-versus-executive battles, or Acts of Parliament that are unconstitutional. (Though devolution has raised more issues about whether devolved legislatures and executives are acting within their constitutional remit.)
I think the coming of the Supreme Court was more a constitutional tidying-up exercise than anything else, moving a bit further away from “fusion” of powers and more towards “separation”. Though I’m not sure what the point of that was, given that Britain hasn’t traditionally had a constitutional order premised on separation of powers, and Blair didn’t make any big moves to separate out control of legislature and executive. I wonder if they’d just been imbibing a lot of legal theory written from a US perspective and thought it was a bit odd, compared to America, that what was effectively our supreme court in all but name was composed of a committee of legislators who sat in our upper house. In practices the judges avoided the political side of being a legislator, very rarely voted on legislation (and if they did, then had to sit out any cases decided on it) and their right to speak in Parliament was powerful partly because it was for emergency use only. Must all have looked a bit weird to outsiders but it did seem to work. Lady Hale made a rather well-argued speech that it was a good thing, and overdue, the Supreme Court split off from the House of Lords, but I can’t say the pragmatist in me found it wholly convincing. https://www.supremecourt.uk/docs/speech-181114.pdf
Kevin B
Schumer’s already threatened to add two new justices to the court if the Dems win the presidency and senate so McConnell should counter with a promise to add a new justice every week – or make that every day – till the change over if the dems win.
Then, in the last week of the Trump presidency the Senate should restore the 60 – 40 rule for judicial appointments and everything else.
I mean, if a constitutional crisis is baked in for 2021 whatever the results, might as well make it a good one.
Pcar
BBC World Service incandescent with rage last night, not about her death, but that Trump might appoint another [shriek] Conservative to supreme court
and so the wailing and gnashing continued on msm all day, not about death, but a Conservative replacing her
imo Ginsburg has looked dead for years, a real life Davros & Dalek thing
@Steve
Problem is conservatives are good at impartiality & fairness
Left are blinded by ideology
Oz of course has the High Court which has a somewhat similar position to the Supreme Court. I first noticed it when a constitutional amendment went through giving the Commonwealth rather than the states the power to make special laws for aborigines. They immediately ruled that this meant the abos owned all land not specifically held by some person. As you’ve guessed, I’ve voted no on all amendments ever since.
Another amusing rule was that petrol taxes must be the same throughout Oz. Otherwise they constitute interference with interstate trade, which is banned by the constitution. Oddly enough, they haven’t pounced with frothing mouth on the border lockdowns against covid, but of course they’re a Labor thing.
The latest fuss is the interpretation that if anyone can claim foreign citizenship, they’re potential traitors and thus cannot be elected to parliament. This was started by Labor, so of course it went through. Naturally the Libs countered by detecting all the traitors in the Labor ranks.
I really feel that ScMo needs to copy the American system and make sure all appointments to the court are checked for political reliability before they’re made. It’ll certainly be entertaining to see who they’ve raped.
Mr Ecks
Dimness with smug assurance: You couldn’t clean your own arse if you could afford toilet paper. I don’t have adequate knowledge of American election systems so I accepted yr bizarre “there’s 2 from each party” cockrot–although you provided no mechanism by which corrupt after-election mystery boxes could be defeated bcos of there being two official from each party somehow involved.
The Sinema creature was elected by Demorat fiddling
But since–as pointed out above–the Demorats have 800 election-stealing lawyers on the strength –an act of massively expensive charity if they have NO chance as Dimness asserts–THEY think they have a chance of stealing the Election. I hope such an attempt will bring American guns onto the streets to stop them if need be. But I see nothing in yr ramblings that stops the Demorat attempt.
Orig Post: “If there is nothing going on LOTS of people are also concerned. Maybe they should all read your smug lectures about how the world works. Another quote:
“5. Zuckerberg has the exact opposite definition of normal than the rest of us. Every election is determined that day. So that is normal by definition. He is trying to claim that taking weeks to determine the winner is normal. Yet that has never happened before. But he does use the word “Consensus” exactly right. An imposed decision by the minority on the majority and all objections will be demonized as ‘hate speech’.
Zuckerberg: “what we and the other media need to start doing is preparing the american people that there is nothing illegitimate about this election taking additional days or weeks to make sure all the votes are counted.” pic.twitter.com/lGdnWMUzgm
— Zach Vorhies (@Perpetualmaniac) September 7, 2020″
A lot of people seem to think the election steal is something that the Demorats could pull off. You say they can’t but offered nothing as to why the plan–as delineated above–ie lotsa boxes of Demorat votes in marginals appear over next few weeks post election and lawdogs get the final result into the willing hands of assorted Demorat Beaks– CANT work.
Because in truth you got nothing. It could work. If it can’t pick a state and tell us WHY it can’t. I agree I know little about US elect rules etc–but it seemed to nearly work in 2000. And that was without the anti-Trump loons that now exist.”
Dimness Reply: “Dennis, Showing Off My Scots-German Temperment September 8, 2020 at 5:37 pm (As with all your intros=”What a smug cunt am I”)
It could work. If it can’t pick a state and tell us WHY it can’t.
OK. Ohio. From the Secretary of State’s website:
“Each of Ohio’s 88 counties has a Board of Elections (BOE) office that is responsible for administering local elections. A four-person board governs each BOE; with two members from each major political party. All petitions for local, legislative, and congressional district offices are filed at Boards of Elections as well as petitions for local issues and options. Campaign finance reports for local candidates, political parties, and political action committees are also filed at BOEs.”
Got that, Ecksie? Each county Board of Elections has an equal number of Democrats and Republicans. All 88 of them. Think through the implications of that real slow and the obvious just might make its way through that foot-thick skull of yours.
Any other questions?
I agree I know little about US elect rules etc…
Then why do you persist in raving about how the U.S. election is going to be stolen? Wouldn’t a bit of knowledge in the area, you know, be a Good Thing? Especially when you’re pushing the sort of shit you’re pushing?”
“Mr Ecks September 8, 2020 at 5:51 pm
I asked –you answered. Ok.
Lets hope you are right.”
I let you off far too lightly because I’m sick of your oily bullshit spray. So this time lets have that again:
“Each of Ohio’s 88 counties has a Board of Elections (BOE) office that is responsible for administering local elections. A four-person board governs each BOE; with two members from each major political party. All petitions for local, legislative, and congressional district offices are filed at Boards of Elections as well as petitions for local issues and options. Campaign finance reports for local candidates, political parties, and political action committees are also filed at BOEs.”
Got that, Ecksie? Each county Board of Elections has an equal number of Democrats and Republicans. All 88 of them. Think through the implications of that real slow and the obvious just might make its way through that foot-thick skull of yours.”
OK Fuck-bag–what does ANY of that cockrot have to do with the Demorats using the courts to overturn an obvious Trump victory? How does 2 turds from each Party halt the lawyers –once again exactly.
Answer it doesn’t and you are still just a voicebox with a planet-sized ego attached.
So Much For Subtlety
MyBurningEars September 19, 2020 at 11:00 pm – “The UK Supreme Court has copied its name from the US version, but it’s very different. Much less emphasis on constitutional law for one thing, far more on addressing unclear areas of law.”
That is not what we saw with Brexit. Where the Supreme Court ran rough shod over the pre-existing constitution. Or making shit up as they went as I would put it.
“I think the coming of the Supreme Court was more a constitutional tidying-up exercise than anything else, moving a bit further away from “fusion” of powers and more towards “separation”. Though I’m not sure what the point of that was, given that Britain hasn’t traditionally had a constitutional order premised on separation of powers”
So … by “tidying up” you mean the radical imposition of an alien European view of the separation of powers in place of the British legal tradition that had reign unchecked up to then? That is a little more than tidying up. It was a radical shift away from the Common Law system.
“Lady Hale made a rather well-argued speech that it was a good thing, and overdue”
Of course she did. Because it gave her enormous power. As we saw with Brexit. If you create a division between the Courts and the Parliament, you set up an inevitable conflict. So naturally we need to check judges for their politics.
The UK Supreme Court is a recent invention, but probably a necessary one since how can a body such as Parliament adjudicate effectively and impartially on itself?
The problem then becomes one of both restraint and impartiality. When the UK Supreme Court intervenes in the purely political (as they did over the Prorogation of Parliament last year) then they crossed the line from adjudication to intervention.
You cannot have a situation where Parliament is both sovereign and subject to the UK Supreme Court. It simply does not work, the only way of resolving this is to explicitly address the problem, either by restraining the UK Supreme Court to the boundaries which were traditionally observed by the Law Lords or by Parliament itself giving ground and essentially saying that it is sovereign only in most respects, but not all.
You can’t have both.
TomJ
@John Galt: At the risk of being pendantic, Parliament is sovereign, Government is subject to the Courts. Had Parliament voted for the prorogation then your point would be well made. The legal niceties come from whether the PM’s advice to Her Majesty (who is, of course, sovereign) to prorogue was lawful…
MyBurningEars
@SMFS
I didn’t say the Supreme Court never hears constitutional cases. Obviously big constitutional cases will go there, as happened with Brexit. But it isn’t the day-to-day diet of the Supreme Court. Most of what it does is rather tedious and has nothing to do with constitutional law. Are they taking on more constitutional cases compared to when they were the Law Lords? Lady Hale thinks so, but that’s partly because there’s been so much constitutional shake-up in the last two decades (of which the creation of the Supreme Court is itself an example) and the constitutional snow-globe hasn’t settled down yet. The same cases would have gone to the Law Lords had the Supreme Court not been hived off, so taking such cases does not make the Supreme Court a Blairite British version of the Bundesverfassungsgericht or Conseil constitutionnel.
I think it’s overstating it to talk of a “radical imposition of an alien European view of the separation of powers in place of the British legal tradition that had reign unchecked up to then”. The doctrine of separation of powers, and particularly the idea of an independent judiciary, isn’t alien or novel to British political philosophy. There were various experiments along those lines during the time of the Commonwealth (obviously that period’s something of a historical aberration, my point is that the ideas behind it can’t be seen as completely foreign, and the Yanks drew a lot from the history of the Commonwealth experience – not just European theoretical political philosophy – when setting their own constitutional arrangements) but you can also see the trend in the way the Lord Laws developed, over the 19th century in particular. Most notably, the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task. That change was far more radical than the largely theoretical (since they ended up so rarely making use of the rights that came with it) question of whether those judges should be sitting members of the Lords. And the Supreme Court of Judicature Act 1873 abolished the judicial function of the Lords entirely, with respect to England and Wales – though those provisions never came into force due to a change of government.
So it isn’t like Blair did something so radical it had never been dreamt of before, or had only been thought of in the EU era. But for an accident of history, this could all have happened over a hundred years earlier. Similarly, the change does not strike me as a decisive move away from common law. As you say, the judges still seemed to have no problem making stuff up as they went along to fill in what they perceived as legal gaps, and that’s very much in the tradition of common law. How many other common law countries have members of their own legislature sitting as judges? That feature does not seem defining to me. Moreover, before the 19th century reforms, the quality of judges in the Lords was not high – we’re talking back in the days of hereditary peers here, so pot luck who you got. (I know you’re quite reactionary but I’m not sure you’d seriously propose us shifting to a system of hereditary judges?) When people quote centuries-old precedent in common law, they very rarely are harking back to Olde Style, Pre-Law Lords, House of Lords decisions. What’s the last such case you heard cited as precedent for anything? Far more likely to hear pre-1800 citations of the professional judges who sat the lower courts. So I’m not sure why you see judges being members of the upper house as something fundamental to the system of common law. Particularly since the House of Lords was also the top of the judicial pyramid for the civil law in Scotland (post Act of Union) and, while it served as a system running in parallel to common law, equity in England (post Restoration anyway, when they acquired this right). Was an appellate process that ran all the way to parliament a defining feature of Scottish civil law, or just the historical judicial arrangement we ended up with to replace the monarch deciding cases him/herself, an era we are most unlikely to want to return to?
“If you create a division between the Courts and the Parliament, you set up an inevitable conflict.” – this argument would have made more sense if the judges had ruled against parliamentary power. As it is, they effectively sided with parliamentary power against executive power over both prorogation in Miller II, and use of royal prerogative to nullify rights enacted by Parliament in primary legislation in Miller I. So I don’t see that there has necessarily been increased conflict between legislature and judiciary by dint of moving the top judges out of the upper house. And frankly I can’t see that Lady Hale or any of the other judges would have issued a different ruling in the Brexit cases whether they were serving as old-fashioned Law Lords or on the Supreme Court. If there’d been a dissenting opinion by the Lord Chancellor (for the Americans: that’s a government minister, who until a few decades ago had the right to sit as a judge in these kind of cases) what difference would that have made? The Law Lords frequently ruled against the executive back in the day, and that conflict between an executive body trying to “get things done” and a judiciary who want to restrain them to get things done only in accordance with the law would exist independently of whether judges had a seat in parliament.
I’m also dubious that a conservative-minded judge (as opposed to Conservative in the partisan sense) would have been a great fan of prorogation, or prerogative powers used to abolish rights granted in primary legislation, just because it suited BoJo and the Brexiteer cause at the time. Purely in terms of “what could a future government do with this power?” those are the kinds of thing a conservative-minded judge might have been very keen to stick some limits on. So while the Supreme Court’s judgements had political implications, I think it would be wrong to see them as political or especially partisan decisions. But if Parliament had passed an Act, the judges (of whatever stripe or mindset and wherever they might sit) may try to radically reinterpret it, but unlike America they’re not going to throw the Act out. Incidentally, this idea of parliamentary sovereignty does not seem to be an age-old, ne’er-disputed aspect of either the English/British constitution nor the common law itself. See https://en.wikipedia.org/wiki/Dr._Bonham%27s_Case for example.
So Much For Subtlety
MyBurningEars September 20, 2020 at 11:56 am – “Most of what it does is rather tedious and has nothing to do with constitutional law.”
Much the same is true of the US Supreme Court – and the British one is young. It has just started feeling its oats.
“and the constitutional snow-globe hasn’t settled down yet.”
That is an interesting analogy. I would say that a massive spanner has been thrown into the works and the cogs have not seized up just yet.
“The same cases would have gone to the Law Lords had the Supreme Court not been hived off, so taking such cases does not make the Supreme Court a Blairite British version of the Bundesverfassungsgericht or Conseil constitutionnel.”
Yet. In both France and Germany, but especially France, the courts gradually grabbed more and more power for themselves that they were not intended to have, were not given and in fact in many cases were specifically forbidden from exercising.
“The doctrine of separation of powers, and particularly the idea of an independent judiciary, isn’t alien or novel to British political philosophy.”
Two very different things there. You do not need to be separate to be independent.
“and the Yanks drew a lot from the history of the Commonwealth experience – not just European theoretical political philosophy”
Not “just” but “mostly”. It comes to the US from a specific French misreading of the British constitution. And even then the power of the court, the separation of powers in a true sense, is not the work of the constitution but of the court seizing power not intended for it.
“the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task.”
That is a remarkable interpretation of events.
“So it isn’t like Blair did something so radical it had never been dreamt of before, or had only been thought of in the EU era.”
In Europe, sure. But still alien to the British tradition.
“But for an accident of history, this could all have happened over a hundred years earlier.”
Could have. And Britain could have ended up like Zimbabwe. It didn’t. There is a massive difference between those who see our institutions as fragile and contingent and those who think we can play with human lives as we see fit and it won’t matter. We can turn the aquarium into bouillabaisse easily enough, turning it back is harder.
“As you say, the judges still seemed to have no problem making stuff up as they went along to fill in what they perceived as legal gaps, and that’s very much in the tradition of common law.”
There is a difference between modest extensions of the law by judges and Cadi law where the judge makes it up as he goes. Which is where we are.
“(I know you’re quite reactionary but I’m not sure you’d seriously propose us shifting to a system of hereditary judges?)”
Yes I would. Well a system of judges who are hereditary. Not that I would want Laqdt Hale’s grandchildren sitting in 100 years.
“What’s the last such case you heard cited as precedent for anything?”
Lady Hale’s Brexit decision?
“this argument would have made more sense if the judges had ruled against parliamentary power. As it is, they effectively sided with parliamentary power against executive power over both prorogation in Miller II, and use of royal prerogative to nullify rights enacted by Parliament in primary legislation in Miller I.”
No. They said that they acted to defend Parliament but they did not. Before Hale Parliament had the right to dissolve itself. Now they need the permission of the Supreme Court. They ruled against the power of the Parliament and lied about it.
“And frankly I can’t see that Lady Hale or any of the other judges would have issued a different ruling in the Brexit cases whether they were serving as old-fashioned Law Lords or on the Supreme Court.”
Nor do I. Lady Hale should never have been appointed for that reason.
“I’m also dubious that a conservative-minded judge (as opposed to Conservative in the partisan sense) would have been a great fan of prorogation, or prerogative powers used to abolish rights granted in primary legislation, just because it suited BoJo and the Brexiteer cause at the time.”
By definition a conservative thinks that the law should not be changed on the fly to suit Lady Hale’s Brexit prejudices and that Boris should be entitled to the same rules and powers as every othe3r Prime Minister had since WW2. No conservative could be happy with taking powers from the Queen and giving them to some idiotic court. You clearly do not understand what it is to be conservative.
“Purely in terms of “what could a future government do with this power?” those are the kinds of thing a conservative-minded judge might have been very keen to stick some limits on.”
Why?
“So while the Supreme Court’s judgements had political implications, I think it would be wrong to see them as political or especially partisan decisions.”
That is a remarkable point of view. From another planet but remarkable. No one had any problems with the PM’s right to give the Queen whatever damn advice he liked before. But because of Brexit the Court insisted it had a right to sit in judgement on that advice. It was entirely partisan.
It was so partisan I will make a prediction that things will go back to normal and this rule will never be enforced against another PM.
“But if Parliament had passed an Act, the judges (of whatever stripe or mindset and wherever they might sit) may try to radically reinterpret it, but unlike America they’re not going to throw the Act out.”
They have repeatedly used EU law to do just that so there is no reason to think they will stop.
Good to see Ecks now has a new ‘they’re gonna steal the election’ scenario to rave about.
Ecks is also the same guy who engages in spittle-flecked name calling to Americans who talk about British politics but has no problem sticking his nose into American politics. An utterly revolting hypocrite.
On which occasions have I cursed Americans interfering in UK politics?
If you come on peddling remain or some variation of Marxism then quite possibly I would have told you to fuck off. Or if you have arrived to express what a superior fellow you are to all the wogs –the unremitting posture of Dim Dennis.
You should Ted indeed fuck off as a general principle as you are –like Dennis–a cunt with a giant ego. You are less verbose than Dis-ease possibly due to a lesser brain capacity and that is a small mercy. Indeed whereas Dennis can fire two 20 round pistols down his pants and still miss his dick you could fire two such pistols up yr nostrils and miss what passes for your brain.
Now I want Trump to win the US election. Unless you are a bigger twat than yr goateed mugshot makes you appear I imagine that is true of both you and Dennis as well. So how is my expressing concern that a bad result might arise via Demorat cheating “interfering” in American politics. Muh Ecks perhaps as in Muh Russia.
Nor is my attitude isolated on the blog. Judging from the RBG thread above it seems a great many commenters expect/fear just some such lawdog election-stealing. They are trying to interfere in American politics Ted? Or are you a Catskill Witch who thinks that mere verbalisations can alter reality?
Nice to hear from you after all this time.
djc
Whatever the separation of power, of checks and balances, people will push up against it and given time and circumstance there will come an opportunity to prevail. To retain the balance requires some unspoken restraint, an acceptance that in the long run to win now is a set up to lose later.
An early training in the law leads to various career paths: make a fortune from practice, become a legislator and have power, join the judiciary and gain respect. As important as the separation of powers is the separation of career paths; wealth, power, respect, choose one, once.
Jim
“Indeed whereas Dennis can fire two 20 round pistols down his pants and still miss his dick you could fire two such pistols up your nostrils and miss what passes for your brain.”
I don’t have a dog in this fight, but that did made me laugh………
MyBurningEars
@SMFS
Two very different things there. You do not need to be separate to be independent.
Not synonymous but clearly related. The traditional concept of a Lord Chancellor who simultaneously sat as a judge in the top appeal court, served as a government minister, and sat as a legislator, was a good example of old-style “fusion” instead of separation that would no doubt horrify American readers, but also an idea that had become increasingly unfashionable due to doubts over whether the Lord Chancellor could truly be judicially independent.
“the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task.”
That is a remarkable interpretation of events.
Good grief, you’re usually good at arcane bits of British constitutional history. No, this is absolutely the transition that happened. Going back earlier in time, you could appeal all the way up to the monarch. Then we ended up with Parliament making final appeal decisions on the monarch’s behalf. But they’re primarily legislators, and in the upper house hereditary at that, not professional judges or even lawyers. In the 19th century, the coming of the Law Lords marked a professionalisation of that role, hiving it off to a committee of specialists who were appointed to that task. The whole issue is wrapped up with why we started getting the addition of “life peers” to the hereditaries, who could be appointed to the role but whose descendants would not swell the Lords benches for generations to come. This was the really radical changes in the judicial function of parliament, creating a supreme court in all but name. The fact after the reforms, these top judges still had a seat in the legislature is a matter of historical chance – like I said, the law to abolish the judicial function of the Lords with respect to England and Wales was enacted even as far back as the 1870s, just overturned due to changes in electoral fortunes. The fact we ever went through a Law Lords phase represented a compromise between keeping Parliament as technically our top court versus making sure our top appeals body resembled a professional court, and the relative importance given to the latter versus the former has been building for a long time.
The system of Law Lords was therefore a fairly long-lived but temporary anomaly resulting from half-completed reforms – and while theoretically Parliament remained the top court, in practice it was a court housed within Parliament whose members rarely made much use of the fact they were technically legislators. We can argue about the pros and cons of Blair’s decision to formalise the split – as you can see from what I wrote, I’m not a fan of the move personally – but claiming it to be something radical, unthinkable, contrary to the principles of common law etc, seems very wrong to me. The introduction of Law Lords represented a very drastic deviation from the traditional constitutional position, but brought a lot of advantages in terms of legal experience and depoliticising the role. Blair’s idea of moving them to a court outside Parliament, right or wrong, was something that had been mooted on and off for over 150 years, and even enacted (but not implemented) over 100 years before it finally happened. And since in the latter stages, Law Lords very rarely participated in House of Lords debates, and the judges seem likely to have made pretty much the same decisions whether they’d kept a seat in the Lords or not, its practical effects have been relatively small (though I’d argue regrettable). Miller I and Miller II would have happened without Blair’s reforms.
“When people quote centuries-old precedent in common law, they very rarely are harking back to Olde Style, Pre-Law Lords, House of Lords decisions. What’s the last such case you heard cited as precedent for anything? Far more likely to hear pre-1800 citations of the professional judges who sat the lower courts.”
Lady Hale’s Brexit decision?
Newsflash for you… that was a decision by professional judges that happened later than 1800!! The point I was making is your insistence that having Parliament serve as the top court is somehow a fundamental principle of common law seems off to me. You can argue that it was (at least traditionally) a fundamental part of the British constitution, sure. But common law? There are loads of common law countries whose top court is not formed of sitting legislators. And the long historical tradition of Parliament acting as a court – which dates back many centuries further than the Law Lords, a system that only existed for a bit more than a century – doesn’t seem to have left deep marks in the common law, partly because parliamentary judicial decisions prior to the Law Lords were not the work of professional judges and so tended to be confusing and often political. Pre-1800 case law from the professional judges in the lower courts has arguably had far greater impact on shaping the common law, than parliamentary judicial decisions from that era.
Before Hale Parliament had the right to dissolve itself. Now they need the permission of the Supreme Court. They ruled against the power of the Parliament and lied about it.
Normally you’re hot on constitutional stuff but this is all over the place. You seem to have got mixed up with dissolution and prorogation, and also mixed up on who has the right to do what. Prorogation ends one session of parliament and starts another, that power has always been part of the royal prerogative. Like all prerogative powers, its exercise needs to be lawful, and that was the legal dispute in Miller II. Parliament didn’t “prorogue itself”, the decision was made on the advice of the PM in contentious circumstances, which weren’t identical to previous exercises of the power in the last century. The political situation at the time was such that if Parliament had been given a choice in the matter, prorogation would never have happened, so your contention that somehow the Supreme Court was backing the Executive against the Legislature in that case is utterly bizarre (and had Tony Blair used prorogation in a similar way as a tool to get Britain to join the euro without a referendum, for example, I think you’d realise what I meant about a “conservative” interpretation of the royal prerogative being keen to limit executive power). Dissolving parliament is for elections – MPs stop being MPs etc. Under the Fixed-term Parliament Act, that happens automatically 25 working days before a General Election. If Parliament votes for a GE date, then indeed it sets in train its own automatic dissolution. No Supreme Court judgement required.
johnnybonk
“Ecks is also the same guy who engages in”
At his best he can be a good blogger, though come to think about it, I am not sure he’s made a good post for about 2 years.
So Much For Subtlety
MyBurningEars September 20, 2020 at 3:44 pm – “but also an idea that had become increasingly unfashionable due to doubts over whether the Lord Chancellor could truly be judicially independent.”
Indeed. Because European theory is more important than British practice.
“But they’re primarily legislators, and in the upper house hereditary at that, not professional judges or even lawyers.”
You say that like it is a bad thing. Professionals are mainly concerned with defending their profession. There are very good reasons to be dubious of giving them control.
“This was the really radical changes in the judicial function of parliament, creating a supreme court in all but name.”
Except it wasn’t. If the House of Lords is part of the passing of laws, it is hard for them to then turn around to deny what the intent of the law makers was. If the Supreme Court is separate and not part of the making of laws, they can insist that what the law makers intended does not matter, it is what *they* think it means now that matters. It is an inherently different situation.
“The fact after the reforms, these top judges still had a seat in the legislature is a matter of historical chance”
As with all of the British constitution. And it worked. So we are back to our aquarium of fish again.
“but brought a lot of advantages in terms of legal experience and depoliticising the role.”
Those advantages are a matter of opinion. They are not immediately obvious to me – especially that depoliticising. But in so far as that is true, Lady Hale massively reversed that part of it.
“Blair’s idea of moving them to a court outside Parliament, right or wrong, was something that had been mooted on and off for over 150 years, and even enacted (but not implemented) over 100 years before it finally happened.”
Scottish independence is at least as old. As is Communism. That bad ideas are mooted does not make them good.
“Miller I and Miller II would have happened without Blair’s reforms.”
There is no evidence of that at all. That is just an opinion. One that I would strongly dispute.
“Newsflash for you… that was a decision by professional judges that happened later than 1800!!”
Sure but it was one that cited very old precedent indeed. So it is the last case I can think of that cited pre-Victorian judges.
“The point I was making is your insistence that having Parliament serve as the top court is somehow a fundamental principle of common law seems off to me.”
The Common law can also work with the King as the last court so that is not my point.
“Prorogation ends one session of parliament and starts another, that power has always been part of the royal prerogative. Like all prerogative powers, its exercise needs to be lawful, and that was the legal dispute in Miller II.”
To say that the exercise needs to be lawful is a tautology. Before Hale, the reasons for the prorogation were not justicible. The decision was a matter for Parliament through their representative, the PM, who could give whatever advice he liked to the Crown – even if formally the power rested with the Crown. Lady Hale insisted that it needed her permission. That is not strengthening Parliament. That is weakening their powers. Well, the powers of the Crown to be technical but in effect the Parliament.
“Parliament didn’t “prorogue itself”, the decision was made on the advice of the PM in contentious circumstances, which weren’t identical to previous exercises of the power in the last century.”
They never are. But in effect Parliament did make that decision. They chose the PM. He gave advice. The Crown held the power to do so but always did what the PM asked. No more.
“The political situation at the time was such that if Parliament had been given a choice in the matter, prorogation would never have happened”
The political situation as judged by you and Lady Hale. Boris was the PM, he held the confidence of Parliament in the only way that mattered – he was PM – and so anything else is presumption. Or in this case, Lady Hale not liking Boris’ decision. For purely political reasons.
“so your contention that somehow the Supreme Court was backing the Executive against the Legislature in that case is utterly bizarre”
But that is not my contention is it? As anyone who read what I wrote can see.
Parliament lost an important power (technically held by the Crown) to the Supreme Court. Who has insisted on the right to sit in judgement on private conversations between the PM and the Crown – and second guess the intentions of the parties therein. Worse, you seem to think they are now in the business of second guessing Parliament’s views and making decisions they are too cowardly to make themselves. That is an outrageous violation of the notion of the separation of powers, in so far as it applies in the UK, and is a nett loss of power to Parliament and the Crown. A power grab by the Court.
As I said, it is so outlandish for a Court to pass judgement on private advice from the PM to the Crown that I doubt it will ever be applied again. It was random decision making for political ends. Cadi justice.
Mr Ecks
Johhnybonk–That’s cos most commie trash like Arnold, Dave and –Jesus Christ help me I had to look back for his name–DBC Reed are long gone from the blog and handmaidens of evil like Million Word Missive NiV moved to Samizdata to avoid the brickbats. I felt it needful to fisk his vast deserts of drivel in those days.
Looking back to say early 2016 the quality of blogging and insult was better and several animosities now existing may have been made worse by there being fewer common/commie enemies to battle with now than then.
Also of course life itself these past 2 years has grown very much nastier and the future more bleak. We are living in what were just nightmares 5 years ago and the fact that lots of our fellow humans have had their –then only abstractly known–evil natures revealed as being all too real has not helped positive outlooks. And commenting on blogs increasingly seems to be a pointless timewaste in the face of gathering and growing leftist evil.
Pcar
@SMFS
Very good, easier to read than @MBE meandering discourses
I am now officially old and slow. This is the third time in an hour that I have seen this meme, and only this time do I get it.
Kek. One thing I haven’t seen yet in the lamentations of their transwomen over DRUMF getting another Supreme Court nomination is any acknowledgement that this situation shouldn’t exist.
Shouldn’t matter who’s on the Supreme Court, it should be the most boring and predictable branch of government, merely sifting through facts and applying laws. The existence of “liberal” and “conservative” judges proves the institution has failed. Instead of an honest ref, it’s become an authoritarian centre of political power in its own right.
It’s more hypocritical and less democratic than the Sanhedrin.
If the Dems controlled the Senate, Trump couldn’t nominate a new SC member in time. So, really, they only have themselves to blame.
Nice one.
Something I read said that Trump had a list of something like 40 names, some of which weren’t experienced judges. Senator Ted Cruz was mentioned. You would think that a long career working up the judicial greasy pole would be a better qualification than being a politician. But then, what do I know being a Brit.
@Steve 13:09
Problem is the guys wrote the Constitution never envisaged a political class despises the people of the US
A good candidate might be a woman with slight colour tinge (injun or latino, say), law degree, army officer, war hero.
BiS – same in the UK/EU. The ascendancy of lawyers as the priestly caste of aloof, unaccountable technocracy that rules on the basis of… what? Self-proclaimed expertise?
Problem is the guys wrote the Constitution never envisaged a political class despises the people of the US
I rather think they did; they wrote the Constitution (separation of powers, etc.) assuming that the political class would be malicious, power-grabbing assholes. The arrangements made for the Supreme Court indicate they didn’t take enough care. Contrary to what Steve says, the Supreme Court should be politicised – because it was inevitable that it would be. You’re talking about a body that has the final say on whether laws and executive actions are permissible; the final say on whether an election is valid. What the fuck do you think is going to happen with that level of power? Expecting an honest referee there is like expecting socialism to work; an expectation that humans won’t be humans.
LooooooL
Salty Cracker has the latest.
https://youtu.be/6k9GdwnbcYo
Being a career judge is great if you want someone who knows procedure. But procedure is far more important in the lower courts than in the SCOTUS and it certainly doesn’t guarantee that they’re good *judges* – just that they know how to dot i’s and cross t’s.
That would be hard to imagine for a group of people who had just recently broken away from their previous government specifically because the political class despised the people.
OMG – he should appoint Kamala Harris. You can’t say she doesn’t have the qualifications on paper, she’s a she, and she’s a biracial POC. Take the wind right out of the Harris-Biden campaign’s sails.
So with Ginsberg gone what could happen is that if Roberts sides with the 3 liberal pukes that = SC tied–and so the court next level below will decide the Election. Still sounds to me that the Dems have a chance of stealing away the result.
Steve,
“Shouldn’t matter who’s on the Supreme Court, it should be the most boring and predictable branch of government, merely sifting through facts and applying laws. The existence of “liberal” and “conservative” judges proves the institution has failed. Instead of an honest ref, it’s become an authoritarian centre of political power in its own right.”
Because once you give a court power over government, with judges who can’t get fired, that power is going to get abused. You’re relying on people being good, rather than having a system that addresses when they aren’t.
“once you give a court power over government, with judges who can’t get fired, that power is going to get abused.”
Was that Toni Blair’s calculation, do you think?
@Agammamon
“That would be hard to imagine for a group of people who had just recently broken away from their previous government specifically because the political class despised the people.”
Never is though is it? The revolutionaries never think they’ll one day be the government the people want to rebel against.
The separation of powers is mentioned above. That works when the people holding the separated powers have opposing interests. What happens when they all have the same interests?
Good to see Ecks now has a new ‘they’re gonna steal the election’ scenario to rave about. It’s just as stupid as the other scenario I cleaned his clock about, but being stupid has never stopped him before, has it?
Why do loonies always have so much energy?
Dennis of Multiple Personalities, we don’t know the future. Things are happening:
https://www.breitbart.com/2020-election/2020/09/18/mark-levin-pennsylvania-michigan-legislatures-must-undo-courts-election-decisions/
‘Levin was reacting to rulings Thursday by the Pennsylvania Supreme Court that allowed mail-in ballots received up to three days after Election Day to be counted — even if they had no evidence of being postmarked by Election Day. Pennsylvania Secretary of State Kathy Boockvar (D) also issued a directive preventing county election officials from comparing signatures on mail-in ballots to signatures on the voter rolls.’
Attempts to screw the election are real. Mr Ecks is correct, “the Dems have a chance of stealing away the result.” We may look back in December and see they really never had a chance, but we don’t know that now.
dearieme,
“Was that Toni Blair’s calculation, do you think?”
Quite possibly, but we don’t have a formal constitutional system that sits above elected government like the USA. The supreme court in Westminster can be binned by a government, with at most, an act of parliament.
Not sure I follow dearieme’s point actually. Might be helpful if he could explain.
The UK Supreme Court has copied its name from the US version, but it’s very different. Much less emphasis on constitutional law for one thing, far more on addressing unclear areas of law. And as bom4 says, the UK is very different to the USA constitutionally. Parliament is both sovereign and cannot bind its successors, and is often pretty tightly under the control of the same government that runs the executive, so there’s much less fuss about legislature-versus-executive battles, or Acts of Parliament that are unconstitutional. (Though devolution has raised more issues about whether devolved legislatures and executives are acting within their constitutional remit.)
I think the coming of the Supreme Court was more a constitutional tidying-up exercise than anything else, moving a bit further away from “fusion” of powers and more towards “separation”. Though I’m not sure what the point of that was, given that Britain hasn’t traditionally had a constitutional order premised on separation of powers, and Blair didn’t make any big moves to separate out control of legislature and executive. I wonder if they’d just been imbibing a lot of legal theory written from a US perspective and thought it was a bit odd, compared to America, that what was effectively our supreme court in all but name was composed of a committee of legislators who sat in our upper house. In practices the judges avoided the political side of being a legislator, very rarely voted on legislation (and if they did, then had to sit out any cases decided on it) and their right to speak in Parliament was powerful partly because it was for emergency use only. Must all have looked a bit weird to outsiders but it did seem to work. Lady Hale made a rather well-argued speech that it was a good thing, and overdue, the Supreme Court split off from the House of Lords, but I can’t say the pragmatist in me found it wholly convincing. https://www.supremecourt.uk/docs/speech-181114.pdf
Schumer’s already threatened to add two new justices to the court if the Dems win the presidency and senate so McConnell should counter with a promise to add a new justice every week – or make that every day – till the change over if the dems win.
Then, in the last week of the Trump presidency the Senate should restore the 60 – 40 rule for judicial appointments and everything else.
I mean, if a constitutional crisis is baked in for 2021 whatever the results, might as well make it a good one.
BBC World Service incandescent with rage last night, not about her death, but that Trump might appoint another [shriek] Conservative to supreme court
and so the wailing and gnashing continued on msm all day, not about death, but a Conservative replacing her
imo Ginsburg has looked dead for years, a real life Davros & Dalek thing
@Steve
Problem is conservatives are good at impartiality & fairness
Left are blinded by ideology
Good, if verbose, here:
Tom Utley: I agree with my favourite transvestite Grayson Perry – the Right are much nicer than Lefties
Oz of course has the High Court which has a somewhat similar position to the Supreme Court. I first noticed it when a constitutional amendment went through giving the Commonwealth rather than the states the power to make special laws for aborigines. They immediately ruled that this meant the abos owned all land not specifically held by some person. As you’ve guessed, I’ve voted no on all amendments ever since.
Another amusing rule was that petrol taxes must be the same throughout Oz. Otherwise they constitute interference with interstate trade, which is banned by the constitution. Oddly enough, they haven’t pounced with frothing mouth on the border lockdowns against covid, but of course they’re a Labor thing.
The latest fuss is the interpretation that if anyone can claim foreign citizenship, they’re potential traitors and thus cannot be elected to parliament. This was started by Labor, so of course it went through. Naturally the Libs countered by detecting all the traitors in the Labor ranks.
I really feel that ScMo needs to copy the American system and make sure all appointments to the court are checked for political reliability before they’re made. It’ll certainly be entertaining to see who they’ve raped.
Dimness with smug assurance: You couldn’t clean your own arse if you could afford toilet paper. I don’t have adequate knowledge of American election systems so I accepted yr bizarre “there’s 2 from each party” cockrot–although you provided no mechanism by which corrupt after-election mystery boxes could be defeated bcos of there being two official from each party somehow involved.
The Sinema creature was elected by Demorat fiddling
But since–as pointed out above–the Demorats have 800 election-stealing lawyers on the strength –an act of massively expensive charity if they have NO chance as Dimness asserts–THEY think they have a chance of stealing the Election. I hope such an attempt will bring American guns onto the streets to stop them if need be. But I see nothing in yr ramblings that stops the Demorat attempt.
Orig Post: “If there is nothing going on LOTS of people are also concerned. Maybe they should all read your smug lectures about how the world works. Another quote:
“5. Zuckerberg has the exact opposite definition of normal than the rest of us. Every election is determined that day. So that is normal by definition. He is trying to claim that taking weeks to determine the winner is normal. Yet that has never happened before. But he does use the word “Consensus” exactly right. An imposed decision by the minority on the majority and all objections will be demonized as ‘hate speech’.
Zuckerberg: “what we and the other media need to start doing is preparing the american people that there is nothing illegitimate about this election taking additional days or weeks to make sure all the votes are counted.” pic.twitter.com/lGdnWMUzgm
— Zach Vorhies (@Perpetualmaniac) September 7, 2020″
A lot of people seem to think the election steal is something that the Demorats could pull off. You say they can’t but offered nothing as to why the plan–as delineated above–ie lotsa boxes of Demorat votes in marginals appear over next few weeks post election and lawdogs get the final result into the willing hands of assorted Demorat Beaks– CANT work.
Because in truth you got nothing. It could work. If it can’t pick a state and tell us WHY it can’t. I agree I know little about US elect rules etc–but it seemed to nearly work in 2000. And that was without the anti-Trump loons that now exist.”
Dimness Reply: “Dennis, Showing Off My Scots-German Temperment September 8, 2020 at 5:37 pm (As with all your intros=”What a smug cunt am I”)
It could work. If it can’t pick a state and tell us WHY it can’t.
OK. Ohio. From the Secretary of State’s website:
“Each of Ohio’s 88 counties has a Board of Elections (BOE) office that is responsible for administering local elections. A four-person board governs each BOE; with two members from each major political party. All petitions for local, legislative, and congressional district offices are filed at Boards of Elections as well as petitions for local issues and options. Campaign finance reports for local candidates, political parties, and political action committees are also filed at BOEs.”
Got that, Ecksie? Each county Board of Elections has an equal number of Democrats and Republicans. All 88 of them. Think through the implications of that real slow and the obvious just might make its way through that foot-thick skull of yours.
Any other questions?
I agree I know little about US elect rules etc…
Then why do you persist in raving about how the U.S. election is going to be stolen? Wouldn’t a bit of knowledge in the area, you know, be a Good Thing? Especially when you’re pushing the sort of shit you’re pushing?”
“Mr Ecks September 8, 2020 at 5:51 pm
I asked –you answered. Ok.
Lets hope you are right.”
I let you off far too lightly because I’m sick of your oily bullshit spray. So this time lets have that again:
“Each of Ohio’s 88 counties has a Board of Elections (BOE) office that is responsible for administering local elections. A four-person board governs each BOE; with two members from each major political party. All petitions for local, legislative, and congressional district offices are filed at Boards of Elections as well as petitions for local issues and options. Campaign finance reports for local candidates, political parties, and political action committees are also filed at BOEs.”
Got that, Ecksie? Each county Board of Elections has an equal number of Democrats and Republicans. All 88 of them. Think through the implications of that real slow and the obvious just might make its way through that foot-thick skull of yours.”
OK Fuck-bag–what does ANY of that cockrot have to do with the Demorats using the courts to overturn an obvious Trump victory? How does 2 turds from each Party halt the lawyers –once again exactly.
Answer it doesn’t and you are still just a voicebox with a planet-sized ego attached.
MyBurningEars September 19, 2020 at 11:00 pm – “The UK Supreme Court has copied its name from the US version, but it’s very different. Much less emphasis on constitutional law for one thing, far more on addressing unclear areas of law.”
That is not what we saw with Brexit. Where the Supreme Court ran rough shod over the pre-existing constitution. Or making shit up as they went as I would put it.
“I think the coming of the Supreme Court was more a constitutional tidying-up exercise than anything else, moving a bit further away from “fusion” of powers and more towards “separation”. Though I’m not sure what the point of that was, given that Britain hasn’t traditionally had a constitutional order premised on separation of powers”
So … by “tidying up” you mean the radical imposition of an alien European view of the separation of powers in place of the British legal tradition that had reign unchecked up to then? That is a little more than tidying up. It was a radical shift away from the Common Law system.
“Lady Hale made a rather well-argued speech that it was a good thing, and overdue”
Of course she did. Because it gave her enormous power. As we saw with Brexit. If you create a division between the Courts and the Parliament, you set up an inevitable conflict. So naturally we need to check judges for their politics.
The UK Supreme Court is a recent invention, but probably a necessary one since how can a body such as Parliament adjudicate effectively and impartially on itself?
The problem then becomes one of both restraint and impartiality. When the UK Supreme Court intervenes in the purely political (as they did over the Prorogation of Parliament last year) then they crossed the line from adjudication to intervention.
You cannot have a situation where Parliament is both sovereign and subject to the UK Supreme Court. It simply does not work, the only way of resolving this is to explicitly address the problem, either by restraining the UK Supreme Court to the boundaries which were traditionally observed by the Law Lords or by Parliament itself giving ground and essentially saying that it is sovereign only in most respects, but not all.
You can’t have both.
@John Galt: At the risk of being pendantic, Parliament is sovereign, Government is subject to the Courts. Had Parliament voted for the prorogation then your point would be well made. The legal niceties come from whether the PM’s advice to Her Majesty (who is, of course, sovereign) to prorogue was lawful…
@SMFS
I didn’t say the Supreme Court never hears constitutional cases. Obviously big constitutional cases will go there, as happened with Brexit. But it isn’t the day-to-day diet of the Supreme Court. Most of what it does is rather tedious and has nothing to do with constitutional law. Are they taking on more constitutional cases compared to when they were the Law Lords? Lady Hale thinks so, but that’s partly because there’s been so much constitutional shake-up in the last two decades (of which the creation of the Supreme Court is itself an example) and the constitutional snow-globe hasn’t settled down yet. The same cases would have gone to the Law Lords had the Supreme Court not been hived off, so taking such cases does not make the Supreme Court a Blairite British version of the Bundesverfassungsgericht or Conseil constitutionnel.
I think it’s overstating it to talk of a “radical imposition of an alien European view of the separation of powers in place of the British legal tradition that had reign unchecked up to then”. The doctrine of separation of powers, and particularly the idea of an independent judiciary, isn’t alien or novel to British political philosophy. There were various experiments along those lines during the time of the Commonwealth (obviously that period’s something of a historical aberration, my point is that the ideas behind it can’t be seen as completely foreign, and the Yanks drew a lot from the history of the Commonwealth experience – not just European theoretical political philosophy – when setting their own constitutional arrangements) but you can also see the trend in the way the Lord Laws developed, over the 19th century in particular. Most notably, the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task. That change was far more radical than the largely theoretical (since they ended up so rarely making use of the rights that came with it) question of whether those judges should be sitting members of the Lords. And the Supreme Court of Judicature Act 1873 abolished the judicial function of the Lords entirely, with respect to England and Wales – though those provisions never came into force due to a change of government.
So it isn’t like Blair did something so radical it had never been dreamt of before, or had only been thought of in the EU era. But for an accident of history, this could all have happened over a hundred years earlier. Similarly, the change does not strike me as a decisive move away from common law. As you say, the judges still seemed to have no problem making stuff up as they went along to fill in what they perceived as legal gaps, and that’s very much in the tradition of common law. How many other common law countries have members of their own legislature sitting as judges? That feature does not seem defining to me. Moreover, before the 19th century reforms, the quality of judges in the Lords was not high – we’re talking back in the days of hereditary peers here, so pot luck who you got. (I know you’re quite reactionary but I’m not sure you’d seriously propose us shifting to a system of hereditary judges?) When people quote centuries-old precedent in common law, they very rarely are harking back to Olde Style, Pre-Law Lords, House of Lords decisions. What’s the last such case you heard cited as precedent for anything? Far more likely to hear pre-1800 citations of the professional judges who sat the lower courts. So I’m not sure why you see judges being members of the upper house as something fundamental to the system of common law. Particularly since the House of Lords was also the top of the judicial pyramid for the civil law in Scotland (post Act of Union) and, while it served as a system running in parallel to common law, equity in England (post Restoration anyway, when they acquired this right). Was an appellate process that ran all the way to parliament a defining feature of Scottish civil law, or just the historical judicial arrangement we ended up with to replace the monarch deciding cases him/herself, an era we are most unlikely to want to return to?
“If you create a division between the Courts and the Parliament, you set up an inevitable conflict.” – this argument would have made more sense if the judges had ruled against parliamentary power. As it is, they effectively sided with parliamentary power against executive power over both prorogation in Miller II, and use of royal prerogative to nullify rights enacted by Parliament in primary legislation in Miller I. So I don’t see that there has necessarily been increased conflict between legislature and judiciary by dint of moving the top judges out of the upper house. And frankly I can’t see that Lady Hale or any of the other judges would have issued a different ruling in the Brexit cases whether they were serving as old-fashioned Law Lords or on the Supreme Court. If there’d been a dissenting opinion by the Lord Chancellor (for the Americans: that’s a government minister, who until a few decades ago had the right to sit as a judge in these kind of cases) what difference would that have made? The Law Lords frequently ruled against the executive back in the day, and that conflict between an executive body trying to “get things done” and a judiciary who want to restrain them to get things done only in accordance with the law would exist independently of whether judges had a seat in parliament.
I’m also dubious that a conservative-minded judge (as opposed to Conservative in the partisan sense) would have been a great fan of prorogation, or prerogative powers used to abolish rights granted in primary legislation, just because it suited BoJo and the Brexiteer cause at the time. Purely in terms of “what could a future government do with this power?” those are the kinds of thing a conservative-minded judge might have been very keen to stick some limits on. So while the Supreme Court’s judgements had political implications, I think it would be wrong to see them as political or especially partisan decisions. But if Parliament had passed an Act, the judges (of whatever stripe or mindset and wherever they might sit) may try to radically reinterpret it, but unlike America they’re not going to throw the Act out. Incidentally, this idea of parliamentary sovereignty does not seem to be an age-old, ne’er-disputed aspect of either the English/British constitution nor the common law itself. See https://en.wikipedia.org/wiki/Dr._Bonham%27s_Case for example.
MyBurningEars September 20, 2020 at 11:56 am – “Most of what it does is rather tedious and has nothing to do with constitutional law.”
Much the same is true of the US Supreme Court – and the British one is young. It has just started feeling its oats.
“and the constitutional snow-globe hasn’t settled down yet.”
That is an interesting analogy. I would say that a massive spanner has been thrown into the works and the cogs have not seized up just yet.
“The same cases would have gone to the Law Lords had the Supreme Court not been hived off, so taking such cases does not make the Supreme Court a Blairite British version of the Bundesverfassungsgericht or Conseil constitutionnel.”
Yet. In both France and Germany, but especially France, the courts gradually grabbed more and more power for themselves that they were not intended to have, were not given and in fact in many cases were specifically forbidden from exercising.
“The doctrine of separation of powers, and particularly the idea of an independent judiciary, isn’t alien or novel to British political philosophy.”
Two very different things there. You do not need to be separate to be independent.
“and the Yanks drew a lot from the history of the Commonwealth experience – not just European theoretical political philosophy”
Not “just” but “mostly”. It comes to the US from a specific French misreading of the British constitution. And even then the power of the court, the separation of powers in a true sense, is not the work of the constitution but of the court seizing power not intended for it.
“the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task.”
That is a remarkable interpretation of events.
“So it isn’t like Blair did something so radical it had never been dreamt of before, or had only been thought of in the EU era.”
In Europe, sure. But still alien to the British tradition.
“But for an accident of history, this could all have happened over a hundred years earlier.”
Could have. And Britain could have ended up like Zimbabwe. It didn’t. There is a massive difference between those who see our institutions as fragile and contingent and those who think we can play with human lives as we see fit and it won’t matter. We can turn the aquarium into bouillabaisse easily enough, turning it back is harder.
“As you say, the judges still seemed to have no problem making stuff up as they went along to fill in what they perceived as legal gaps, and that’s very much in the tradition of common law.”
There is a difference between modest extensions of the law by judges and Cadi law where the judge makes it up as he goes. Which is where we are.
“(I know you’re quite reactionary but I’m not sure you’d seriously propose us shifting to a system of hereditary judges?)”
Yes I would. Well a system of judges who are hereditary. Not that I would want Laqdt Hale’s grandchildren sitting in 100 years.
“What’s the last such case you heard cited as precedent for anything?”
Lady Hale’s Brexit decision?
“this argument would have made more sense if the judges had ruled against parliamentary power. As it is, they effectively sided with parliamentary power against executive power over both prorogation in Miller II, and use of royal prerogative to nullify rights enacted by Parliament in primary legislation in Miller I.”
No. They said that they acted to defend Parliament but they did not. Before Hale Parliament had the right to dissolve itself. Now they need the permission of the Supreme Court. They ruled against the power of the Parliament and lied about it.
“And frankly I can’t see that Lady Hale or any of the other judges would have issued a different ruling in the Brexit cases whether they were serving as old-fashioned Law Lords or on the Supreme Court.”
Nor do I. Lady Hale should never have been appointed for that reason.
“I’m also dubious that a conservative-minded judge (as opposed to Conservative in the partisan sense) would have been a great fan of prorogation, or prerogative powers used to abolish rights granted in primary legislation, just because it suited BoJo and the Brexiteer cause at the time.”
By definition a conservative thinks that the law should not be changed on the fly to suit Lady Hale’s Brexit prejudices and that Boris should be entitled to the same rules and powers as every othe3r Prime Minister had since WW2. No conservative could be happy with taking powers from the Queen and giving them to some idiotic court. You clearly do not understand what it is to be conservative.
“Purely in terms of “what could a future government do with this power?” those are the kinds of thing a conservative-minded judge might have been very keen to stick some limits on.”
Why?
“So while the Supreme Court’s judgements had political implications, I think it would be wrong to see them as political or especially partisan decisions.”
That is a remarkable point of view. From another planet but remarkable. No one had any problems with the PM’s right to give the Queen whatever damn advice he liked before. But because of Brexit the Court insisted it had a right to sit in judgement on that advice. It was entirely partisan.
It was so partisan I will make a prediction that things will go back to normal and this rule will never be enforced against another PM.
“But if Parliament had passed an Act, the judges (of whatever stripe or mindset and wherever they might sit) may try to radically reinterpret it, but unlike America they’re not going to throw the Act out.”
They have repeatedly used EU law to do just that so there is no reason to think they will stop.
Good to see Ecks now has a new ‘they’re gonna steal the election’ scenario to rave about.
Ecks is also the same guy who engages in spittle-flecked name calling to Americans who talk about British politics but has no problem sticking his nose into American politics. An utterly revolting hypocrite.
Maybe. At least he’s seldom dull…
On which occasions have I cursed Americans interfering in UK politics?
If you come on peddling remain or some variation of Marxism then quite possibly I would have told you to fuck off. Or if you have arrived to express what a superior fellow you are to all the wogs –the unremitting posture of Dim Dennis.
You should Ted indeed fuck off as a general principle as you are –like Dennis–a cunt with a giant ego. You are less verbose than Dis-ease possibly due to a lesser brain capacity and that is a small mercy. Indeed whereas Dennis can fire two 20 round pistols down his pants and still miss his dick you could fire two such pistols up yr nostrils and miss what passes for your brain.
Now I want Trump to win the US election. Unless you are a bigger twat than yr goateed mugshot makes you appear I imagine that is true of both you and Dennis as well. So how is my expressing concern that a bad result might arise via Demorat cheating “interfering” in American politics. Muh Ecks perhaps as in Muh Russia.
Nor is my attitude isolated on the blog. Judging from the RBG thread above it seems a great many commenters expect/fear just some such lawdog election-stealing. They are trying to interfere in American politics Ted? Or are you a Catskill Witch who thinks that mere verbalisations can alter reality?
Nice to hear from you after all this time.
Whatever the separation of power, of checks and balances, people will push up against it and given time and circumstance there will come an opportunity to prevail. To retain the balance requires some unspoken restraint, an acceptance that in the long run to win now is a set up to lose later.
An early training in the law leads to various career paths: make a fortune from practice, become a legislator and have power, join the judiciary and gain respect. As important as the separation of powers is the separation of career paths; wealth, power, respect, choose one, once.
“Indeed whereas Dennis can fire two 20 round pistols down his pants and still miss his dick you could fire two such pistols up your nostrils and miss what passes for your brain.”
I don’t have a dog in this fight, but that did made me laugh………
@SMFS
Two very different things there. You do not need to be separate to be independent.
Not synonymous but clearly related. The traditional concept of a Lord Chancellor who simultaneously sat as a judge in the top appeal court, served as a government minister, and sat as a legislator, was a good example of old-style “fusion” instead of separation that would no doubt horrify American readers, but also an idea that had become increasingly unfashionable due to doubts over whether the Lord Chancellor could truly be judicially independent.
“the way we moved away from the idea of the House of Lords in its entirety being able to serve as a sort of mega-court, to the role passing to a committee of professional judges who were appointed to the task.”
That is a remarkable interpretation of events.
Good grief, you’re usually good at arcane bits of British constitutional history. No, this is absolutely the transition that happened. Going back earlier in time, you could appeal all the way up to the monarch. Then we ended up with Parliament making final appeal decisions on the monarch’s behalf. But they’re primarily legislators, and in the upper house hereditary at that, not professional judges or even lawyers. In the 19th century, the coming of the Law Lords marked a professionalisation of that role, hiving it off to a committee of specialists who were appointed to that task. The whole issue is wrapped up with why we started getting the addition of “life peers” to the hereditaries, who could be appointed to the role but whose descendants would not swell the Lords benches for generations to come. This was the really radical changes in the judicial function of parliament, creating a supreme court in all but name. The fact after the reforms, these top judges still had a seat in the legislature is a matter of historical chance – like I said, the law to abolish the judicial function of the Lords with respect to England and Wales was enacted even as far back as the 1870s, just overturned due to changes in electoral fortunes. The fact we ever went through a Law Lords phase represented a compromise between keeping Parliament as technically our top court versus making sure our top appeals body resembled a professional court, and the relative importance given to the latter versus the former has been building for a long time.
The system of Law Lords was therefore a fairly long-lived but temporary anomaly resulting from half-completed reforms – and while theoretically Parliament remained the top court, in practice it was a court housed within Parliament whose members rarely made much use of the fact they were technically legislators. We can argue about the pros and cons of Blair’s decision to formalise the split – as you can see from what I wrote, I’m not a fan of the move personally – but claiming it to be something radical, unthinkable, contrary to the principles of common law etc, seems very wrong to me. The introduction of Law Lords represented a very drastic deviation from the traditional constitutional position, but brought a lot of advantages in terms of legal experience and depoliticising the role. Blair’s idea of moving them to a court outside Parliament, right or wrong, was something that had been mooted on and off for over 150 years, and even enacted (but not implemented) over 100 years before it finally happened. And since in the latter stages, Law Lords very rarely participated in House of Lords debates, and the judges seem likely to have made pretty much the same decisions whether they’d kept a seat in the Lords or not, its practical effects have been relatively small (though I’d argue regrettable). Miller I and Miller II would have happened without Blair’s reforms.
“When people quote centuries-old precedent in common law, they very rarely are harking back to Olde Style, Pre-Law Lords, House of Lords decisions. What’s the last such case you heard cited as precedent for anything? Far more likely to hear pre-1800 citations of the professional judges who sat the lower courts.”
Lady Hale’s Brexit decision?
Newsflash for you… that was a decision by professional judges that happened later than 1800!! The point I was making is your insistence that having Parliament serve as the top court is somehow a fundamental principle of common law seems off to me. You can argue that it was (at least traditionally) a fundamental part of the British constitution, sure. But common law? There are loads of common law countries whose top court is not formed of sitting legislators. And the long historical tradition of Parliament acting as a court – which dates back many centuries further than the Law Lords, a system that only existed for a bit more than a century – doesn’t seem to have left deep marks in the common law, partly because parliamentary judicial decisions prior to the Law Lords were not the work of professional judges and so tended to be confusing and often political. Pre-1800 case law from the professional judges in the lower courts has arguably had far greater impact on shaping the common law, than parliamentary judicial decisions from that era.
Before Hale Parliament had the right to dissolve itself. Now they need the permission of the Supreme Court. They ruled against the power of the Parliament and lied about it.
Normally you’re hot on constitutional stuff but this is all over the place. You seem to have got mixed up with dissolution and prorogation, and also mixed up on who has the right to do what. Prorogation ends one session of parliament and starts another, that power has always been part of the royal prerogative. Like all prerogative powers, its exercise needs to be lawful, and that was the legal dispute in Miller II. Parliament didn’t “prorogue itself”, the decision was made on the advice of the PM in contentious circumstances, which weren’t identical to previous exercises of the power in the last century. The political situation at the time was such that if Parliament had been given a choice in the matter, prorogation would never have happened, so your contention that somehow the Supreme Court was backing the Executive against the Legislature in that case is utterly bizarre (and had Tony Blair used prorogation in a similar way as a tool to get Britain to join the euro without a referendum, for example, I think you’d realise what I meant about a “conservative” interpretation of the royal prerogative being keen to limit executive power). Dissolving parliament is for elections – MPs stop being MPs etc. Under the Fixed-term Parliament Act, that happens automatically 25 working days before a General Election. If Parliament votes for a GE date, then indeed it sets in train its own automatic dissolution. No Supreme Court judgement required.
“Ecks is also the same guy who engages in”
At his best he can be a good blogger, though come to think about it, I am not sure he’s made a good post for about 2 years.
MyBurningEars September 20, 2020 at 3:44 pm – “but also an idea that had become increasingly unfashionable due to doubts over whether the Lord Chancellor could truly be judicially independent.”
Indeed. Because European theory is more important than British practice.
“But they’re primarily legislators, and in the upper house hereditary at that, not professional judges or even lawyers.”
You say that like it is a bad thing. Professionals are mainly concerned with defending their profession. There are very good reasons to be dubious of giving them control.
“This was the really radical changes in the judicial function of parliament, creating a supreme court in all but name.”
Except it wasn’t. If the House of Lords is part of the passing of laws, it is hard for them to then turn around to deny what the intent of the law makers was. If the Supreme Court is separate and not part of the making of laws, they can insist that what the law makers intended does not matter, it is what *they* think it means now that matters. It is an inherently different situation.
“The fact after the reforms, these top judges still had a seat in the legislature is a matter of historical chance”
As with all of the British constitution. And it worked. So we are back to our aquarium of fish again.
“but brought a lot of advantages in terms of legal experience and depoliticising the role.”
Those advantages are a matter of opinion. They are not immediately obvious to me – especially that depoliticising. But in so far as that is true, Lady Hale massively reversed that part of it.
“Blair’s idea of moving them to a court outside Parliament, right or wrong, was something that had been mooted on and off for over 150 years, and even enacted (but not implemented) over 100 years before it finally happened.”
Scottish independence is at least as old. As is Communism. That bad ideas are mooted does not make them good.
“Miller I and Miller II would have happened without Blair’s reforms.”
There is no evidence of that at all. That is just an opinion. One that I would strongly dispute.
“Newsflash for you… that was a decision by professional judges that happened later than 1800!!”
Sure but it was one that cited very old precedent indeed. So it is the last case I can think of that cited pre-Victorian judges.
“The point I was making is your insistence that having Parliament serve as the top court is somehow a fundamental principle of common law seems off to me.”
The Common law can also work with the King as the last court so that is not my point.
“Prorogation ends one session of parliament and starts another, that power has always been part of the royal prerogative. Like all prerogative powers, its exercise needs to be lawful, and that was the legal dispute in Miller II.”
To say that the exercise needs to be lawful is a tautology. Before Hale, the reasons for the prorogation were not justicible. The decision was a matter for Parliament through their representative, the PM, who could give whatever advice he liked to the Crown – even if formally the power rested with the Crown. Lady Hale insisted that it needed her permission. That is not strengthening Parliament. That is weakening their powers. Well, the powers of the Crown to be technical but in effect the Parliament.
“Parliament didn’t “prorogue itself”, the decision was made on the advice of the PM in contentious circumstances, which weren’t identical to previous exercises of the power in the last century.”
They never are. But in effect Parliament did make that decision. They chose the PM. He gave advice. The Crown held the power to do so but always did what the PM asked. No more.
“The political situation at the time was such that if Parliament had been given a choice in the matter, prorogation would never have happened”
The political situation as judged by you and Lady Hale. Boris was the PM, he held the confidence of Parliament in the only way that mattered – he was PM – and so anything else is presumption. Or in this case, Lady Hale not liking Boris’ decision. For purely political reasons.
“so your contention that somehow the Supreme Court was backing the Executive against the Legislature in that case is utterly bizarre”
But that is not my contention is it? As anyone who read what I wrote can see.
Parliament lost an important power (technically held by the Crown) to the Supreme Court. Who has insisted on the right to sit in judgement on private conversations between the PM and the Crown – and second guess the intentions of the parties therein. Worse, you seem to think they are now in the business of second guessing Parliament’s views and making decisions they are too cowardly to make themselves. That is an outrageous violation of the notion of the separation of powers, in so far as it applies in the UK, and is a nett loss of power to Parliament and the Crown. A power grab by the Court.
As I said, it is so outlandish for a Court to pass judgement on private advice from the PM to the Crown that I doubt it will ever be applied again. It was random decision making for political ends. Cadi justice.
Johhnybonk–That’s cos most commie trash like Arnold, Dave and –Jesus Christ help me I had to look back for his name–DBC Reed are long gone from the blog and handmaidens of evil like Million Word Missive NiV moved to Samizdata to avoid the brickbats. I felt it needful to fisk his vast deserts of drivel in those days.
Looking back to say early 2016 the quality of blogging and insult was better and several animosities now existing may have been made worse by there being fewer common/commie enemies to battle with now than then.
Also of course life itself these past 2 years has grown very much nastier and the future more bleak. We are living in what were just nightmares 5 years ago and the fact that lots of our fellow humans have had their –then only abstractly known–evil natures revealed as being all too real has not helped positive outlooks. And commenting on blogs increasingly seems to be a pointless timewaste in the face of gathering and growing leftist evil.
@SMFS
Very good, easier to read than @MBE meandering discourses
Puts @MBE firmly back in his box