The Bear’s Lair: The use and abuse of Supreme Courts

Every economic textbook trumpets the need for the rule of law and will tell you that one major reason for many Third World countries’ poverty is their uncertain legal system and bribery-susceptible judges. Yet to have a rule of law, we need a court system to enforce the law and general agreement on what the law says. Since words can have multiple meanings which change over time, Supreme Courts of some sort or another have been instituted in many countries to interpret them. That is where the trouble starts.

The problem of how to interpret laws has always been a difficult one. Sir John Fortescue (1394-1479), writing in 1470 a legal instruction manual “De laudibus legum Angliae” for the young Prince Edward (the Lancastrian heir killed the following year at the Battle of Tewkesbury) differentiated the English monarchy from others by claiming the English king was subject to the laws. Those laws in turn were interpreted by the Lord Chancellor, an office allegedly established in AD604; however since the Lord Chancellor was appointed by the King and subject to no other authority, it is difficult to see what Fortescue’s restriction of “governed by law” truly meant.

The Lord Chancellor approach is not a bad way of regulating the legal system provided you get a good one, who cannot be bribed by wealthy litigants or suborned by the King. Following the codification of law by Sir Edward Coke (1552-1634) in the 17th century and Sir William Blackstone (1723-1780) in the 18th, the British constitution was no longer expressed by unwritten “common law” and centuries old precedents, but was a system of laws under which liberties could be guaranteed and contracts enforced. Under a great long-lasting Lord Chancellor such as the Earl of Eldon (in office 1801-06, 1807-27) the ambiguities in law were soundly determined, and litigants and criminals alike could know where they stood. The problem arose with a Lord Chancellor of lesser caliber, or Lord Chancellors appointed by rapidly changing governments; given the glacial pace of many legal disputes, it could become a lottery how the law would stand when the litigants reached the highest tribunal.

The Holy Roman Empire solved this problem by an alternative approach, set up by the reforms of the great Emperor Maximilian I (ruled 1493-1519) in 1495. The Reichskammergericht acted as a final court of appeal and upheld the public peace between the Empire’s constituent entities. Its members were appointed not by the Emperor but by the various component parts of the Empire through the regional elected Kreis assemblies. Unlike the Lord Chancellor, the Reichskammergericht saw its principal function as promoting compromise between different regions, different interests and different worldviews rather than laying down definitive judgements.

The Reichskammergericht’s thirst for compromise sometimes caused cases to be spectacularly prolonged. We are told that 4% of cases introduced to the Reichskammergericht in the late 16th century were still outstanding a century later (to be fair, the Thirty Years War, splitting the Empire down the middle, held things up a bit). By comparison, Charles Dickens’ notorious Jarndyce vs Jarndyce was a model of rapid, well adjudicated litigation; no cases in the Chancery Court of which Dickens was so critical appear to have lasted longer than 40 years. Nevertheless, the Reichskammergericht and its subsidiary courts provided the ordinary citizen of the Holy Roman Empire with a means of redress, and the rule of law was certainly more prevalent for ordinary citizens in the Holy Roman Empire than in any other part of continental Europe except Holland. It was also more prevalent in the Empire than in England prior to the 1660 Restoration and the reforms that followed it.

The U.S. Founding Fathers, in designing the Supreme Court, looked to both Britain and the Holy Roman Empire for inspiration. From Britain, they got the idea that the law should be readily comprehensible, and that cases should be decided in a finite amount of time. Blackstone’s “Commentaries on the Laws of England” had recently been published, setting out English Common Law in a coherent and comprehensible fashion, so the Founding Fathers decided to continue taking that Common Law as the basis for U.S. legal decision-making. So much was this the case that for the first decade or so, almost all Supreme Court decisions were made by reference to Blackstone, and even today, the Commentaries are cited in Supreme Court decisions some 10-12 times a year.

From the Holy Roman Empire, the Founding Fathers took two things. First, they took the concept of a Supreme Court of several Justices agreeing on decisions rather than a single supreme judge who would make decisions unilaterally. Second, in the Supreme Court’s practice they took the Reichskammergericht’s strong preference for compromise. Thus the most successful Supreme Court Justices, from both right and left, have attempted to decide cases in such as a way as to make the least possible disturbance of the existing understanding on a topic, restricting the freedom of action of lower courts and individual States as little as possible. These innovations, not hundred-year lawsuits, are the true positive legacy of the Reichskammergericht.

In 2005, under Prime Minster Tony Blair, the United Kingdom decided to move from its 1400-year-old Lord Chancellorship to a Supreme Court. However, like almost all Blair’s reforms, this change was done wrong. Unlike the U.S. Supreme Court or the Reichskammergericht, the U.K. Supreme Court’s members are not selected by a democratic or representative process, but by an appointed Commission, consisting primarily of existing judges and other lawyers. Consequently, all the follies and prejudices of the legal profession at a given time are reflected in the selection of Supreme Court members, and ordinary lay public opinion is completely unrepresented.

This has resulted, in today’s Britain, in the Supreme Court being violently pro-Remain in the Brexit debate and generally socially leftist and destructive. Its unpleasant propensities are reinforced by a statutory requirement that it take account of decisions in foreign courts such as the European Court of Human Rights, which reinforce its Big Government anti-democratic tendencies. Consequently, it has neither competence nor legitimacy, and should be abolished as soon as possible, as one lances a cancerous carbuncle.

In the United States, the Supreme Court has gone wrong when it has abandoned its usual principles of minimalism and compromise, usually in pursuit of the fashionable nostrums of the day. The notorious 1857 Dred Scott decision, for example, undoubtedly represented the fashionable views of the political class – as several have remarked, if slavery had been put to a popular vote in 1860, it would have won by about 70-30. However, the Dred Scott decision failed utterly in maintaining the principle of compromise and minimal damage; it overturned the Compromise of 1850 and led to an immensely destructive Civil War within only four years.

Similarly, the Roe vs. Wade decision of 1973 undoubtedly reflected fashionable elite opinion at that time, but it prevented the states from coming to their own compromises on abortion, and (apart from being intellectually disreputable in itself) has outraged at least half the U.S. adult population for 47 years and counting. A much narrower decision, setting guidelines within which different states could formulate their own policies on abortion, would have been far more successful and less divisive. It would also have followed the traditions of the Reichskammergericht that have sustained the Supreme Court in its better moments for over 200 years.

In economic matters, the Supreme Court was asking for trouble in 1933-36, when it overturned the (intellectually half-witted) economic policies of the Roosevelt administration. By Reichskammergericht tradition, it should have trodden very carefully in that area, perhaps allowing the administration’s economically eccentric policies. The one exception was the Gold Clause case, where it should have upheld American citizens’ constitutional right to own gold, thus striking down the President’s economically illiterate and clearly unconstitutional manipulation of the currency. (In real life, of course, it upheld the Roosevelt Administration in the Gold Clause cases, thus displaying its own intellectual incoherence.) The Supreme Court could then usefully not have followed up the “switch in time saves nine” by its incoherent 1938 decision in United States vs Carolene Products, which overturned its long-standing and well thought-out Lochner vs. New York decision of 1905, and gave rise to endless knuckle-dragging state meddling in the U.S. economy.

The Supreme Court runs the danger of becoming illegitimate if it follows current intellectual follies, overturning the wishes of the people as expressed through Congress and state legislatures. If it follows both the text of both the U.S. Constitution and individual laws, and sticks to the Reichskammergericht tradition of compromise and minimal change, it will continue fulfilling its function admirably in the centuries to come.

(The Bear’s Lair is a weekly column that is intended to appear each Monday, an appropriately gloomy day of the week. Its rationale is that the proportion of “sell” recommendations put out by Wall Street houses remains far below that of “buy” recommendations. Accordingly, investors have an excess of positive information and very little negative information. The column thus takes the ursine view of life and the market, in the hope that it may be usefully different from what investors see elsewhere.)