The Bear’s Lair: How Supreme Courts should work

The United States Supreme Court’s season ends in the next few weeks with a slew of decisions, after a year in which it has been subjected to increasingly vitriolic criticism by a left that feels neglected. In Britain, the “Supreme Court” set up by Tony Blair has been a fount of leftist Establishment wokery and has never established its legitimacy. It is therefore worth defining what the function of a Supreme Court should be in a well-run society and why a well-functioning Supreme Court is needed to preserve that society from ruin.

I think it can be generally agreed that a Supreme Court is a country’s highest expounder and interpreter of its laws. The function of those laws in assuring the safety and freedom of that society is memorably defined in Robert Bolt’s “A Man for All Seasons:”

“William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I’d cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

A Supreme Court, therefore, is an institution which, whatever the merits of the laws that exist, ensures that they protect the lives, liberty and property (in John Locke’s formulation) of the society’s inhabitants, from the highest to the lowest. Thereby, it ensures the integrity of More’s legal “hedges” that protect society from the Devil’s winds.

In a society like the United States with a written constitution, the Supreme Court’s duty is thus clear. It must uphold that constitution, preventing it from being changed by lower courts, the legislature or bureaucrats without a duly enacted constitutional amendment, the creation of which was deliberately made difficult by the Founding Fathers. Over a period of more than 200 years, ideas of government will of course change, but the Supreme Court’s job is to prevent those changes from being enacted through the judicial system, forcing their proponents to pass formal legislation or, if necessary, a constitutional amendment to implement them. It is thus essentially a small-c conservative body, leaning against the fashionable nostrums of the day and it fails in its duties when it is not so.

Three famous Supreme Court cases illustrate my point. In 1857, Dred Scott v. Sanford, Chief Justice Roger Taney declared that African Americans were not citizens of the United States. This was contrary to the wording of the Constitution, which made no such distinction between races and contrary to the understanding of the Constitution in the 70 years since it was ratified. Together with the Fugitive Slave Act of 1850, which effectively made the Northern people responsible for catching escaped slaves, it greatly intensified inter-regional hatred, making a political explosion, secession and the Civil War much more likely. In this case, the Supreme Court attempted, without amending the Constitution, to alter existing constitutional understanding on a central point. It thereby failed in its duty.

In Roe v. Wade (1973) the Supreme Court conjured a right to abortion from the “emanations and penumbras” of the Constitution, rather than from the Constitution itself. The Constitution had been silent on abortion, a procedure that was extremely dangerous and universally condemned at the time it was drafted. Justice Harry Blackmun not only invented a right that was not in the Constitution, but invented regulations surrounding that right that had no Constitutional basis. As in Dred Scott, the Supreme Court overturned a Constitutional understanding that had stood for 180 years, in the interests of a sectional group that had come into existence a century or more after the constitution was ratified. While the distaste of the Framers for abortion is no more valid than its support in 1973 or today, the Constitution through the Tenth Amendment leaves its proper regulation to be decided by the states.

Brown v. Board of Education (1954) derived from two different interpretations of the Fourteenth Amendment, which guaranteed “equal protection” under the law to all people. Under Plessy v. Ferguson (1896) the Court had ruled that “equal protection” could be provided by segregated schools, provided they were equal. In practice, the segregated schools were not equal, and after 58 years seemed unlikely to become so. Hence the Court under Earl Warren decided that segregation no longer fulfilled the “equal protection” clause of the 14th Amendment. This decision caused not only a major political backlash, but extreme actions such as that of Prince Edward County, Virginia, which closed its schools altogether so that it did not have to integrate them. Nevertheless, unlike the other two examples, Brown v. Board of Education did not extract a new right outside the Constitution, but simply reinterpreted a right that all agreed to be in it, within the 14th Amendment. Hence, it did not violate the Supreme Court’s purpose, of preserving the Constitution in its original form, while interpreting it in the light of practical experience.

In the United States, the selection mechanism for Justices is set out in the Constitution, and provides Justices whose opinions reflect prevailing political opinions, albeit with fluctuations and a lag, since the Justices’ appointments are for life. In Britain, whereas the pre-2005 Law Lords were appointed by the Prime Minister of the day, a system similar to the United States, Supreme Court justices are appointed by a panel consisting primarily of lawyers. Like similar panels regulating the appointment of Bishops, this panel is a slave to prevailing opinion within the legal profession and has pushed itself steadily leftwards. Hence the U.K. Supreme Court is prone to succumbing to every fashionable “woke” fallacy such as climate change and the fostering of illegal immigration and attempts to impose these views on the cases it judges. In other words, it utterly fails as a Supreme Court protecting the life, liberty and property of British subjects, its main function.

In the United States, the Supreme Court under Chief Justices Rehnquist and Roberts has been reasonably staunch in defending property. One major exception however was its disgraceful decision in Kelo v New London (2005) where it allowed a runaway local authority to seize the property of the innocent Suzette Kelo, not for municipal use but for a private shopping center. While its post-Trump conservative majority lasts, the Court would do well to reverse this pernicious decision, resuming its proper role as protector of individuals’ property rights against the overweening state.

On life and liberty, the Court’s record is less sure. After the 9/11 attacks, Congress passed considerable legislation restricting civil liberties, notably but not limited to the USA Patriot Act 2001. That legislation has been used to deprive ordinary U.S. citizens of their freedom, notably the demonstrators at the Capitol on January 6, 2021. Several fanciful lawsuits have also been brought against President Donald Trump, and his associates Perter Navarro and Steve Bannon have been given jail sentences on trumped-up charges. There have been previous such attacks on civil liberties, notably the actions of Attorney General A. Mitchell Palmer in 1919-20, for example imprisoning the Socialist Presidential candidate Eugene Debs, and President Franklin Roosevelt in interning Japanese-Americans (which was upheld by a Supreme Court composed almost entirely of Roosevelt appointees in Korematsu v. United States). Nevertheless, by allowing such incursions on civil liberties, the Supreme Court is failing at one of its fundamental jobs.

In addition, we need a safeguard mechanism whereby the Supreme Court can intervene in cases of suspected electoral fraud; the 2020 Presidential election was sufficiently gamey that it should have been more closely scrutinized, for example. Without such a mechanism, we have no defense against leftist subversion of our elections, a fear that is justified by recent events in Venezuela, Ukraine and Brazil, among others. In this and other contexts, the Supreme Court should avoid rejecting cases on grounds of “standing.” Whether or not it is clear who precisely should appear before the Court, in civil liberties and election cases, as well as in extreme violations of property rights, the Supreme Court has a duty to give its opinion regardless of the “standing” regulations, which are after all set by the Court itself.

The U.S. Supreme Court with a few exceptions has fulfilled its proper role admirably over the past 235 years. The British Supreme Court has not done so and needs root-and-branch reform. That is probably best achieved by reverting to the pre-2005 system, since like all Tony Blair’s reforms, this one made life for ordinary Britons much worse.


(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.)