Legislative authority
Another aspect of judicial empowerment is the extent to which judges are willing to scrutinize legislative actions to determine whether they adhere to extrinsic standards. In the US, of course, those limits are set by the text of the Constitution itself, which is subject to judicial interpretation. Britain had no such standard against which its judges could measure domestic legislation until the Human Rights Act 1998 gave them the authority to determine whether parliamentary acts conformed to ECHR requirements.
In one of the US cases under consideration – Boumediene v. Bush (2008) – the Supreme Court used its ultimate power, that of nullifying a provision of federal law. In Section 7 (a) of the Military Commissions Act (MCA) of 2006, Congress had explicitly removed the federal courts’ jurisdiction over all habeas corpus petitions filed by Guantánamo prisoners, including petitions already pending at the time the law was passed. This provision, sponsored by the Bush administration, was intended to remove the ambiguity that the Supreme Court had previously found in the jurisdiction-stripping language in the Detainee Treatment Act of 2005 (in Hamdan). In his majority opinion in Boumediene, Justice Anthony Kennedy accepted that while Congress clearly intended the ban on habeas corpus to apply to all past, present, and future detainee cases, the law did not comply with the constitutional requirement that Congress ‘shall not’ suspend the writ of habeas corpus ‘unless when in cases of rebellion or invasion the public safety may require it’ (Article 1 Section 9]). The MCA, Kennedy wrote, ‘does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention’.
The UK cases also included one in which the Law Lords exercised their own ‘ultimate weapon,’ the declaration of incompatibility with the ECHR. In the A/2004 case (already discussed in the previous section in connection with executive authority), the House – after finding that the indefinite detention provision of the 2001 Anti-Terrorism Act could not be considered a proportional response to the demands of the declared public emergency – took the logical next step by issuing:
a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-Terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status.
While this was not the first such declaration to be issued since the HRA came into force in 2000, it was undoubtedly the most dramatic, striking at the heart of the first major anti-terrorism initiative enacted under the Blair government. Thus it became the most significant test of the government’s commitment to its own Human Rights Act. Would the government accept the court’s decision? If so, what steps might it take to find a legally acceptable way of handling non-UK terror suspects whom it could neither deport nor put on trial? Early in 2005, a few months after the A/2004 decision, the Home Secretary introduced new legislation repealing the ‘incompatible’ section of its 2001 anti-terrorism law, replacing it with language authorizing the issuance of ‘control orders’ placing restrictions, requirements, and prohibitions on the activities of persons suspected of involvement in terror-related activities. This legislation, designated the Prevention of Terrorism Act 2005, would become the subject of the control orders cases discussed in the previous section.
Judicial authority
The most basic indicator of an empowered judiciary is simply whether it has the self-confidence to decide cases that question the legitimacy of executive and legislative actions. No court can be said to be truly empowered unless it demonstrates the capacity to push back against political action that in the judges’ view has exceeded legal limits. This does not mean that whenever judges defer to the executive they show a lack of empowerment, since statutory or constitutional provisions often will provide unambiguous support for executive and legislative authority. However judges might decide such a case on its merits – even if they finally uphold the arguments of the executive or legislature about the extent of its powers – one would expect an empowered judiciary to defend its own authority whenever they perceive that it has been questioned or challenged. Empowered judges would be particularly determined to dispel any doubt that their assigned task of preserving the rule of law in the process of governance is as legitimate as those of the other branches. Perhaps the most famous statement of such a claim is Chief Justice John Marshall’s assertion in Marbury v. Madison6 that ‘[i]t is emphatically the province and duty of the judicial department to say what the law is’. Since Marbury, Supreme Court justices have periodically quoted Marshall’s dictum, reminding the other branches and the public of the court’s essential place in the constitutional order.7
Only a few court cases, in fact, involve direct challenges to judicial authority; on the contrary, most cases, by their very existence, implicitly acknowledge and accept the court’s legitimacy as a decision-maker. However, among the cases examined here there were several in which at least some of the judges apparently felt that their authority had been called into question and needed to be reinforced. For example, the Bush administration’s argument in Hamdi, that federal courts could not use habeas corpus proceedings to question the President’s unilateral authority over the Guantánamo detainees, seemed to imply that by agreeing to hear the case on its merits the court already was trespassing on presidential turf. Justice O’Connor’s majority opinion emphatically rejected that position, making it clear that
we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.
In Hamdan, Justice Stevens explicitly invoked the language of Marbury to dispose of the government’s argument that since the Constitution had no extra-territorial application, the court had no authority over proceedings at Guantánamo Bay:
The Constitution grants Congress and the President the power to acquire, dispose of and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say ‘what the law is.’
And finally, discussing the importance of the writ of habeas corpus in Boumediene, Justice Kennedy forcefully defended the role of the judiciary in such cases. While acknowledging that ‘[t]he law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security’, Kennedy went on to assert that
[s]ecurity subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives. Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.
The House of Lords used similarly forceful language to defend its prerogatives against perceived threats or challenges. As we have already seen, Lord Justice Bingham was willing to defer in A/2004 to the executive’s judgment that a national emergency existed (the
threshold requirement for derogating from the convention article prohibiting indefinite detention without trial), but he firmly rejected the government’s assertion that his court was not entitled to apply a second test – that of proportionality – to determine whether the action was lawful. Bingham wrote:
the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised … I do not in particular accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true … that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.
An implied challenge to judicial authority was an underlying issue in JJ, one of the 2007 control order cases, prompting Lord Bingham to emphasize that, contrary to the government’s suggestion, the Home Secretary had no power to issue control orders that violated ECHR Article 5. If a judge found that a control order issued by the Home Secretary did breach Article 5, that order was null and void, and the judge was obliged to quash it, not simply (as the government contended) to order that the minister correct the defect. As is often the case, the judicial prerogative was framed here as a matter not of power but of statutory duty. However, there is no mistaking the court’s clear purpose, which was to underscore judicial supremacy in this area of policy. Baroness Hale stated the position starkly in her concurrence: ‘[O]nly a court may deprive people of their liberty. The Home Secretary has no power to make such an order.’
Conclusion
This brief comparison of leading ‘war on terror’ cases by the highest courts in the US and the UK has found a shared determination by the courts to hold officials of their governments to legal limits. Though space does not permit a more detailed analysis of the cases, including concurring and dissenting opinions, it is important not to leave the impression that either court was monolithic in its views. Justice Stevens and Lord Bingham were the strongest voices on their respective courts against executive overreach, but they did not always speak for all their colleagues. Justice Clarence Thomas made it clear that he would have given the Bush administration everything it wanted in these cases – and possibly more. Among the Law Lords, Lord Carswell was notably sympathetic to many of the government’s arguments, and Lord Hoffmann more selectively so. Still, looked at in their entirety, these judgments are unmistakably the work of highly empowered judges, confident of their own institutional authority and committed to using it to hold the other departments of government accountable to appropriate statutory and constitutional rules.
Given the long history of judicial empowerment in the US, it is not so surprising that the Supreme Court was so willing and able to check and balance the power of the political branches. But keeping in mind how recently the Law Lords had acquired some of their powers, it is perhaps more remarkable that their decisions displayed as much independence as they did. In this section I offer a partial explanation for the rapid pace of judicial empowerment in the UK. It borrows from a framework developed by Charles Epp (1998) to account for the occurrence of ‘rights revolutions’ around the world. Epp emphasized the importance of a ‘support structure for legal mobilization’ (ibid., p. 131) consisting of advocacy organizations equipped with adequate funding for litigation, and a rights-oriented legal profession. Similarly, to function effectively, judges must have the support of legal advocates – both individuals and organizations – who support an empowered judiciary either as an end in itself or as a means of helping them achieve their own policy goals. Such an infrastructure undoubtedly exists in the US, where litigation has long been seen as ‘an integral part of the dialogue by which constitutional standards are shaped and reshaped under changing conditions’ (Feldman, 1992, p. 56). In the late nineteenth century, the ‘Supreme Court bar’ was dominated by corporate lawyers, who worked with considerable success to persuade the court to overturn federal and state regulations on constitutional grounds. For much of the twentieth century, it was mostly organizations on the political left who used the courts to litigate on behalf of their causes.8 That balance has shifted in the last several decades, however, as activists on the political right have stopped complaining about ‘judicial activism’ and begun using it to their advantage (Maiman, 2004). Since the Reagan era, they have been working through political channels to build a more conservative federal judiciary, and then litigating aggressively in favor of such issues as government accommodation of religion, and corporate campaign spending, and against affirmative action and gun control (Southworth, 2008).9 Meanwhile, the ranks of left-leaning litigation groups have also continued to grow. Apart from their impacts on specific policies, the litigation activities these groups collectively provide gives crucial support for an empowered judiciary. By seeking – indeed, demanding – judicial decisions on major issues of public policy, litigation organizations reinforce the legitimacy of courts as policy-makers, even when – as is sometimes the case – such rulings overturn longstanding precedents.
Compared to that of the US, Britain’s litigation infrastructure is still in nascent form; reflecting its origins in the UK’s recent ‘rights revolution’, it continues to be dominated by rights-oriented advocacy organizations. Writing in the mid 1990s, Epp identified the organization once known as the National Council for Civil Liberties (NCCL) and since 1989 as Liberty, as one of the ‘main components’ of Britain’s rights infrastructure. This observation echoed that of Carol Harlow and Richard Rawlings (1992), who in chronicling earlier pressure group litigation activities described Liberty as the organization that ‘has more claim than most to be the founder of modern English pressure through law’ (ibid., p. 292). In the years preceding the Human Rights Act, when alleged ECHR infringements by the UK could be redressed only through litigation at the European Court of Human Rights in Strasbourg, Liberty compiled an impressive record of victories against the British government. In the 1980s and 1990s, the organization campaigned for incorporation of the European Convention into domestic law, and lobbied for adoption of the HRA after Labour’s election in 1997. As Epp has observed, the codification of rights usually ‘provides popular movements with a potential tool for tying judicial power to their purposes’ (1998, p. 201); since the HRA came into force in 2000, most of Liberty’s domestic and Strasbourg litigation has been arguing for expansive interpretations of convention provisions. The organization also has devoted itself to defending the Human Rights Act against its critics.
A second pillar of the UK’s ‘judicial empowerment infrastructure’ is the organization called JUSTICE. Founded in 1957 as a non-partisan law reform group, JUSTICE made a name for itself in the 1980s and 1990s by winning a series of high-profile cases on behalf of victims of miscarriages of justice. After persuading the government to establish its own criminal justice watchdog agency, JUSTICE made the decision to cease all direct sponsorship of cases and focus its litigation program exclusively on third-party interventions. The organization concluded that it could have more influence on the direction of the law if it were able to participate in cases without the burden of defending a particular client’s case. One of the longest-standing backers of a written bill of rights for Britain, JUSTICE lobbied hard for passage of the HRA and over the past decade has been an active intervener in HRA cases (and others), While JUSTICE’s agenda is somewhat broader than Liberty’s, encompassing law reform issues which are outside of Liberty’s sphere, its highest policy priority today is human rights. While their positions are often not identical, JUSTICE and Liberty have a particularly close working relationship and, for the sake of efficiency, frequently sign on to each other’s interventions. Both organizations also litigate jointly with other rights advocacy groups like the Child Poverty Action Group, the Joint Council for the Welfare of Immigrants
, Amnesty International, Interights, and the Children’s Legal Centre, when their policy agendas intersect.
It should come as no surprise, then, that both Liberty and JUSTICE were involved in all of the ‘war on terror’ litigation discussed here. Liberty was an intervener in A/2004, A/2005 (as part of a coalition of 14 organizations), and E. JUSTICE intervened in JJ, MB, and A/2009 (jointly with three other groups), and also made an intervention in a European Court of Human Rights appeal, A and Others v. The United Kingdom (App. No. 3455/05), arising from the control order cases.10
The political effectiveness of individual advocacy organizations can be measured in various ways – for example, by the frequency with which they appear as direct litigants or interveners, or have their contributions cited in opinions, or see their positions prevail in court rulings. The collective contribution that such groups make to judicial empowerment comes from the alliance of interests between judges who are attempting – often in the face of political resistance – to carry out their responsibilities, and litigators whose political goals depend on judicial authority being effectively exercised. Signs of this symbiotic relationship are readily observable – inside the courtroom, of course, but outside as well. In 2009, a luncheon in Washington, DC, marking the retirement of Nadine Strossen as the president of the American Civil Liberties Union (ACLU), was attended by no less than three sitting Supreme Court justices, including one – Antonin Scalia – who rarely agrees with the ACLU but is on record as respecting its substantive contributions to the Court’s decision-making. Later that same year, the now-retired Lord Bingham, speaking in London at Liberty’s 75th anniversary event, paid fulsome tribute to the organization’s ‘principled’ role in protecting rights and liberties. He also took the occasion to issue a strong defense of the Human Rights Act, describing as ‘a travesty of the truth’ the charge that judges were acting ‘undemocratically’ when they enforced European Convention rights. Shortly before Bingham’s death the following year, Liberty’s director, Shami Chakrabarti, contributing to a newspaper series titled ‘My Legal Hero’, returned the judge’s compliment and affirmed the mutuality of their interests:
The Legacy of the Crash Page 35