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The Guardian's play by play account of today in UK politics notes that Geoffrey Cox has raised the possibility of parliamentary confirmation of judicial appointments, as is done in the US, because of increasing politicization of the UK courts.

Judicial appointments may have to be approved by MPs as courts become more political, Cox suggests

This question is not about whether parliamentary confirmation of justices would be a good idea. Rather, it is about something that might be good to know when considering whether it would be a good idea:

Is it possible today to evaluate justices of the UK supreme court by ideology, as is often done in the US? There, justices are often associated with the president who appointed them and ranked by their voting record.

Edit: Fizz helpfully added some links in comments. I will reproduce them here in case they are deleted. I will try to incorporate them into the answer more elegantly at some point in the future.

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    Comments deleted. Please don't use comments to debate the subject matter of the question. Only use comments for the purposes explained in the help article about the commenting privilege.
    – Philipp ♦
    Sep 25, 2019 at 16:07
  • The Guardian did profile the 11 justices a while back. But it's a narrative, not something quantitative like Martin-Quinn score. The profile does mention where they some of them stand on Brexit... but that's about it.
    – Fizz
    Sep 25, 2019 at 16:17
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    I try to avoid political commentary here but - the government lost an appeal to the Supreme Court in an unprecedented 11-0 split, there's pressure on Geoffrey Cox to resign as a consequence and he wants to look into the appointment of judges?
    – richardb
    Sep 25, 2019 at 16:17
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    This is probably as good as it gets, but it's better than I expected, See p. 13 in particular. Also see Chris Hanretty, ‘The Decisions and Ideal Points of British Law Lords’ (2012) 43 British Journal of Political Science 703, 710. which apparently has a more classic liberal-conservative scale.
    – Fizz
    Sep 25, 2019 at 16:27
  • @Fizz can you post an answer?
    – phoog
    Sep 25, 2019 at 16:38

1 Answer 1

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This argument is the other way round. The UK courts pride themselves on being as apolitical as possible. Because the government has been frustrated in its illegal course of action, they are proposing to pack the court with loyalists in order in revenge. They are proposing to make the court as explicitly political as the US system.

An example of a similar change might be Poland.

This is not a good route forwards. It's rejecting the idea of impartial justice as a concept and saying that all judges must be vetted by the Party, as they are in Communist countries. If Labour had proposed it the press would be denouncing them as trying to carry out a coup.

Background

Historically, the UK has not had a large conflict over separation-of-powers issues since the civil war. Three factors have contributed to the current "politicisation" controversy.

The first is the rise of Judicial Review since about 1985. This has generally been used to constrain public bodies to only doing those things they are authorised by statute law (ie Parliament) to do.

The second is the gradual establishment of modern constitutional law in the UK. The EU has been a big part of it, but the critical point is the Human Rights Act. This overrides all other legislation and ministerial action. This has been hugely unpopular in the press, who would prefer that troops have free action to shoot people and the Home Office have the power of arbitrary deportation.

The third is the collapse in majority. Traditionally it's been unlikely that the Government comes into conflict with Parliament, because the latter can immediately replace the former. The current government technically is in a minority by quite a long way. Before the Fixed Term Parliaments Act it would have collapsed some time ago forcing fresh elections.

Politicisation as a US import

Because the US system is somewhat dysfunctional and extremely majoritarian, all sorts of progressive actions on the rights of minorities have had to be established through the courts. Interracial marriage was legalised by Loving vs. Virginia, for example. This has upset those who are opposed to those rights and centered the USSC in a lot of politics.

(Although it's also possible to argue that FDR's threat to pack the court to get the New Deal was a high point of politicisation.)

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    I'm not asking about the merits of parliamentary confirmation of justices. I'm asking whether one can measure the current ideological state of the court.
    – phoog
    Sep 25, 2019 at 15:52
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    What I'm trying to argue but haven't been clear about is that that's almost an inappropriate question: to assert that a UKSC judge has an ideology is to assert that they should be disqualified as a judge.
    – pjc50
    Sep 25, 2019 at 16:04
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    (perhaps "faction" rather than "ideology", since by some definitions it's impossible to not have an ideology. Maybe the definition of ideology needs to be in the question)
    – pjc50
    Sep 25, 2019 at 16:05
  • The Human Rights Act is an interesting angle. Has anyone looked at whether different judges have given it different weight, for example? Much of US ideological jurisprudence seems to revolve around the varying weight given to competing rights of opposing parties or varying judgments about the strength of a government interest or the reasonableness of a measure taken to protect that interest. There, of course, is where ideology manifests itself (or at least is seen to manifest itself). Does this not happen in UK courts?
    – phoog
    Sep 25, 2019 at 16:18
  • I accept that ideology may be the wrong term. But it seems like it should be possible to ask this question without suggesting that a judge is unfit.
    – phoog
    Sep 25, 2019 at 16:40

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