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The Supreme Court of the United Kingdom held on Tuesday that Prime Minister Boris Johnson’s government acted illegally when it “prorogued” Parliament, a process that temporarily suspends Parliament and prevents the passage of legislation. (Technically, the power to prorogue Parliament rests with the Queen, but, as the court explained, the Queen’s assent is “a formality.”)
R v. The Prime Minister — a brutal political blow to the prime minister with implications for the ongoing Brexit debate — is likely to surprise American audiences used to our increasingly partisan Supreme Court. The British court’s decision, issued just days after hearing arguments, is unanimous, crisp, and surprisingly clear, laying out the shared view of eleven justices. There are no dissenting opinions touting one justice’s pet theory of executive power or slapping a thinly veiled legal justification on a partisan outcome.
The decision is the product of a judicial system that does far more to insulate its highest judges from partisan politics than the Constitution of the United States. Americans who wish to avoid the partisan drama that surrounded the Supreme Court nominations of Merrick Garland, Neil Gorsuch, and Brett Kavanaugh could learn a great deal from the British system of choosing justices.
The United Kingdom, much unlike the United States, selects its justices through a process that emphasizes merit and experience. In the American system, a partisan president names a judge whose political views are well known to key members of that president’s party, and then the judge is confirmed (or denied a confirmation vote altogether) by a partisan Senate. The British system, by contrast, largely relies on senior members of the judiciary and other people who are intimately familiar with the judiciary to choose justices — with the added caveat that “selection must be on merit.”
The American system, in other words, seems designed to turn the Supreme Court into a political football because it places judicial selection in the hands of politicians. The British system, while not perfect, is far better designed to depoliticize the judiciary.
How the Brits pick their justices
The Supreme Court of the United Kingdom sits at the apex of the British judicial system and has the final word in all civil cases and in most criminal cases throughout the UK.
The British system of choosing supreme court justices is, well, complicated. In short, it relies on a selection commission, convened when a vacancy arises and typically chaired by the Supreme Court’s president. Such vacancies occur more often than in the United States, moreover, because the Court has 12 seats and justices must retire when they reach a certain age — which can be either 70 or 75 depending on when they joined the bench.
England and Wales, Scotland, and Northern Ireland each have their own judicial selection commissions or boards, and the chair of each of those bodies nominates a representative to participate in the selection panel. The Supreme Court appointments commission also includes a senior member of the judiciary nominated by the court’s president.
The commission must consult with a fairly long list of senior judges and other high officials before making a selection. At the end of this consultation, it selects a single candidate, and that candidate’s name is sent to the Lord Chancellor, a high-ranking cabinet official.
At this stage, a limited amount of partisan politics can enter the selection process. The Chancellor will typically be a member of the party that controls Parliament and is appointed by the Crown upon the advice of the prime minister. Upon receiving the name, the Chancellor may approve the selection, reject it outright, or ask the commission to reconsider. But the Chancellor may only invoke the latter two opinions once each.
Thus, in effect, the Chancellor has a single-use veto. They may reject one candidate, but cannot block the commission’s second choice if the commission is committed to that person (the commission may send the same name to the Chancellor after the Chancellor asks for a reconsideration but not after a rejection).
At the end of the process, the name is sent to the prime minister who in turn sends it to the Queen for a formal appointment.
Compare that to the United States, where potential judges are often identified by ideological societies while those judges-in-waiting are still in law school. The task of naming new judges is given to presidents, who can often use judicial selection to extend their influence long past when they leave office. And the Senate can act either as a rubber stamp for nominees of the same party that controls the Senate or as an insurmountable roadblock for nominees of the opposite party.
It’s worth noting that many US states use merit selection commissions to select their judges. According to the Brennan Center for Justice, “from 1940 to 1994, 23 states implemented some version of merit selection.” The “gold standard for many in the reform community” is known as the “Missouri Plan” after the first state to adopt it.
In Missouri, state supreme court vacancies are referred to a seven-person commission that includes “three lawyers elected by the lawyers of the Missouri Bar ... three citizens selected by the governor, and the chief justice, who serves as chair.” That commission selects three names and forwards them to the governor, who must choose one of the three within 60 days or else the commission will make the final decision.
Unlike the British system, however, the Missouri Plan adds an additional political layer to the process. After a year in office, the new justice must survive a retention election, where the state’s voters decide whether to keep them in office or remove them.
Merit selection isn’t perfect, but it’s better than what we have now
A 2017 report by the American Bar Association lists several flaws with the Missouri Plan — two of which may also apply to a British-style system. Retention elections “have become increasingly high-cost and politicized and put troubling pressures on judges deciding controversial cases” — an issue that arose in Iowa’s 2010 elections when three state supreme court justices were removed after anti-LGBTQ groups campaigned against their decision in favor of marriage equality.
Merit selection commissions may also be “subject to ‘capture,’ either by special interests or the political branches.” Indeed, this appears to have happened in Arizona, where the judicial selection commission’s allowed Republican Gov. Doug Ducey to appoint an anti-government activist and a severely conservative prosecutor to the state supreme court.
Additionally, the ABA warns that states with merit selection commissions have not had “success in ensuring a diverse bench.” A 2010 Brennan Center report found that “white males are approximately 37.5% the general population of the United States, and yet they are, roughly speaking, 66% of judges on state appellate benches,” though the same report suggests that states that elect their judges have slightly less diversity on the bench than states that use merit selection.
Commissions, whether structured like the Missouri system or the British system, offer no guarantee that an entrenched, powerful group won’t gain control over the judicial selection process. But despite cautionary tales like what’s happened in Arizona, there are also plenty of cases where such commissions have been successful in depoliticizing the judiciary.
One such example is Judge Morgan Christen, who President Obama appointed to the United States Court of Appeals for the Ninth Circuit in 2012. Before joining the federal bench, Christen was a justice of the Alaska Supreme Court — and an appointee of Republican Gov. Sarah Palin. “I have every confidence that Judge Christen has the experience, intellect, wisdom and character to be an outstanding Supreme Court justice,” Palin said in 2009 after choosing Christen from the names forwarded to her by her state’s selection commission.
Alaska’s merit selection process, in other words, managed to find one of the few matters that both Obama and Palin could agree upon: that Morgan Christen is an excellent judge.
Most of the ABA’s critiques of merit selection are based in fears that commissions will not be effective in insulating judicial selection from politics. And some of the time, those fears are valid.
But a system that might become captured by partisans is a whole lot better than the system the federal government uses to select judges right now. That system isn’t just wholly driven by partisans; it doesn’t even ensure that partisans who enjoy popular support will choose judges.
Obama nominated Merrick Garland to fill a Supreme Court vacancy in 2016 after he won re-election in 2012 by more than 3 million votes. Senate Republicans — whose “majority” represented about 20 million fewer people in the Senate than the Democratic minority — refused to give Garland a confirmation hearing or a vote.
Trump’s first Supreme Court nominee, Neil Gorsuch, was the first person in American history to be nominated to the Supreme Court by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. The second was Trump’s second nominee, Brett Kavanaugh.
So the ABA’s concerns that commissions are not immune to capture are real, but the alternative at the federal level is judicial selection by a minority party that owes its power to a constitutional system that effectively gives extra votes to Republicans.
Similarly, the ABA’s concern that merit selection systems do not always produce diverse judges is fair. But the federal system is no less concerning. According to an NPR report from last August, “around 70% of Trump’s judicial appointees are white men.”
There is probably, in other words, no perfect way to insulate judicial selection from political capture. But there are better and worse ways to do it. And the current system used by the federal government is one of the worst.
