Tag: criticism

Grow a Thicker Skin

The bench is no place for those who can’t cope with criticism

Justice Joëlle Roy, of Quebec’s provincial court, is not amused. At all. And she’ll have you know it. More importantly, she’ll have all involved in a sexual assault and incest case she’d been hearing know it. Even though neither they nor the case had anything to do with Justice Roy not being amused. No matter: as La Presse reported, Justice Roy pulled out of the trial, though a further report confirms the proceedings will after all be able to continue with a different judge (in application, so far as I can tell, of s 669.2 of the Criminal Code). But it’s a most unfortunate story, which reminds us of a fundamental requirement for judicial anatomy: a thick skin, to go with a stiff spine, a solid gut, and a good brain.

Justice Roy’s tantrum is in response to a column by Yves Boisvert, also in La Presse. Mr. Boisvert describes a judgment by Justice Roy in a different sexual assault case, which in his view is badly tainted by an embrace of rape myths of the perfect-victim variety ― he writes that it “is not too far away from the notorious ‘why didn’t you keep your knees’ together, which got an Albertan judge removed from office” (translation mine, here and below). Mr. Boisvert then proceeds to make a broader point about Justice Roy: “Within just seven years of her appointment, she has already been harshly rebuked by appellate courts on multiple occasions,” which he then lists. Not just reversed, mind you, but reversed based on “serious and repeated errors of judgment”, which, Mr. Boisvert argues, raise questions about Justice Roy’s “competence”.

This is harsh criticism, no doubt. But it is criticism based on facts presented to the reader and detailed so far as a newspaper column permits (though I do wish newspapers ― especially those, like La Presse, that are only published online anyway ― actually linked to judgments when those are available). And, while this wouldn’t excuse unfair criticism, it is worth noting that Mr. Boisvert is a knowledgeable and experienced writer about the justice system. I have had my differences with him, but he is neither a hack nor a rabble-rouser. I haven’t read the judgments he discusses, so I won’t express a definitive opinion on the fairness of his column, but even if one disagrees with it, it does not strike me as a hit piece. And it is certainly not an attack on Joëlle Roy the person rather than Justice Roy the judge.

In other words, it is a piece of perfectly legitimate criticism directed at the holder of a public office. It is precisely the sort of thing that journalists are expected to do. And office-holders are expected to put up with this sort of thing, because it comes with their station ― no less than the forms of respect and the salaries to which they are entitled. This is no less true of judges than of elected officials, because judges exercise coercive power over citizens. It is, or at any rate it ought to be true, that they do not control the “direction either of the strength or of the wealth of the society” and “may truly be said to have neither FORCE nor WILL, but merely judgment”. But when they are lacking in precisely that quality which they are called upon to exercise, they not only can but must be criticised for it. To be sure, as I have noted here, there are examples of criticism that goes far beyond what is justifiable, which should be denounced. But even then, that task falls not to the judges themselves, but by those of us who care about the judicial system.

Justice Roy, seemingly, is not of this view. The La Presse story linked to above describes her taking to the bench twice rather than once, in the aforementioned incest trial, to respond to Mr. Boisvert’s column. On the day it was published, Justice Roy described it as a “very vicious personal attack”. The next day, she read a prepared statement calling it “very violent”, and explaining her words the day before as due to her having “been punched. Because yes, words are sometimes like punches, more vicious even, especially when they are of this sort and magnitude.”

This is a remarkable outburst ― La Presse quotes judicial ethics experts who struggle to recall its like. They also point out that it calls Justice Roy’s “equanimity” (“sérénité“) into question. So it does. Her judgment too ― ironically, perhaps, but unsurprisingly, since that’s what Mr. Boisvert’s column said. To repeat, that column is not a personal attack. It is criticism of the manner in which an office-holder discharges her duties. But even a personal attack does not justify the “words are violence” move that Justice Roy pulls with an obliviousness that would be comical if it were less sad. Words, even very nasty words addressed to public officials, are not violence. It is a good thing that Canadian law no longer recognizes the contempt of “scandalizing the court”, which referred to doing or saying something “calculated to bring a Court or a judge of the Court into contempt, or to lower his authority” ( R v Gray, [1900] 2 QB 36). One can only imagine how Justice Roy would have used it.

I am sure that it is thoroughly unpleasant for a judge to read public criticism, whether on a blog like this one, in a journal article (assuming judges read those once in a blue moon), or in a newspaper. It must hurt, and it must hurt all the more when it follows on from criticism delivered by the Court of Appeal, to which judges are sensitive. But, again, this comes with the office and with the nicer things about it. When you work for the public, especially in a position that involves sending members of the public to prison ― or failing to do so ― you have to put up with public scrutiny and even with public nastiness. If you don’t like that, you always have the option of resigning, and freeing up the spot on the bench for someone who is better able to cope with criticism. Who knows, they might even give less occasion for such criticism into the bargain.

Precedent and Respect

When ― if ever ― can lower courts criticise their hierarchical superiors?

When, if ever, should lower-court judges criticize decisions of the higher courts that bind them? Can they do it in their reasons, whether speaking for their court or only for themselves? Judicature has published a short but thoughtful exchange on these questions between Orin Kerr and Michael Dorf. In a nutshell, Professor Kerr argues that such criticism is (almost?) never appropriate in judicial opinions; it belongs in op-eds and scholarly articles. Professor Dorf, by contrast, sees a place for it, if only a limited one. My own instincts are on Professor Dorf’s side.

For Professor Kerr, judicial opinions “receive respect not because they’re wise or well-reasoned. Some opinions are, and some opinions aren’t. Rather, judicial opinions receive respect because they are legally operative documents issued by judges with the power to issue them”. (84) It follows that

When you write a judicial opinion, you should limit yourself to what you have formal authority to decide. You should explain why you voted as you did in the case before you, as every legal opinion does. But judges shouldn’t also use legal opinions to pontificate about other views they have outside of the case and outside their authority. (84)

Since it is not the job of lower court judges to criticize their higher-ups, and since such criticism is legally inoperative, it should be saved for other venues: “Keeping your exercises of formal authority separate from your views of legal questions outside that authority helps maintain the legitimacy of the authority you exercise.” (85)

This is especially so for those views which a judge held prior to or would hold irrespective of his or her judicial office. Perhaps there is a place for judges criticizing “a [binding] precedent … when the judge’s basis for that opinion is a special insight, gained only in a judicial capacity, into how the precedent is working”. (88) But even then, the lower court judge “can draw attention” to the problem “without taking a view on whether” the higher court should reverse itself. (87)

Meanwhile, Professor Dorf’s position is that judicial criticism of binding authority ― not just higher-court precedent but also legislation ― is appropriate in a wider range of circumstances. For him, it is important that “in a well-functioning judicial hierarchy, information flows both ways. Lower court judges have knowledge and views that can and should usefully inform judges on higher courts”. (85) If lower court judges “spot a defect — a rule that misfires or that ought to but does not contain an exception” (86), for example because “a statute or opinion of a higher court [is] be based on a seemingly reasonable premise that proves false in practice” (86) ―, they might try to finesse or work around that rule. But that’s not always possible, and not necessarily appropriate. Short of refusing to follow the law (and perhaps resigning to make the point), their only other option is to criticize it in an opinion applying it.

Professor Dorf agrees that this should not happen very often. Criticism on “moral” grounds should be especially rare. Yet since “law often incorporates moral judgments, there should be room for an occasional statement by lower court judges that the precedent they must apply is wrong and thus should be reconsidered”. (86) And, regardless of the reason for it, criticism can be offered in a statement of reasons; indeed “it is hardly obvious that doing so outside of the context of a concrete case is the least controversial way to do so”. (87)

For what it’s worth, my view is closer to Professor Dorf’s; in some ways, I might go further than him. Let me begin, though, with one point he raises without developing it, and which makes me uneasy.

It is judicial criticism of legislation. As I have argued before, I think courts (including apex courts) should mostly try to avoid giving their opinions on legislation, whether to praise or to criticize it. It is not their constitutional role ― except in a constitutional challenge to the legislation’s validity or application, and even then the courts ought to focus on legal issues. Commentary on legislation is, inevitably, bound up with policy issues that are outside of the courts’ purview, and it is just as inevitably at risk of being recycled by politicians themselves, at the risk of compromising the public’s perception of the courts’ impartiality. I think courts can comment on technical issues with legislation where it fails to provide sufficient guidance to the subject and to the courts themselves. But this is probably a narrower view of permissible criticism than Professor Dorf would allow.

That said, I think that lower-court criticism of higher courts’ jurisprudence is a different matter. Although the courts stand in a hierarchical relationship to one another, they are fundamentally engaged in the same enterprise of saying what the law is. In this exercise, as Justice Jackson famously put it, higher courts “are not final because [they] are infallible, but [they] are infallible only because [they] are final”. They can err, and I don’t think that it is constitutionally objectionable for their colleagues to say so ― provided, of course, that they still respect their subordinate role in the judicial hierarchy and apply binding precedent until it is overturned. (Of course, in the Canadian context, there is an exception even to this principle, set out by the Supreme Court in Canada (Attorney General) v Bedford, 2013 SCC 72, [2013] 3 SCR 1101. In my view that was a mistake.)

Sure, it’s probably a good idea for judges to be, well, judicious about when to speak out. Their main task is to decide disputes, not to be legal commentators. But I doubt there is really much danger of this happening. Lower-court judges are simply too busy to moonlight as opinionated bloggers. Conversely, though, I might actually be more uneasy with judicial commentary on the state of the law expressed either without reference to the problems it causes in a particular case or with reference to a past decision. I think it is a valuable principle that reasons for judgment ought to speak for themselves.

So when judges consider that the issue is important enough, and that it arises starkly enough in a case before them, I think they can ― and perhaps ought to ― take the opportunity to speak out. And I wouldn’t limit this to either cases of the binding precedent “misfiring”, or being based on a mistaken premise, or even particularly strong moral disagreement. I think that, just as importantly, it can be appropriate for a lower court judge to say that a higher court’s decision is legally wrong ― that it does not fit with other precedents or with the legal landscape as a whole. It is the Supreme Court’s job to sort out these conflicts and contradictions, which are to some degree inevitable in a dynamic legal system. But lower courts can contribute to the law working itself pure by pointing out impurities ― even when it is the higher court that caused them to exist.

Ultimately, I disagree with Professor Kerr’s view of judicial opinions. To repeat, he says that they “receive respect not because they’re wise or well-reasoned”, which they need not be, but “because they are legally operative documents issued by judges with the power to issue them”. I think this confuses respect and authority. A judgment’s binding authority is a product of the law alone. But the respect due to it is indeed a function of its reasoning. A poorly reasoned judgment is still binding on the parties, and its ratio sets a precedent that binds courts below that by which it was rendered. But it doesn’t follow that this judgment is automatically entitled to respect ― that it ought to be regarded as deserving to be part of the law. As a result, it is not improper for a court bound by that judgment to express reservations about it while still applying it: in doing so, the lower court defers to the higher court’s authority, but withholds the respect to which it is not entitled.

That’s my two cents, anyway. Again, the discussion between Professors Kerr and Dorf is worth your time.

Still Unhappy

The Canadian Judicial Council’s report on the former Justice Camp does little to ease my concerns

First of all, my apologies for the silence in the last couple of weeks. Let me return to something that happened during that period: the Canadian Judicial Council issued its Report to the Minister of Justice in the matter of Robin Camp, the “why didn’t you keep your knees together?” judge. The Council confirmed the recommendation of the Investigative Committee it had previously set up that the judge be dismissed, and Justice Camp finally resigned ― which, as I argued in my post on the Committee’s report he should have done long ago. Unfortunately, Justice Camp’s failure to do so gave the Committee the occasion to issue a report that was, in my view, seriously flawed. The Judicial Council’s own Report does little to remedy these flaws.

My general objection to the Committee’s report was that it was not clear on what basis it recommended that Parliament dismiss Justice Camp. Perhaps it was his (inconvertible) sexism. Perhaps it was his “antipathy” towards, indeed his “bias” against, the law he was applying, or maybe not the law itself but the values underlying it, though it is possible that that was only because this law was “laden with concerns about gender equality bias and discrimination”. Perhaps it was because Justice Camp’s behaviour contributed to a public impression that the system is rigged against the victims of sexual assault. All of these factors were present in Justice Camp’s case, but what about some future one where they would not be? Parliament’s power to remove a judge from office is too grave to be exercised on an uncertain basis.

Unfortunately, the Judicial Council does not clarify matters. Its own report, beyond assertions that it has carefully considered that of the Committee, consists mostly of and of responses to Justice Camp’s objections. The responses are arguably sufficient so far as they go, but while they may have persuaded Justice Camp to finally fall on his sword, they provided little guidance for future that may be somewhat, but not entirely, similar to his. We still do not know whether the various factors identified by the Committee are all necessary, or which of them are, for a judge to be removed. As I did in my earlier post, I want to acknowledge the difficulty of being precise here. Each case is unique and calls for a judgment on its own fact. But I still believe that more clarity about the circumstances in which it is permissible to interfere with judicial independence would have been in order.

The Council might have tried to address one specific point tried to make ― not that I think it did so because I made it! ― about the potential chilling effect of the Committee’s report on judges who might be less than enamoured with the law as it happens to stand from time to time. The Council wants us to know that it is

mindful that any criticism Council levels against a judge must not have a chilling effect on the ability of judges, generally … to call attention to deficiencies in the law in appropriate cases. Indeed, judges have a duty to be critical of existing legislation in specific circumstances, for example where a judge forms a view that a specific provision contravenes our Constitution or otherwise operates in a deficient manner. We do not in any way intend to deter judges from asking the hard questions and taking the difficult positions that are sometimes necessary to discharge their judicial responsibilities. [35]

This is a useful clarification, although in my view it does not go far enough. It does not address the Committee’s confusing, and in my view unsustainable, attempt to distinguish (permissible) criticism of a law’s practical effects and (impermissible) criticism of values underpinning the law. Nor does it address the unjustified asymmetry between judicial commentary that criticizes the law and that which goes out of its way to approve it, though admittedly the latter sort of commentary was not in issue here. Be that as it may, the Council notes that “some of the Judge’s comments in this case were not in the nature of legitimate legal inquiries or comment” [36], perhaps because they were irrelevant to factual and legal issues before him. But again, this strikes me as too vague to provide useful guidance for the future about the scope of “legitimate … comment”.

It is said that hard cases make bad law ― not hard in the sense of intellectually challenging, but hard in the sense of emotionally difficult. But perhaps so do easy ones. Justice Camp’s case was easy ― in the sense that it was easy to want him gone from the bench. But that may well have encouraged the people who decided it ― thoughtful jurists though they are in their day jobs ― to spare themselves some difficult line-drawing exercises. I can only hope that we do not come to regret this.

Unhappy Camper

The shortcomings of the report into the misconduct of Justice Camp

The Inquiry Committee set up by the Canadian Judicial Council to investigate whether Justice Robin Camp ― the “why didn’t keep your knees together” judge ― has “committed misconduct and placed himself, by his conduct, in a position incompatible with the due execution of the office of judge” has produced a report concluding that he did. The Report has been praised, not least for its pedagogical qualities. But of course, its primary function is not to be a teaching aid in educating lawyers and judges about rape myths and the conduct of sexual assault trials, useful though it may be in doing that. It is, first and foremost, the potential foundation for Parliament’s exercise of one of its most tremendous powers: that of moving an address for the removal of a judge. And in that respect, in my view, the Report falls short of what would have been desirable.

To be clear: I do not say this out of any sympathy for Justice Camp. His conduct towards the complainant (and, to a lesser extent, the prosecutor) during that notorious trial was appalling, as the Report details. And, unlike Brenda Cossman, I do not think that whatever efforts Justice Camp has undertaken since to educate himself about the history and purposes of sexual assault law are enough to allow him to go on in office. This re-education, whatever its value, cannot address the fact that he had the conceit of conducting a trial in an area of law about which he knew next to nothing. Since he is now at the Federal Court, there would be no sexual assault trials in Justice Camp’s future even if here were to stay there, but there could be plenty of other cases in areas of the law about which he does not know much ― and I do not think that litigants who appear before him in such cases can be assured that he will make enough efforts to educate himself about those. So there are sufficient reasons in the report for Justice Camp to resign ― indeed, to make resignation the only right course of action.

But are there sufficient reasons for Parliament to fire him? That is not so clear to me. The Report never quite articulates a clear reason why Justice Camp should be removed from office. Instead, it seems that a combination of several factors, which may or may not have been sufficient on their own (we are never told), lead to that conclusion. Such an approach is not necessarily objectionable in other contexts, but it is a problem here, because, not knowing which of the Report’s concerns might have been the decisive one, governments, activists, or simply disgruntled individuals with an ax to grind may be tempted in future cases to use any one of them as a stand-alone motivation for an attempt to remove another judge. And this is disturbing, because these concerns can potentially extend to circumstances quite unlike those involved here, and the exercise of any power, but especially one as awesome (in the old sense of the word) as the removal of a judge, in the absence of clear principles limiting this power, is worrying.

* * *

Part of the reason why the Report suggests that Justice Camp ought to be removed from office is simply the sexist stereotyping that many of his comments during the trial and his subsequent reasons for judgment reflect. But it is only a part, and as I read the Report not the decisive one. Rather, the Report puts a great of emphasis on the fact that Justice Camp’s comments demonstrated his “antipathy towards laws designed to protect vulnerable witnesses, promote equality, and bring integrity to sexual assault trials”. [6] The Report suggests that “antipathy” towards the law the judge is charged with applying, or maybe to the values underlying this law, in itself amounts to bias ― though it is not quite clear whether this is only in the unique circumstances of a sexual assault trial, but perhaps more generally.

The Report notes that “[g]enerally, judges refrain from commenting on the merits or wisdom of laws enacted by Parliament or the provincial legislatures”, but also “that judges are permitted to criticize the law in certain contexts”, [86] especially in constitutional cases. The Report concludes, however, that

Justice Camp’s comments about [the ‘rape shield’ provision] of the Criminal Code are far removed from … permissible criticism. His comments were gratuitous and stemmed from a limited understanding of what he was so quick to criticize. Moreover, his criticisms were not based on thoughtful analysis nor even any analysis at all. [88]

This criticism is to be contrasted with, not compared to, the good sort of criticism that “ha[s] nothing to do with the values underlying those provisions” that a judge is criticizing, “and everything to do with the well-known and widely accepted fact that” the application of these provisions did not serve these values well. [89] The report finds that “Justice Camp held a bias, whether conscious or unconscious, in the form of an antipathy towards the present laws governing sexual assault trials”; [104]  indeed, “his bias, whether conscious or not, led him to express disdain for the law in its current state”, [108] to formulate “comments … reasonably understood as being disparaging of legislative attempts to remove discredited myths from sexual assault law”. [182]

What the Report sees ― quite fairly, I hasten to add ― as Justice Camp’s “disdain for the careful development of the law through legislation and jurisprudence designed to bring balance and equality to a process that historically discriminated against women” [276] is, if I understand correctly, every bit as important as his underlying sexism in justifying Justice Camp’s removal. On the one hand,

[s]exual assault law and sexual assault trials are laden with concerns about gender equality, bias and discrimination. Justice Camp’s manifest failure to behave impartially and to demonstrate respect for equality in such a context, over a protracted period of time, has raised considerable public concern about how women who allege they have been sexually assaulted are treated in the judicial system. [287]

On the other,

[w]hen a judge displays disrespect or antipathy for the values that a law is designed to achieve or towards witnesses whose vulnerability is exposed, it encourages a similar disrespect or antipathy in others in the judicial system. Judges are not viewed simply as participants in the justice system. They are expected to be leaders of its ethos and exemplars of its values. … A judge who uses his role in a criminal trial to denigrate values he should respect commits serious and significant misconduct. [289, 291]

The Report makes an additional, and only distantly related point, stating that,

Justice Camp’s conduct … renders it more difficult for judges to make credibility findings adverse to a complainant in a sexual assault prosecution without fear of facing complaints that they too are part of a system rife with bias. [292]

Again, it is difficult to tell what contribution this argument makes to the report’s overall conclusion: is it important? is it necessary? is it sufficient? There is no telling.

* * *

None of the points the Report makes are wrong. But, as I suggested above, because we do not know how decisive each of them is, I worry about their being taken in isolation and used to attack judges in the future. Even if the attacks prove unsuccessful, they are liable to have a chilling effect that would undermine judicial independence.

Take the very last point, about Justice Camp’s conduct contributing to an impression that, to use a recently popular term, the system is rigged. It is very likely true. But how much can it matter? If a court issues a decision which is legally questionable and which provokes a public outcry, this is likely to “render it more difficult for judges” to reach similar outcomes “without facing complaints that they too are part” of a rigged system. But does this mean that any legally questionable, or indeed obviously mistaken, judicial decision is grounds for complaint to a judicial council (as opposed to appellate intervention, which is supposed to be the remedy for errors of law, even very bad ones)? I don’t think this is what the report means to suggest, but on its face, its argument is not limited to “credibility findings adverse to a complainant in a sexual assault prosecution”, and could be applied in all sorts of other situations.

The report’s discussion of judicial “antipathy” for or “denigration” of the law suffers from the same flaw. Is it always true that antipathy to a law that a judge ought to apply ― or perhaps to the values underlying this law ― amounts to bias and hence to misconduct? If so, then opinions such that of Judge Richard Posner in Khan v State Oil, 93 F.3d 1358 (1996) (7th Cir.), much of which was devoted to showing why the relevant Supreme Court precedent was “unsound when decided”, would amount to judicial misconduct (although Judge Posner actually applied the precedent that he was criticizing). And by the way, why is there, if indeed there is, a distinction between judicial criticism of the law, which may (at least sometimes) be tolerable (though this isn’t very clear), and judicial criticism of values underlying the law (which apparently is not)? Judges, after all, are not just sworn to uphold the values of the law ― they are sworn to uphold the law itself, though they sometimes forget this, so if criticism of values suggests that a judge might not do his or her duty, then presumably so does criticism of the law itself.

But perhaps criticism only amounts to bias when the law in question is “laden with concerns about gender equality, bias and discrimination”. Yet what area of the law is not laden with concerns about equality, bias, discrimination ― at least in the opinion of some theorist? (And whose opinion about these matters ought to count?) I am not being snarky here ― I certainly do not mean that the report is wrong about sexual assault law being laden with these concerns, or that various critical theorists are always wrong about the presence of bias in other areas of the law. What I am saying is that if the existence of concerns about bias, or perhaps about one specific form of bias (but then, why this one in particular?), are the limiting principle that defines when criticism of the law is and is not permissible, then the principle is hopelessly uncertain, and cannot do much limiting at all.

Let me make a final point in this vein, which is something of a pet peeve. If, as the report suggests, judicial antipathy to the values underlying existing law is in itself bias against those whom the law is meant to protect, then isn’t vocal sympathy for the values underlying existing law bias in favour of its beneficiaries? And isn’t bias in favour of a party or, as in this case, a witness, just as much a breach of judicial impartiality as bias against one? This isn’t just a theoretical concern: courts do sometimes go out of their way to commend the law, and while I have argued elsewhere that they should avoid doing so, I would not want judges who commit this particular judicial sin to be the subject of inquisition.

* * *

Perhaps I am making a little too much of the Report’s failure to draw clear lines between what is and what is not permissible. Perhaps a little chilling effect forcing judges to err on the side of circumspection in their commentary might even be a good thing. Then again, I doubt somehow that judges who go around the country or even the world telling people that their job is “to think about what’s best for Canadian society” rather than anything so lowly as merely applying the law will be deterred.

 It may be that judicial misconduct is, to some extent, one of those “I know it when I see it” things. But people disagree about what it is that they see. Where I see distressing arrogance, others see business as usual, and vice versa.  We might all agree about Justice Camp, but it is likely enough that we will not agree about some future cases. And while reasonable disagreement is inevitable in law and politics, and arguably something to be embraced rather than feared, there a few areas where clarity and generally understood rules are especially important. The realm of permissible interference with judicial independence is one of them. For this reason, the Report leaves me with a very uneasy feeling.

Sub Lege

I often criticize judges, on this blog and elsewhere. I think it is very important that people who exercise power over citizens be subject to criticism whenever they exercise it unwisely or, worse, recklessly, and still more when they abuse or overstep the powers given them. While the media can, more or less, be counted on to criticize legislators and bureaucrats, from time to time anyway, criticizing judges is difficult, because this criticism has to be informed by technical knowledge and skills, which few journalists possess (though there are worthy exceptions). This means that it is especially important for lawyers, including academic lawyers such as myself, to be the judiciary’s critics. And precisely because I am an unabashed critic of the judiciary that I think I need to do so something that might be outside the scope of my normal blogging.

I want to express my dismay, my horror even, at the way in which judges have been treated in much of the British Press in response to the High Court’s ruling that legislation is necessary before the United Kingdom’s government can formally initiate the process of withdrawing the UK from the European Union. The Guardian has collected the front-page reactions: “Who do you think you are?” “The judges versus the people” “ENEMIES OF THE PEOPLE“. A paper “helpfully” noted that one of the (very distinguished) members of the panel that heard that case is gay. Another is apparently just as suspicious by virtue of his wealth. This is shocking, vile stuff.

I do not feel confident enough to comment on the merits of the High Court’s ruling, but there appears to be quite a strong case ― made for instance by John Finnis and other experts for the Judicial Power Project, as well as by Adam Tomkins ― for the proposition that the Court erred. That’s beside the point ― except insofar as these arguments, some of them quite forceful, remind us that it is possible to criticize judicial decisions without resorting to taunts, insults, and sloganeering. Whether or not the High Court rendered the right decision, it decided the case before it in accordance with its understanding of the law and of its own constitutional role. The argument implicit in the tabloids’ headlines is that the court had to decide otherwise ― having no regard to the law, but only to the supposed will of the people. But that would be a culpable dereliction of duty; that would make judges act like politicians in robes; that would make their unelected, unaccountable status grounds for criticism.

But perhaps trying to discern an argument amidst that fury is already too generous. Look at the words they use. Enemies of the people! In modern history, the phrase was apparently first popularized by Robespierre. In case anyone is wondering what life under the Jacobins was like, they should read Dame Hilary Mantel’s A Place of Greater Safety, which succeeds remarkably at creating an atmosphere of all-encompassing, pervasive fear. That same atmosphere was also characteristic of the other period in history where “enemy of the people” was a label used by power to justify mass murder ― Stalin’s purges. This is the heritage which the English press now claims. Land of hope and glory, mother of the free!

Criticizing courts is necessary if we are to hold on to the inevitably precarious proposition that there is a law apart from what the courts say the law is; that there can be a Rule of Law and not merely a rule of judges. If we are to have, in John Adams’s celebrated phrase, a government of laws not of men, judges, like legislators and ministers of the Crown, must obey the law ― and be called out when they fail to do so. It is for this reason that I am wary of, and do my best to contradict, those who would shut down criticism of the judiciary on the pretense that it risks undermining the Rule of Law. But if we are to have a government of laws not of men, then even the most revered men and women ― which in a democracy means the voters ― cannot stand above the law.

A final historical parallel, perhaps more exact although of greater antiquity, is in order. When in 1607 the King of England thought that he could substitute his own judgment for that of the law, his Chief Justice would not let him:

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it: that the law was the golden met-wand and measure to try the causes of the subjects; and which protected His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debet esse sub homine, sed sub Deo et lege [that the King ought not to be under any man but under God and the law].

Like once their king, the people of England ― or at least the demagogues who would speak for them ― may be offended by being “under the law”. But ― as the examples of the Jacobins and the Bolsheviks remind us ― it is the law that protects them in safety and peace. One has every right to insist that judges too keep to the law. But it is lunacy ― suicidal lunacy ― to wish to with to throw off the law’s protection under the pretense of throwing off its shackles.