A Gamble on Judicial Power: Understanding the U.K. Supreme Court’s Decisions in Miller I & II

When political crises morph into legal disputes, courts often tread lightly, fearing the results if powerful political interests align against them. Yet these moments of political crisis can also provide a court with opportunities to reaffirm or enhance its role in the constitutional system. When presented with the Miller I litigation following the 2016 referendum on Brexit, the U.K. Supreme Court was handed “a political bombshell.” Would the case harm or enhance the Court’s legitimacy? Miller I seemed to go well for the Court. In 2018, Lady Hale, the then President, described her court as looking “more and more like a constitutional court,” and suggested that Parliament Square be renamed “Constitution Square.” The Court’s 2019 decision in Miller II, however, has resulted in threats of jurisdiction stripping and the Johnson Government’s promise to “take back control.” This paper will assess Miller I & II in comparative perspective to shed light on the Court’s choices.