Around the world, there are numerous examples of backlashes against judicial power. As courts become more assertive in their use of public law to constrain political power, political elites often respond by curbing (or threatening to curb) judicial power. In some contexts, the backlash against judicial power has led to a major and controversial restructuring of the relationship between the judiciary and the political branches (e.g., Hungary and Poland). This paper situates recent threats to the power of the UK Supreme Court in comparative perspective. The paper considers: a) the extent to which the contemporary discourse of judicial power in the UK employs certain generic court-curbing tropes; and b) the extent to which this discourse may be changing to justify a new phase of court curbing directed, in particular, at the UK Supreme Court.
Very often judging is viewed as a collective endeavour, with the the decision of ‘the court’ as a whole forming the basis of the law. Equally as important, however, are the contributions of each judge acting as an individual unit. This paper seeks to examine to what extent ‘individuality’ comes through in the UK context by trying to measure judicial behavior (in terms of both case outcomes as well as reasoning) on the UK Supreme Court, using a ten-year dataset of all cases handed down from 2009 to 2019. In particular, the paper considers whether or not the judges demonstrate (noteworthy) patterns of individual judicial behavior and how those patterns vary significantly across different areas of law.
This paper presents findings from the author's recent book – Values in the Supreme Court: Decisions, Division and Diversity (Hart 2020) – examining the significance of values in Supreme Court decision making. Drawing on theories and techniques from psychology, it focuses on the content analysis of judgments and uses a novel methodology to reveal the values that underpin decision making. The book centres on cases which divide judicial opinion: Dworkin's hard cases 'in which the result is not clearly dictated by statute or precedent'. In hard cases, there is real uncertainty about the legal rules that should be applied, and factors beyond traditional legal sources may influence the decision-making process. It is in these uncertain cases – where legal developments can rest on a single judicial decision – that values are revealed in the judgments.
This paper presents findings from the author's recent book – A Court of Specialists: Judicial Behavior on the UK Supreme Court /(OUP 2020). The nature of the UK's court system means that judges arrive on the court as specialists in one or more areas of law (such as commercial law or family law), or even systems of law (the court's Scottish and Northern Irish judges). The book shows that specialisms markedly affect behavior on the court. Specialists in an area of law are more likely to hear cases in that area, and are more likely to write the lead opinion in that area. Non-specialists are less likely to disagree with specialists, and so disagreement is more likely to emerge when multiple specialists end up on the panel. Although political divisions between the justices do exist, these differences are much less marked than the divisions between experts in different areas of the law. The best way of understanding the UK Supreme Court is therefore to see it as a court of specialists.