What's Old Is New: The UK Supreme Court

Tuesday, January 5, 2010 - 01:00
Isaac Lidsky

Editor: Please tell our readers a little bit about your background.

Lidsky: I graduated from Harvard Law School in 2004 and then clerked for Judge Thomas Ambro on the U.S. Court of Appeals for the Third Circuit. After that I joined the appellate staff of the civil division of the U.S. Justice Department through its honors program. It was a phenomenal job. I spent three years there litigating appeals in the federal circuit courts on behalf of the U.S. government before leaving to clerk for the U.S. Supreme Court. I was hired by retired Justice O'Connor and also loaned by her to Justice Ginsburg for the term. I helped Justice O'Connor with her work on the circuit courts of appeal and with speeches and papers while serving as Justice Ginsburg's fifth clerk. I moved to London this past September. In October, I received an invaluable introduction to the UK legal system as one of the American Inns of Court's four Temple Bar scholars. I then began my current position with Akin Gump, heading to New York to argue an appeal in the Second Circuit about a week after I started. It was quite a transition.

Editor: Let's turn to the new UK Supreme Court and start with a description of its jurisdiction.

Lidsky: Like our Supreme Court, it's the highest court in the land. There are some similarities to our federal system in the sense that there are parallel courts in Scotland, Wales and Northern Ireland, and with the exception of criminal cases from Scotland, generally the Supreme Court is the court of last resort for the UK.

Editor: How does a case get to the court?

Lidsky: There is a process similar to ours, where you petition the court to take the appeal. A notable difference is that lower appellate courts have the authority to certify a case for appeal, forcing the Supreme Court to take it. That is a power that is rarely exercised, but its existence is significant. There is also something akin to mandatory jurisdiction in that the Supreme Court is the current incarnation of what used to be the Privy Council, and in that capacity it has mandatory appellate jurisdiction over certain disputes arising from Commonwealths. Those disputes comprise about half the Court's docket and consist of a lot of criminal cases, particularly death penalty cases.

Editor: Why is it called supreme?

Lidsky: I don't know. They are not the first to choose that name - maybe they just liked it.

Editor: It has an even number of Lords Justice, but I understand that only an odd number of justices sit in any one case.

Lidsky: When it is fully staffed there will be twelve Lords Justice. Right now there are eleven. They sit in panels; the entire Court doesn't sit on each case. Usually they sit only in panels of five, sometimes seven and rarely as many as nine. Actually, the week that I spent at the Supreme Court in the chambers of Lord Walker they heard a case where they sat nine, and that was considered a very big deal. It depends on the importance of a case, and if they feel like it's likely to be an important and close case, they want to benefit from more views.

Editor: Are we going to be seeing a single opinion coming down, or as was often the case in the Law Committee of the House of Lords, three or five different "speeches"?

Lidsky: They have already moved in the direction of acting as a court. For example, the first judgments they announced this term were judgments of the Court, which, on the one hand, is a semantic difference, but also what I think is an important and significant change. I would call it progress.

Editor: When it's an opinion of the Court, is it signed?

Lidsky: Yes, they are now following the practice where justices will sign other justices' opinions.

Editor: Do they admit dissenting opinions?

Lidsky: Absolutely.

Editor: So they've moved a step or two toward uniformity.

Lidsky: Yes, of course we want uniformity. Function follows form in some ways. They used to produce the speeches of a set of co-equal legislators on a committee, and that's fundamentally different from the opinion of a court. That's truly significant. I was struck when I arrived here by how blasé people were about the change. I don't just mean people on the streets, but also barristers and the judiciary. The overriding sentiment was an understated feeling that, "We have a new building, and the structure is a little different, but in practice we'll operate the same way we have been operating for centuries." My colleagues in the States, co-clerks and Justices of our Supreme Court, tend to think this shift from the Law Lords to the new UK Supreme Court is much more significant than people here do. Here the most common response is, "Yes, of course we want an independent judiciary. But in effect, we have had an independent judiciary for a long time now. It makes good sense to make formal what we have had for a long time. We are going to make that formal by giving it a new building and by giving it a new name. But that's about all we're doing." I was joking with the President of the UK Supreme Court, Lord Phillips, that he has an opportunity to be the UK's Chief Justice Marshall. That's probably an overstatement, but I think the change is far from trivial.

Editor: Given the famous unwritten British constitution, Magna Carta and all that, is this a constitutional court?

Lidsky: The simple answer is no, the court is a result of legislative reforms. The constitutional reform legislation of 2005 created the new UK Supreme Court. It was legislation that was passed; it wasn't an amendment to a constitution, because of course they don't have a written constitution.

Editor: Can the UK Supreme Court determine that subsequent legislation is unconstitutional?

Lidsky: Our principle of judicial review as a constitutional doctrine is for them a function of legislation, and what the Court can or cannot say about legislation and what practical effect that has is itself governed by legislation that can be changed by Parliament.

Editor: How does this work with the UK's EU treaty obligations and the European Court of Justice? If there's a conflict with UK legislation, does the Supreme Court have to decide that, under the concept of subsidiarity , the UK law is not in conflict with various accords reached under the framework of membership in the EU? Alternatively, does the UK Supreme Court sometimes have to say this is not for us to decide, this has to go to the European Court of Justice?

Lidsky: There is a similar answer. The supremacy of EU law stems not from a constitutional provision - as does the supremacy of international treaties in our system, for example - but from legislation. With the European Communities Act of 1972, Parliament gave effect to its treaty obligation to submit all domestic laws to the supremacy of EU law - as construed by EU courts. UK courts routinely strike down UK laws as incompatible with EU law. There is some flex in the joints, however. When possible, the courts prefer to construe a challenged domestic law in such a way as to render it compatible with EU law rather than invalidate it. Presumably, Parliament could change all of this by amending the 1972 Act.

The implementation of the European Convention on Human Rights (ECHR) is different. In the Human Rights Act of 1998, Parliament did not give the courts power to strike down primary legislation as violative of the UK's human rights treaty obligations. At most, a court can issue a "declaration of incompatibility," which does not bind Parliament, but creates very strong political pressure for it to amend the law. Regardless of the legislative response, a litigant can go to the European Court of Human Rights in Strasbourg in search of a remedy.

Editor: Is it your sense that the Court will try to interpret ECJ decisions so as to harmonize them with UK law to avoid conflicts? How much have they moved away from being legislators?

Lidsky: I don't think it is fair to call them legislators. It's odd in the sense that there are areas of law where the UK has in effect submitted its Supreme Court to be bound by the precedents of international courts. That's a foreign idea to us in the States, but it's a fact of life in the legal system here. So in certain respects, ultimately, the Supreme Court is not "Supreme." I'll give you examples. The Supreme Court is obliged to refer certain issues of EU law to the ECJ. And it is similarly obliged to "take into account" the decisions of the European Court of Human Rights. Most significant, the ECHR can grant a litigant relief from a Supreme Court judgment if the ECHR concludes that the decision runs afoul of international law.

Not surprisingly, the Supreme Court sometimes pushes back a bit. For example, it recently refused to refer an issue to the ECJ, holding that the reference was unnecessary because the proper construction of the law at issue was clear. It did so notwithstanding the fact that the lower court unanimously concluded that the statute "clearly" meant something else. Two of the five justices dissented. Still, the majority resolved the construction of the law for itself. Similarly, in rare occasions, the Court will "take into account" an ECHR decision and explicitly disagree with it! I wouldn't call that legislating. It's an assertion of authority that stems from the unique position in which the Supreme Court finds itself. There is no analogy in our system.

Editor: Once the Court is fully staffed, the justices will have to retire at age 70. What do you hear from the Bar and the Law Society about the wisdom of a fixed retirement age?

Lidsky: I have heard near universal praise for the mandatory retirement requirement. The trend has been to reduce the retirement age.

Editor: The Court's first case dealt with terrorists' assets.

Lidsky: I think its biggest case thus far was its third , the Jews' Free School case. JFS's admissions criteria give preference to Jewish applicants. They use the religious definition of Jewish status, which Jews believe is inherited through matrilineal descent and is independent of practice or belief. The question is whether this test for Jewish status is a religious classification that may be employed by a religious school, or a racial classification that is never permissible. The Court held that the admissions criteria unlawfully discriminated on the basis of ethnicity.

Editor: Final comments?

Lidsky: We have this vision of robes and elaborate wigs in the English courts, but because the Law Lords were a legislative committee in the House of Lords, they sat around a table and wore no robes when they met. It was like testifying before a committee in the Hart Senate office building on Constitution Avenue. They've kept that tradition; the justices don't wear robes or wigs and there's no elevated bench. They just sit around a big table, on the same level as everybody else, in their suits. It is a good thing they are comfortable, because their oral arguments are much longer than ours; where a case is argued in our Supreme Court for precisely one hour, here it can last three or four days.

It's a very exciting time. My wife, Dorothy, and I were at a reception offered by the U.S. ambassador for Chief Justice Roberts, Justices Scalia and Breyer and all the new UK Supreme Court Lords Justice. There were speeches and the Chief Justice presented his counterpart, the President of the UK Supreme Court, Lord Phillips, with a piece of marble that had been extracted from our Supreme Court. It was a symbolic and significant occasion in the history of the common law. For Dorothy and me, like our time here overall, the event was quite memorable.

Please email the interviewee at ilidsky@akingump.com with questions about this interview.