Values in the Supreme Court: Decisions, Division and Diversity by Rachel Cahill‐O'Callaghan (Oxford: Hart Publishing, 2020, 232 pp., £54.00)
| Author | Lewis Graham |
| DOI | http://doi.org/10.1111/jols.12240 |
| Date | 01 September 2020 |
| Published date | 01 September 2020 |
VALUES IN THE SUPREME COURT: DECISIONS, DIVISION
AND DIVERSITY by RACHEL CAHILL-O’CALLAGHAN (Oxford: Hart
Publishing, 2020, 232 pp., £54.00)
Few modern-day lawyers, and even fewer in the socio-legal tradition, now
believe in what Pound termed ‘mechanical jurisprudence’, whereby judges
objectively and impassively analyse the law in order to arrive at the single
correct legal answer hidden within. Not only does this idea do a great
disservice to the complexity of the law, which is filled with gaps, rife with
ambiguity, and full of opportunities for the exercise of discretion, but it also
mischaracterizes the essential nature of judgment making. For better or for
worse, humans cannot make totally objective judgments, divorced from their
experiences, values, and preferences. Whilst it is comforting to think that
judges are somehow different in this regard, we should heed the words of Lord
Dyson: ‘it may be surprising [but] occasionally we need to remind ourselves
that judges are human beings [who] respond to problems in different ways.’1
Indeed, as long ago as 1943, Lord Wright opined that
the judge does not approach the case with a blank mind. Subconsciously or
consciously, trained mental processes are involved, rules learned in the past
function in his mind, his ownpast experience and his past reading of other cases
all combine to lead to a judgment.2
Awareness of this truth has progressed beyond the theoretical level. A
significant body of scholarship has utilized robust empirical methods to
show that judges are influenced by a whole range of factors (often, but not
exclusively, ideological in nature), and that there are, at least in some cases,
significant differences between the approaches of individual judges of a given
court. Perhaps unsurprisingly, given the hyper-partisan nature of its Supreme
Court, the greatest volume of scholarship in this regard comes from the United
States. By contrast, in the United Kingdom, we have generally been far less
attuned to this sort of research.
Rachel Cahill-O’Callaghan’s Values in the Supreme Court is one of the
most important and refreshing exceptions to this trend, joining the small but
increasingly impressive list of works which employ empirical methods in
order to analyse how our own courts work in practice. Her aim is to challenge
the ‘myth of objectivity and impartiality’ (Prologue) of the United Kingdom
Supreme Court (UKSC), and to unpack the ‘unseen diversity’ of the judicial
minds therein (p. 127). In this, I am happy to say, she undoubtedly succeeds.
Rather than relying on party politics or vague notions of ideology, the
author instead focuses on values. Drawing heavily on the work of social
psychologist Shalom Schwartz, she proposes that all decision making is
‘anchored’ in the personal values we hold (p. 10; p. 12). In particular, it
1 Lord Dyson, ‘The Shifting Sands of Statutory Interpretation’ Statute Law Society
Lecture, 9 October 2010, at 3.
2 Lord Wright, ‘Precedent’ (1943) 8 Cambridge Law J. 118, at 138.
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© 2020 The Authors. Journal of Law and Society published by John Wiley& Sons Ltd on behalf of Cardiff University (CU).
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