What do these Disagreements Reveal about Decision-making in our Court of Last Resort?
| Author | Frederic Reynold |
| Pages | 125-145 |
PART FIVE
WHAT DO THESE DISAGREEMENTS REVEAL ABOUT DECISION-MAKING IN OUR COURT OF LAST RESORT?
Before considering what can be gleaned from the nature of the disagreements which have been discussed in this book, it is worthwhile at this point to take a brief sideways glance at the workings of the Supreme Court of the US, and see what kind of disagreements tend to occur in that particular jurisdiction. After all, the example of the US Supreme Court loomed large in the debate which preceded the decision to create a Supreme Court in the UK and to jettison the former Appellate Committee of the House of Lords, and had been prayed in aid by both supporters and opponents of the change. On the one side of the debate fears had been expressed that, like in the US, the Supreme Court would become a polarising institution, and act as a buffer or brake on executive and governmental powers; and were this indeed to happen, it would be a development of great constitutional importance and one which would pose great dangers. On the other side of the debate, it had been argued that on the basis of the US experience, the creation of a Supreme Court would bring transparency, democracy and accountability into a part of our constitutional arrangements hitherto occupied by the distinctly anomalous and – from the general public’s point of view – relatively obscure Appellate Committee of the House of Lords.
(1) DISAGREEMENTS IN THE US SUPREME COURT
Several factors have combined to make the US tradition and experience rather different from our own. The US Supreme Court has pre-eminently served the function of being a constitutional court, being, together with the Presidency and Congress, one of the three so-called pillars of the Federal constitution, and as such has been commonly regarded as a source of political power. (Unlike our own court of last resort, it has the power, which it has frequently exercised, of striking down primary legislation.) Its
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members are appointed by what is perceived to be very much a political process, having been nominated by the President and confirmed by the Senate following a public hearing. Nominations have invariably reflected the thinking and political complexion of the President who happens to be in office at the time the vacancy has arisen, and have quite frequently provoked controversy and, on some occasions, a certain amount of ridicule.
Against this background, it is not surprising that disagreement and dissent are taken for granted as characteristic features of the Court, and that such dissent is acknowledged as an important part of the democratic process. Nor is it surprising that disagreements have in the main tended to be on predictable ideological lines.
not there should be strict limits to judicial law-making in a democracy such as that of the US. Two recent decisions of the Court illustrate the continuing relevance of these rival schools of thought.
In 2002 Congress passed the Bipartisan Campaign Reform Act. This prohibited, within 30 days of a primary election and 60 days of a general election, corporations and unions funding – from their own sources of revenue – televised election advertisements which mentioned a candidate’s name. In 2009 the constitutionality of this ban was challenged in the Supreme Court on the ground that it violated the First Amendment (the amendment which guarantees freedom of speech). By a majority of five to four the Court held the ban was indeed in violation of the First Amendment.
Justice Kennedy, delivering the lead judgment on behalf of the majority, declared that there was:
simply no support for the view that the First Amendment, as originally understood, would permit the suppression of political speech by media corporations, The Framers may not have anticipated modern business and media corporations, [but] television networks and major newspapers owned by media corporations have become the most important means of mass communication in modern times.
In his view, the First Amendment could not be understood to condone the suppression of freedom of speech “in society’s most salient media.” The Amendment had been a response to the repression of speech and the press that had existed in England, and the heavy taxes that were imposed on the press in the colonies. When the founding document was published, “speech was open, comprehensive and vital to society’s definition of itself ... .” Because the Framers did not have certain types of “speakers” or modern forms of communication in mind, it did not mean that those speakers and media were entitled to less First Amendment protection than those speakers and forms of communication which existed when the Bill of Rights was adopted. The prevention of corruption was not a sufficiently powerful consideration to displace freedom of speech.
The lead judgment on behalf of the minority was delivered by Justice Stephen. He dismissed as having simply “rhetorical appeal” the proposition that the First Amendment precluded regulatory distinctions based on a speaker’s identity, and specifically its identity as a corporation. That proposition failed, for example, to answer the question: when can a corporation engage in electioneering that some of its shareholders oppose? It
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was fallacious to equate corporations with natural persons: case law had already established a distinction between corporate and individual campaign spending. There was not the slightest doubt that what the Framers had in mind was the free speech of individual Americans: “Unlike our colleagues”, observed Justice Stephen tartly, “they had little trouble from distinguishing corporations from human beings.” Outside the corporate form an individual shareholder could do as much electioneering as he pleased. The prohibition under challenge hardly amounted to a categorical ban on corporate speech. Furthermore, the Government has routinely restricted freedom of speech when it was perceived to be in the public interest to do so, as in the case of the Armed Forces and its own employees. The legislation which the majority had declared to be unlawful reflected the common sense of the American people, who recognised a need to prevent corporations from undermining the integrity of both federal and local government. It was, he said, “a strange time to repudiate that common sense”.
Thus, according to the originalist majority, the Framers did not allow for, or even hint at, any distinction to be drawn in the drafting of the First Amendment between corporations and individuals, and that is what really mattered. The “pragmatic” minority on the other hand argued that freedom of speech had to be tempered with what could clearly be shown to be in the public interest, and banning the funding by corporations of television advertising over a specified period of a campaign was hardly a case which called for the invoking of the First Amendment.
The second case was the unsuccessful challenge in 2012 to President Obama’s healthcare legislation. There were in fact two issues to be determined, but for present purposes it is sufficient to focus on just the one: this was whether the provision in the Affordable Care Act, which provided that those who did not comply with the...
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