Legal culture wars are a necessary nuisance

The death of Ruth Bader Ginsberg, the US Supreme Court Justice who died a few days ago, and the scramble to replace her before the US election at the beginning of November, has nothing to do with us - apart from one feature, which has echoes here. 

The argument over the procedure for her replacement has seriously divided opinion along partisan lines.

Some argue that, since the Republicans refused until that year’s election was over to vote on Barack Obama’s replacement for Justice Antonin Scalia, which also took place in an election year, the consequence should be that those same Republicans should now delay the Bader Ginsburg replacement until after this year’s election.

Others, seeing the opportunity to tilt the balance in the court decisively in favour of conservatives, and so keeping it conservative for decades, consider that end as crucial, and find reasons to differentiate what happened in 2016 from what needs to happen in 2020.

In other words, the never-ending culture wars decide which view a person takes. The replacement of Supreme Court justices has always been subject to high passions in the US, and so the current row should not be surprising.

But this is now a feature which we share with Americans, not specifically in relation to the selection of judges - although there was a brouhaha over the composition of our own Supreme Court during the Brexit and prorogation cases – but in relation to how we see everything, including legal developments. Our own culture wars creep into nearly every response.

The continuing fuss over the Internal Market bill is a good example. From a lawyer’s standpoint, is the government’s own confession that it will breach international law the act of a patriotic government standing up to a bullying international organisation we are trying to leave, and justifiable because it hasn’t happened yet, or because the EU has a history of breaking its own internal agreements, or for some other reason? Or is it a move we should never contemplate if we wish to maintain the rule of law, because of fixed principles and regardless of political considerations?

We had similar arguments over the prorogation of parliament last year.

For some lawyers at any rate, the answers appear to depend on whether you are a Brexiteer or a Remainer.

This gives rise to some important questions. First, is it strange that the culture wars should enter into matters which many see as already settled by legal principles? Second, is there any area of life which is exempt, or should be exempt, from political controversy, and where settled principles should rule?

Science used to be considered a settled area. But we have seen during the pandemic how politicised the scientific response has become. ‘Following the scientific advice’ has become a much mocked phrase. Are masks a sensible medical precaution, or an unjustified invasion of our privacy? Is the Swedish model of containment (some restrictions, no lockdown) a careless throwing away of lives or the best way of living with the virus in the long-term? Is coronavirus avoidance more important than cancer treatment? More important than the economic health of the nation?

I have not included theories from the wilder fringes, involving 5G, anti-vaxxers, microchips, and the enslavement of populations.

The same is beginning to happen with the law. Should we abolish the Supreme Court because it gives too much power to unelected judges? Should certain human rights be suspended when they clash with a government’s political wish? Does the supremacy of parliament mean that it can decide to do anything, even breaching an international treaty to which the UK has signed up?

There are several separate questions here. First, were these matters ever settled, or has there been continuing argument over them for centuries? I think this: to see the culture wars as some kind of American import unknown to us is false. We have always been arguing over fundamental legal principles. A good example was the long-running question of whether giving women legal agency over their property, their political choices, and indeed their bodies, was a matter that previous legal principles could accommodate.

Second, is it not a good thing that there is dispute? Legal principles are dead when we do not argue over them. Debate, even fierce debate, is exactly how people learn to go forward. The view of legal principles as absolute and unchangeable in terms of their extent and meaning is not only wrong but unhealthy. Our ideas change, and so inevitably must the application of our principles.

I very often wish that the controversies would go away, since they are exhausting. The thought of the coming fight over the Ruth Bader Ginsburg replacement, to return to my starting point, fills me with dread. But at the same time, argument is how we go forward.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member nor on behalf of the Law Society