Hoover Daily Report

Jason Smith and the Court

via Wall Street Journal
Wednesday, March 24, 2010

The Wall Street Journal

Jason Smith and the Court

A single case could reshape the U.K.'s new Supreme Court.


As the Supreme Court considers the explosive "Jason Smith question"—whether combat soldiers can sue the Ministry of Defense for breach of their human rights—one wonders what the case portends for future relations between Britain's Court and its governments.

Is it instructive to look at the U.S., where examples abound of conflict between the executive and the highest echelon of the judiciary?

The U.S. Supreme Court and President Obama are locked in a sumo grip over a recent decision that lifted restrictions on campaign finance. So unhappy was Obama with the ruling that he lambasted the court for its decision in his State of the Union address. The judges were in the audience, squirming, and as cameras panned to them, one was seen to mouth his disagreement ("Not so!") in response to the president. The chief justice described the episode as "very troubling."

As spats between presidents and supreme courts go, this is all rather tepid. FDR was at war with his Supreme Court; Jefferson, Lincoln, Jackson, Eisenhower and Nixon all experienced times of intense tension with their courts. And Teddy Roosevelt once declared, of one of his own Supreme Court appointees, that he could "carve a judge with more backbone out of a chocolate éclair."

Is there the promise of similar drama with the U.K.'s Supremes? Perhaps. The move to a Supreme Court did, after all, increase the likelihood that constitutional conventions that had led generations of Law Lords to be circumspect on "political" issues—conventions so beloved of Bagehot and Dicey—would be eroded.

The Supreme Court will, surely, evolve into a freer institution than the Appellate Committee of the House of Lords, and we might have seen some immediate feistiness if Lord Bingham had still been around. But the Court is staffed by people who were Law Lords barely six months ago, so it could well take a generational turnover before we find a radical difference.

On the other hand, as in the U.S., it could take but a single case to wreak a revolution. Just as John Marshall transformed the U.S. Supreme Court at a stroke with Marbury v. Madison, one activist ruling from the British Supremes could tear up the conventional rule-book.

The new Supreme Court does not, of course, have any greater legal powers than the old House of Lords. Its judges are not empowered to strike down statutes in the way the U.S. Supreme Court does. Any serious changes, then, will result from a change of expectations as to the court's role—in particular, the expectations of the public, of the profession, and, most piquantly, of the judges themselves.

One gets the sense that the court could soon be in uncharted territory—if the judges so wish. And the poor dead soldier—Jason Smith—could be its first cartographer.

Mr. Varadarajan is a writer for the Daily Beast, a fellow at the Hoover Institution, and a professor at New York University's Stern Business School.