Nominees to the US Supreme Court go through a gruelling confirmation process that looks increasingly like a circus. Their names, families, and personal history are front-page news, allegations are hurled, abuse is flung, and death threats are issued. This is partly due to a polarised and fractitious public square, but it also reflects the high stakes involved in appointing judges to the highest law-making authority in the land, one that effectively wields political power and where confirmation hearings are the only opportunity to match that power with some form of democratic accountability.
But while people around the world come to know the names of those judges in the US, it’s unlikely that even Kiwis could name the members of our Supreme Court bench. That reflects the very different role that New Zealand’s courts have in our constitution—or at least, the role they’re supposed to have. A recent report from the New Zealand Initiative raises credible concerns that our Supreme Court judiciary is already moving away from this role in favour of a more political approach, with implications for cases involving fundamental rights and for our entire constitutional order.
The report by Roger Partridge identifies two problems with recent Supreme Court decisions. The first is that they are “stretching or even ignoring” the clear language of laws passed by Parliament that “the Court does not like.” Courts are supposed to interpret and apply Parliament’s statutes because that body, unlike courts, is democratically elected and accountable to voters. That’s why Parliament is sovereign, the highest authority, in the constitutional structure we inherited from Britain.
Instead, says Partridge, the Supreme Court “is effectively rewriting legislation to align with its view of the demands of justice.” This can occur when the Court invokes section 6 of the New Zealand Bill of Rights Act 1990, which says that statutes should be interpreted consistently with the rights in that Act wherever possible. But Partridge argues this has been used to “side-step” Parliament’s intention. So has the practice of using international law to interpret domestic law because when the former changes, the latter does too. Partridge cites Chief Justice Winkelmann’s decision on the meaning of the ‘three strikes’ law in Fitzgerald v R: “the meaning arrived at cannot amount to a refusal to apply the enactment, and nor can it amount to treating the enactment as invalid, ineffective, impliedly repealed or revoked.” That is a low bar, one that creates a lot of licence for judicial creativity.
While the first problem relates to statutes passed by Parliament, the second relates to the common law. This is the body of law developed by judges incrementally and organically, in accordance with rules about precedent, applied to resolve disputes brought before the courts. By contrast, Partridge argues, “[t]he Supreme Court has come to believe its role is to ‘develop’ the common law to give effect to its perception of contemporary social values and attitudes.”
As a result, courts are likely to impose their own views on policy issues, and not merely legal matters. As Partridge points out, the courts are not equipped to do this. Unlike Parliament, they do not have wide fact-finding abilities or the kind of democratic accountability that provides legitimacy. Judges’ views are no more likely to be neutral than politicians’. Partridge quotes Justice Glazebrook to this effect: “until we complete the process of decolonisation, the rule of law can only be considered a work in progress. The new place of the Treaty and Tikanga in the law is a start”. These are the sorts of contentious and consequential questions that should be resolved by parliamentarians.
Partridge’s report draws on a paper presented earlier this year by eminent King’s Counsel, Jack Hodder. Raising similar concerns, Hodder argues that, “In our democracy, the courts have no mandate to become agents of social change.” Speaking of the Court’s concern to ‘develop’ the law, he notes that this “has connotations of a journey towards some destination, and of a theory or plan of how to get to that destination. But no such destination or plan would be consistent with the expected impartiality of the judicial role in applying accessible and predictable law.” Social values are, of course, not uniform so Hodder asks, “By what logic or training or experience, and by which criteria, do the courts identify and weigh inconsistent ‘values’ in applying and developing the common law?”
After diagnosing the problems, Partridge moves on to solutions. He recommends, for example, amending the Legislation Act 2019, which says in section 10 that, “The meaning of legislation must be ascertained from its text and in the light of its purpose and context.” The final term, “context,” has been interpreted to mean ‘contemporary context’ and thus to justify ‘updating’ Parliament’s intention. This would be addressed, says Partridge, by adding “at the time the legislation was enacted” at the end of the section. He also argues that the interpretive direction in section 6 of the Bill of Rights Act should be repealed or at least amended to prevent “unreasonable” interpretations, and that Supreme Court judges should be appointed for fixed terms to encourage modesty about the purpose and constitutional significance of their role.
Increasingly political judgments are likely to get an increasingly political response from Parliament, which doesn’t bode well for the relationship between these branches of government. Moving in the direction Partridge recommends would restore the balance between them and help to prevent the rise of the kind of politicised judiciary that we see in the United States. Helpfully and hopefully, Hodder points out that these trends represent “a relatively new tension”. Perhaps we can be optimistic that they can be reversed. If not, we can expect, as Hodder says, “an intense focus on the identity of judges and appointment processes” as “the minimum democratic price payable” for the rise of so-called “hero judges”.
Listen to Roger Partridge and Professor Richard Ekins discuss the report. (Apple) (Spotify) (Soundcloud)
Watch Roger Partridge and Jack Hodder discuss the report and answer Q&A:
