Frederick Wilmot-Smith’s first book, Equal Justice, was published by Harvard in 2019.
In November last year, the UK government’s signature policy on asylum seekers was judged unlawful by the Supreme Court. At various other points over the last twelve months, Israel’s Supreme Court declared the Netanyahu government’s judicial reforms invalid; the US Supreme Court was asked (but declined) to disqualify Donald Trump from standing for president; and the...
In his Commentaries on the Laws of England, William Blackstone said that there is a right ‘of applying to the courts of justice for redress of injuries’. This is necessary to ensure that individuals’ rights do not become a ‘dead letter’. Blackstone did not say that the right carried with it an entitlement that the courts would consider the parties’ claims at a hearing: that went without saying. On 1 June, people with claims alleged to be worth up to £10,000 were stripped of that right. Their entitlement to a public hearing depends on ‘judicial discretion’: if a judge decides the dispute is ‘suitable for determination without a hearing’, the parties won’t get one – even if they both want to be heard. The new procedure applies in six courts nationwide as part of a ‘pilot period’ that lasts until 2024.
The judiciary, Alexander Hamilton wrote in ‘Federalist No. 78’, was ‘beyond comparison the weakest of the three departments of power’. Today, in the United States, that is open to question. All it takes to nullify the decisions of the president or the legislature is the decision of five members of the Supreme Court – and there is often no practical way to...
Ruth Bader Ginsburg died 46 days before November’s presidential election. The Senate majority leader, Mitch McConnell, almost immediately announced his intention to confirm a new justice. Just as immediately, he was accused of hypocrisy. Scalia died 269 days before the 2016 election and that, Republicans argued at the time, was too close to the election for it to be right to confirm a successor. What happened to the ‘constitutional principle’ invoked to block Garland’s appointment? There are various arguments. Ted Cruz claims that voters were drawn to Trump by his stance on the courts; Lindsey Graham invokes Democrats’ treatment of Kavanaugh at his confirmation hearing. These ‘arguments’ go nowhere. McConnell, though, pointed to the fact that the Senate in 2016 was ruled by ‘an opposite party’ to the president’s. The real principle here is power: whoever has control of the Senate decides whether its advice and consent will be given. The Republicans were in charge in 2016 and they are in charge now: they can exercise their power as they wish.
The Conservatives have been in power since 2010: if there is a flaw in the sentencing rules, it is their fault. Those rules aren’t the root problem, though. Sudesh Amman, on the government’s new proposal, would have been released a year or so later, just as eager to kill. More important is what happens after a sentence is passed, in prison and on probation.
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