In our second roundtable on the challenges faced by modern courts, Courts Under Stress, organised by the Oxford Global Society on 8 June, focused on the various external pressures which impede the independent and efficient functioning of courts. The panel consisted of Goodwin Liu, Associate Justice of the California Supreme Court; Kate O’Regan, Emeritus Professor of Human Rights at the University of Oxford and a former judge of the South African Constitutional Court; and Robert Sharpe, Distinguished Jurist in Residence at the University of Toronto Faculty of Law and a former judge of the Court of Appeal for Ontario. The discussion was moderated by legal commentator Joshua Rozenberg.
Courts the world over are struggling with attempts to undermine their authority. One of the most prevalent stressors is executive overreach, which has, in many cases, come about as a result of the growing power of the executive. As outlined by O’Regan, this exaggeration of the role of the executive is a symptom of democratic backsliding, brought about by changes to the constitutional frameworks of democratic governments especially over the past two decades. As executive branches have become stronger, attacks on courts and their authority have increased, from changes to the ways in which judges are appointed to failing to honour judgements. An additional challenge for modern courts is the ability to discern when an event which appears to undermine the court is in fact a symptom of democratic backsliding, or rather a legitimate intervention on the operation of the judiciary.
However, executive pressure on the judiciary is not an exclusively 21st-century challenge. Liu observed that in the US, in spite of legislative supremacy being written into the constitution, the president has nevertheless emerged as the pre-eminent figure in US governance – much before the term(s) of the present incumbent. The power of the executive has increased both in various periods of crisis and, since the New Deal, through delegating policy-making responsibilities to agencies which fall under the executive branch. Furthermore, the rise of mass media – particularly social media – has given presidents the ability to communicate with the public in a way that is direct and unfiltered on the one hand, and not available to the legislative and judicial branches, as units, on the other. Ideally, the US judiciary would require the support of the legislative branch to curb an emboldened executive branch and ensure the separation of powers, but unfortunately, the effectiveness of Congress has been significantly impeded by its increasing polarisation.
The heavily partisan nature of US politics can create other pitfalls for the judiciary. The judges of the Supreme Court are appointed by the president, which raises the question of whether a Supreme Court where the majority of judges are appointees of a president representing the party in power will be reluctant to curb the executive. Liu highlighted, however, that the US Supreme Court is a discretionary review court and therefore has a limited docket, and that the main body of work in checking executive power happens in the lower courts. Nevertheless, the Supreme Court does have a duty to assume the correct posture: it must communicate to the public its firm stance against executive overreach, especially through its backing of lower courts, and avoid projecting a cautious or non-committal attitude towards misconduct. Moreover, Republican-appointed judges have been known to stand up against the incumbent president. Liu maintained further that, in the US, judges do have an instinct to preserve and protect the integrity of the judiciary over and above any political alignments, and O’Regan noted that in South Africa, too, courts have made decisions against the executive, demonstrating that they do not fear intervention when necessary.
The Canadian justice system, not nearly as politicised as its US counterpart, faces different pressures. Sharpe highlighted the lack of resources and increasing involvement in highly controversial issues. Regarding the former, the justice system is beset by a culture of delay which sees many criminal cases dismissed. Moreover, legal costs are high and litigants often struggle to understand the judicial process, or access it in the first place. Regarding the latter, courts are called to pronounce on matters that until recently did not fall within the traditional judicial function of dispute resolution. Topics such as abortion, medical assistance in dying, prostitution, health care and the environment are delicate and divisive, and therefore bound not only to draw criticism and controversy, but also to involve the judiciary in political debate and make it vulnerable to populist actors. While the Canadian courts have, in Sharpe’s view, been able to maintain credibility as impartial decision-makers, they must continue to be vigilant and recognise the political nature of many of the cases which end up in the courtroom, ensuring that their decisions are based on legal principles instead of personal or political preferences.
Turning to public awareness and understanding of the operation of courts, there is a distinction to be made between familiarity with the judges themselves and familiarity with how they operate. In Canada and South Africa – as well as in the UK, as pointed out by Rozenberg – the public is much less aware of the identities of their judges than in the US. However, although US courts enjoy extensive media coverage, Liu noted that it is heavily focused on the Supreme Court and tends to be polarised. In consequence, courts continue to be a very poorly understood institution in the US, and similar observations were made by Sharpe and O’Regan with respect to Canada and the UK. When asked whether the introduction of confirmation hearings, as practised in the US, would make the public more engaged with the judiciary, O’Regan referred to the challenge of protecting their correct purpose, which is to determine whether a candidate has the requisite skills and a clear understanding of the nature of the job. Complications arise when candidates are asked improper questions, such as how they would decide on a particular case, or – Liu added – questions which position nominees in a partisan manner.
The panellists agreed that there is a general lack of understanding of how the judiciary works in Canada and the UK, and even the US, which includes civics in its national curriculum. However, while Liu admitted that the operations of the judicial system are inherently non-transparent – a feature which will inevitably cause the public to feel disconnected – the panel suggested ways in which the judiciary may yet demystify some aspects. Liu mentioned various access to justice mechanisms in the US, which aim to educate people about their rights and make the legal process easier to navigate. He also expressed a desire to see more coverage of the lower US courts, where the public would be exposed to a more ‘ordinary’ system less fraught with polarisation. O’Regan further emphasised the importance of plain and clear language when communicating with the public. This is, admittedly, not always easy, as courts deal with complex questions; but it is more possible and achievable than many would acknowledge.
Looking to the future, both Sharpe and Liu acknowledged the possibility of improvement in access to justice that technology and AI can bring. However, all panellists agreed that the work of courts must continue to be performed by human actors. O’Regan closed the roundtable by remarking that contestation is a natural part of living in a democracy. Even in the face of pressures on the judiciary, we can draw encouragement from the continuing international commitment to the democratic ideal in which societies are governed by the rule of law.