10:07, March 08 317 0 theguardian.com

2017-03-08 10:07:06
British supreme court justice makes veiled attack on Donald Trump

A senior British supreme court justice has made a veiled attack on Donald Trump’s hostility towards the US judiciary in a speech defending the independence of UK judges mauled by the media over their Brexit judgment.

In a provocative address, delivered last month during a visit to the Bahamas, Lord Mance explored the often-fraught relationship between governments, judges and elected representatives. He warned that intemperate attacks on judges can develop into a threat to democracy.

Mance’s speech alluded to the political uproar in the US following the president’s Twitter tirade about a US district judge, James Robart, who suspended Trump’s original travel ban against seven predominantly Muslim countries.

Mance said that an effective judiciary relied upon society accepting the necessity of its role. Directing his dialogue towards American historical precedents, he said: “The probably apocryphal statement of President Andrew Jackson [1829 - 1837] about Chief Justice Marshall’s decision in Worcester v Georgia 1832: ‘He has made his decision. Now let him enforce it!’ is a recipe for the end of the judicial role and indeed of democracy.

“When alive, Jackson is reported as saying: ‘I was born for the storm, and calm doesn’t suit me.’ Recent photoshoots show that President Trump has moved a portrait of Andrew Jackson into the Oval Office.”

Commentators have compared Trump’s political populism to Jackson, who was also a plain-spoken Washington outsider.

Mance is one of the longest-serving members of the supreme court. He was among the majority of justices in the recent Brexit ruling that required the prime minister to seek parliamentary approval before triggering article 50 of the Treaty on European Union that formally triggers Brexit.

His lecture, entitled The Role of Judges in a Representative Democracy, described the judiciary as the third pillar of the state. It is “a junior partner, mediating by interpretation between the legislator and society,” he acknowledged.

Nonetheless, he added: “The judiciary stands as a counter-weight to the other two pillars, the legislature and the executive. Each needs the other, even if they are sometimes in healthy tension.”



Later in his speech, Mance observed: “Recently, Judge Neil Gorsuch, nominated by President Trump to be an associate justice of the United States supreme court characterised language denigrating the judiciary as ‘disheartening and demoralising’. Judge Gorsuch is himself is a man of great politeness and considerateness.”

Considering the sensitive interface of relations between judges and politicians in the UK, Mance was more forthright, albeit diplomatic.

“Social peace is a two-sided affair,” he observed. “Ultimately our societies depend on shared bonds and mutual understanding. From time to time, voices do speak in terms which are not helpful to the rule of law.

“When prime minister, Mr Cameron reacted to a European court of human rights’ decisions that at least some convicted prisoners should have the vote, by saying that they made him physically sick and that he would clip the wings of the court.

“The Daily Mail reacted to the high court’s judgment in Miller (later upheld in the supreme court) by putting a picture of the three high-court judges on its front page with the caption ‘Enemies of the People’, and the Mail Online – at least initially, and deplorably – referred to the publicly acknowledged homosexuality of one of them.

“Happily, by 24 January 2017 when we [in the supreme court] gave our judgment, things had calmed down. The furthest the Daily Mail then went was a photo of the three [dissenting judges] captioned ‘Champions of the People’, which was even quite witty!”

In a separate speech, given at King’s College last month, Mance also revisited the Miller/Brexit judgment, considering how it turned on the often ill-defined relationship between domestic and international law.

He said: “The Miller case was about whether the [government’s] prerogative power existed or survived at all, to enable the executive to alter the processes or sources of law-making, as well as potentially the content of domestic law, in the UK.

“The courts have an important role in ensuring the legality and propriety of executive action, at home and abroad. They can never be primary decision-makers.”