Across democracies, supreme courts’ legitimacy, autonomy are under question

Source: The post is based on the article “Across democracies, supreme courts’ legitimacy, autonomy are under question” published in “Indian Express” on 7^th July 2022.

Syllabus: GS 2 – Structure, organization and functioning of the Executive and the Judiciary.

Relevance: To understand the declining legitimacy of the Supreme Court.

News: Recently, the US Senator declared that the Supreme Court of the United States (SCOTUS) has “burned whatever legitimacy they still have”.  The New York Times has referred to “the Supreme Court’s declining institutional credibility [that] has wounded the nation’s confidence in the judge as an impartial guardian of the law”

But the question of the “declining legitimacy of a Supreme Court” is a concern of all democrats, even in India.

What are the challenges faced by Supreme Courts worldwide?

The centrality of all these issues is the court’s autonomy. For example,

-In Poland, the present government tries to undermine the supreme court’s independence. This resulted in the European Union warning the Polish government that its membership of the EU was at risk.

-In the US, the recent array of decisions has severely eroded the court’s legitimacy. These include, a) Overturning the 50-year-old judgment of Roe versus Wade on the right to abortions, b) The affirmation of gun rights deriving from the Second Amendment, c) limiting the power of the Environment Protection Agency (EPA) to reduce greenhouse gases across states.

How can the Supreme Court address the question of legitimacy?

On this question of “legitimacy”, there are three important aspects. These include 1) The court’s role in enforcing the core principle of “limited government”, 2) The court’s recognition, and endorsement of the fundamental distinction between “rule of law” and “rule by law”, and 3) The court’s role as the promoter of “constitutional morality”.

Enforcing limited government: The executive controls the machinery of government and often tends to misuse it, particularly in situations when they dominate the other institutions of the state. The court must clip the executive’s wings. The court’s must speak on behalf of the rights of the ordinary citizen.

The court’s sometimes misread their role as implementers of government policy, but they are not.

The distinction between “rule of law” and “rule by law”: According to the Stanford Encyclopedia of Philosophy, “The rule of law is supposed to lift law above politics. The idea is that the law should stand above every powerful person and agency in the land. Rule by law, in contrast, connotes the instrumental use of the law as a tool of political power. It means that the state uses law to control its citizens but tries never to allow law to be used to control the state”.

Authoritarian regimes hide behind rule by law. Those regimes also seek to control the appointment of judges. By controlling the judiciary, regimes are able to shift the dispute from the domain of politics to the chambers of the courts. This must end.

Court as a custodian of constitutional morality: Whenever democracy spreads and colonises aspects of social and political life, the court must immediately enter the playing field and regulate this spread. The court must remind politics of what is permitted and what is proscribed.

Supreme courts need to be vigilant about the threats to their “legitimacy”. They need to stand some distance above political dynamics so that they can reflect on their privileged position and their sacred responsibility.