The
Seal of the Supreme Court of the United States
The looming battle over who will succeed the recently deceased US Chief
Justice Antonin Scalia brings to mind the most famous clash between executive
and judicial branches of the tripartite system of state power in the United
States.
President Franklin Roosevelt accused the Supreme Court of inflicting a
form of "judicial tyranny" in blocking key measures of his 'New Deal'
programme. The US Constitution does not explicitly give the Supreme Court the
power to strike down Acts of Congress for been unconstitutional, such power is
instead implied from two articles used as the justification for the decision of
the landmark case Marbury vs. Madison (1803).
Roosevelt backed down from his threat to pack the Supreme Court with
justices who would favour his policies.
The UK system of Parliamentary Sovereignty is of course different from
the American set up. The default position (disregarding modifications brought
about by the UK's membership of the European Union and subscription to the
European Convention of Human Rights) is that the highest court in the land
cannot strike down an Act of Parliament.
In the United Kingdom, analogous clashes over blocked legislation
historically occurred within Parliament itself which is composed of the House of
Commons and the House of Lords.
In 1909, the House of Lords rejected Prime Minister David Lloyd George's
Liberal Party government's 'People's Budget'. The constitutional implications
were far reaching. Lloyd George threatened to appoint hundreds of new peers to
outvote the overwhelmingly Tory Party-sympathetic hereditary peers.
The infuriated Lloyd George felt it intolerable for an unelected chamber
to be able to block part of the programme of an elected government. Lloyd
George won this battle and it led to the reform of the House of Lord's powers
in relation to blocking and delaying legislation via the Parliament Act of
1911. It also introduced a 'Special Procedure' which allows the House of
Commons to pass legislation without the participation of the House of Lords.
A similar struggle in the post-war period when the socialist Labour
Party led by Clement Atlee embarked on a programme of nationalisation which was
challenged by the conservative-leaning House of Lords resulted in the passing
of the Parliament Act of 1949.
Roosevelt obviously felt that as a democratically elected President who
had persuaded a democratically elected Congress to pass the relevant New Deal
legislation, he had a mandate which the unelected Supreme Court justices did
not have, and should not have the final word among the organs of state.
One argument against the unease about Parliamentary Sovereignty is that
the most powerful arm of Parliament, the House of Commons is an elected body.
On the other hand, since elected bodies may abuse the trust put in them by the
electorate it appears a sound argument that legal technicians of the highest
repute ought to settle constitutional questions. They should be the final
arbiters; to use the parlance of the American system, serve as the 'Guardians
of the Constitution'.
The problem with this of course is that the divide in American society
on a range of culturally and socially sensitive issues has encouraged the
politicisation of the American Supreme Court.
The process of nominating and confirming a successor to Chief Justice
Scalia will once again show this to be the case.
Adeyinka
Makinde (2016)
Adeyinka
Makinde is a lecturer in Constitutional Law
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