Like a bad ‘When a chicken walked into a pub’ type of joke, when activist litigants walk into a courtroom and meet injunction-happy judges, the result is a swirling vortex of weaponised lawfare. In discussing the current jurisdictional kerfuffle between the US federal executive and judiciary, I find it impossible to overlook the total failure of the courts to protect people’s rights, dignity, and liberty under comprehensive assault from the administrative state during the Covid years. I accept the possibility that this may colour my judgment on the controversy.
It has become sadly obvious in recent years that the gravest threat to the theory and practice of democracy is not the rise of populism with wannabe fascists and neo-Nazis as their seductive tribunes, but technocratic elites with barely concealed disdain for the political beliefs and voting behaviour of the ‘deplorables.’ Moreover, as the firewalls of resistance to populist advance crumble one by one under assault from enraged voters, the final frontier of elite resistance is the courts. The legal clerisy—lawyers, law professors, and judges—is part of the ruling elite and the last line of defence for safeguarding victories already won by social justice warriors in their long march through the institutions.
Judicial Fallibility
Unlike every other profession, is the judiciary infallible? Clearly not, else they would not have been complicit in the biggest violation ever of people’s liberties and freedoms during the Covid years. Every country with a credible rule of law every so often overturns wrongful convictions from the past. Among the best-known Australian examples are those of Lindy Chamberlain and Cardinal George Pell.
As a corollary, are judges individually infallible and free of any influence of personal prejudices, beliefs, and life experiences? Again, clearly not. If they were, then in every single verdict heard by a bench of judges, verdicts would be unanimous and we could save considerable time and expense by dispensing with layers of appeal. From Australia consider the case of Cardinal Pell once again. He was convicted by jury verdict, the conviction was upheld 2-1 by the state appeals court, but overturned unanimously by the High Court of Australia (our apex court). Same laws, same evidence, different judgments.
Is every judge a paragon of judicial integrity and competence? Not so. A few are corrupt or guilty of other acts of malfeasance. Many more, I suspect, are incompetent rather than dishonest or corrupt. Mechanisms for acknowledging incompetence are fewer and less frequently invoked than for detecting and punishing corruption and malfeasance. Yet, even the latter cannot always be relied upon.
There is an interesting scandal playing out in India even now. On the night of 14 March, the official residence of a judge of the Delhi High Court, Justice Yashwant Varma, went up in flames. Firefighters and police officers who rushed to deal with the conflagration discovered jute sacks of burnt-out cash. The Police Commissioner got in touch with the chief justice of Delhi High Court on the 15th to apprise him of developments, who in turn communicated the information to the Supreme Court of India. The Chief Justice of India established a three-judge panel to probe the matter and its report, which has been uploaded online (with redactions) in the interests of transparency given the intense public interest, substantiates that there are grounds for a full and proper inquiry. Justice Varma meanwhile has been transferred to another high court (against the protest of that court’s bar association) pending further investigations and action.
The hint of corruption would very likely have gone entirely undiscovered but for the fortuitous fire in the judge’s house. This in itself is an indictment of the inadequacy of oversight mechanisms for judges.
A final preliminary question: Unlike all other branches of government, is the judiciary collectively and are judges individually magically incapable of judicial overreach and in need of being put back in their lane? I suppose that such a perfect distribution of relative self-discipline among the branches of government is possible but, being an old cynic, forgive my scepticism. Not all judges have the necessary self-awareness and strength of character to avoid the temptation to abuse their powers and authority. On the contrary, the legal profession has a collective self-interest to expand the reach of its authority over all other sectors and, conversely, to protect itself from pushback by others.
A follow-up question is: How can the slow and deliberative process of judicial decision-making be reconciled with the need for sometimes urgent action by the executive? The judiciary is habituated into its own sequence and pace of actions. Thus for judges, the ultimate acquittal of Cardinal Pell by the High Court of Australia was a triumph of judicial institutions and process. To ordinary mortals, the process itself was a harsh punishment, and the 405 days that the aging cardinal spent behind bars was a damning miscarriage of justice.
In other words, from the date of his indictment in June 2017 through two jury trials, a first failed appeal, the final successful appeal, release from prison in April 2020, and death in January 2023 still unable to fully cleanse the taint of paedophilia, more than half of Cardinal Pell’s remaining time on earth was under malicious trial and punishment by a cadre of anti-Catholic Church activists out for blood. The nation demanded a scapegoat for the Catholic clergy’s historical sexual abuse of children. I write this not just as a non-Christian but as an atheist.
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