Something has been missed in all the furore surrounding the leaked Supreme Court opinion - and that is that it's completely mad that in any democracy the judges are picked by the president. Judges are supposed to be fearless arbiters of the law, unswayed by outside pressure and, crucially, independent of the legislature and the executive. They cannot do their jobs properly if they are beholden to outside interests nor will they be seen to be doing their jobs properly - as the old adage goes, judges must not just be independent but must be seen to be independent. Trust in the judiciary and the rule of law depends on it. Perhaps it's easy to worry about judicial independence when you live 4000 miles away and will never have the ultimate decision on whether to terminate a pregnancy. But it matters. And it matters not just because of philosophical principle, but because of precisely what's happening in America now.
Some housekeeping. This is not a legal opinion. This is not an argument for or against abortion or even, really, about abortion. Yes, I know the opinion leaked is just a draft. No, I do not pretend to understand the legal reasoning for that draft opinion. Indeed, it may well be the correct "legal" decision. That's not the point. Instead, ever since the court's balance swung back in favour of the conservatives, this decision (and, one fears, more like it) has been coming. The formula was simple: a State passes a bill prohibiting abortion contrary to Roe v Wade. The Bill is immediately challenged (as intended by the State) as contrary to the constitutional protections guaranteed by Roe v Wade. The law ends up before the Supreme Court who are asked to decide, in essence, whether Roe should remain good law. If it does, the State's bill is struck down. If it does not, Roe is overturned.
In theory, this should not be a problem. A country's highest court should be the final arbiter of the interpretation of that country's laws. Leaving aside the merits of being able to strike down law and intepreting a codified constitution, if the law states that abortions are permissible it is the duty of the highest court to faithfully intepret and apply that law, interpret its boundaries and any limits etc. If individuals or organisations bring challenges against that law or aspects of it, those challenges must be given due attention and the arguments heard. This does not change whether the law protecting the right to abortion was judge-made in the first place (as in the US) or on the statute books (as in the UK). If a challenge was brought against the 1967 Abortion Act in the UK, I would expect the Supreme Court (or whichever was the highest court the appeal ended up before) to hear the appeal, the legal arguments and pass judgment in accordance with that legal reasoning. There is nothing, in principle, wrong with a court of law determining whether or not a law permitting abortion is good law.
Where the problem lies is when the judges sitting on the highest court are, with respect, not selected (just) because they are great lawyers and would be great judges, but (also) because of their political opinions. I am sure, as legal minds go, the nine US Supreme Court justices possess good ones but there is absolutely no denying that at least part of why they were picked is because they could be trusted to decide cases, when it mattered, in accordance with the picking-president's political beliefs. Those justices that Trump selected could be trusted to lean towards overturning Roe v Wade should the opportunity arise. Judge Jackson was selected, in part, because she considers Roe v Wade good law and supports a women's right to choose. This is not to undermine any of the justice's legal credentials - they are, I am sure, great legal minds as well as believing the correct things as far as the president was concerned. But that latter point is important. To some degree, their political leanings will have been part of why they were picked and picked by that president. There is a serious problem when one can predict, with almost certainty, how the court will decide a certain case based on knowing their political opinions and which party's president picked them. There is a reason why conservative-leaning States were so keen for Roe v Wade to be challenged under the Supreme Court as currently constituted: there is a 6-3 conservative, anti-abortion majority.
Whichever way you slice it, the US Supreme Court cannot be said to be an properly independent instution committed to upholding the rule of law - because the rule of law demands that judges be independent of the political establishment, not picked by it. And that should concern everyone. Give it a decade or two and a few conservative justices ending their tenure under Democrat presidents and exactly the same case will be decided in the opposite way. The legal reasoning won't matter so much as the political leanings of the judges. That's not the rule of law. That's not an independent judiciary committed to upholding the law of the land and faithfully intepreting the legal arguments in accordance with existing precedent. Private political opinions should play zero part in how judges are selected. Judges with a well-founded reputation for upholding certain social policies or espousing certain political opinions should be excluded from selection for any judicial role, not actively courted (forgive the pun) precisely because of that reputation.
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