The Rule of Law is fairness; Dobbs isn’t

“Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law. And the rule of law enforces minimum standards of fairness, both substantive and procedural.”

So spoke Lord Steyn giving his judgement as part of the majority in the House of Lords in the Pierson case, rejecting a political intervention in the justice system. The Home Secretary (the often-grandstanding Michael Howard) was seeking to increase the sentence given to a young murderer – which had been set according to the standards then established by Howard’s predecessors. This rejection of a political intervention into a properly decided legal determination could not be a clearer example of the rule of law: even elected politicians must act within the frame set by the law. And, as Lord Steyn makes clear, that frame is in essence one of fairness. The rule of law is fairness.

The rule of law seems to many an abstruse concept – about the law sitting above all of our actions – but at its core it is simple: the activities of even the most powerful are subject to constraints. Without it, we might face arbitrary treatment by the government, through police actions say, or through administrative decisions that lack procedures where the views of impacted individuals are heard. Without it, the strong and the wealthy would be able to exploit their strength and wealth and squeeze the rights and powers of the weaker and poorer. Often, it will feel like many of these things happen anyway, but it could be worse – and in countries which lack full benefit of the rule of law, it is.

The rule of law underpins capitalism, allowing us to believe it is worthwhile to agree contracts and to trust that they will be enforced, and to believe that our property rights will be protected. These factors mean that having the rule of law in place was a foundation for the economic success of the last centuries. Sometimes it feels like courts too need to remember this – not least in the country proudest of its recent economic history. US courts, though, seem at risk of forgetting it.

Lord (Tom) Bingham, the pre-eminent judge of his generation, brought the rule of law from its abstruse level to more ready recognition in his seminal short book on the topic. He sets out eight principles of the Rule of Law:

i. The law must be accessible and so far as possible intelligible, clear and predictable.

ii. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion.

iii. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

iv. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably.

v. The law must afford adequate protection of fundamental human rights.

vi. Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.

vii. The adjudicative procedures provided by the state should be fair.

viii. The rule of law requires compliance by the state with its obligations in international law as in national law.

In short, the rule of law is fairness. A great organisation named for Bingham – the Bingham Centre for the Rule of Law – now tries to promote the concept, and its effective recognition in practice, in the UK and around the world. There are times when its work seems to be getting harder, but that makes the work of course still more important.

Fairly or not, the UK and the US are nations that proudly think of themselves as governed by the rule of law. As early as in the 1830s, Frenchman Alexis de Tocqueville in his tour of the developing US democracy noted the importance of the law in how its political system functioned. Both nations now have Supreme Courts (the UK one created when the function of the House of Lords as a judicial chamber was replaced to make more clear the separation of powers between legislature and judiciary). But the US Court now seems to have become more a political body than a legal one – in ways that do not serve the rule of law and fairness.

The series of cases recently decided certainly have a political flavour, and the splits on the Court now seem much more on ideological lines than was previously the case. Indeed, the most recent slew of decisions appear to display coherence more through political views than legal analysis. It is also becoming clear that this Court is willing to take decisions that it does not need to. The recent cases include among others: barring the Environmental Protection Agency from taking forward emissions caps under the Clean Air Act that were never pursued (West Virginia v EPA), freeing a sports coach to make religious observance on the sports field, encouraging broad participation (Kennedy v Bremerton School District), overturning the right to abortion (Dobbs v Jackson Women’s Health Organization), preventing recompense being due from a police officer to an innocent individual who was interrogated and threatened in clear breach of Miranda rights protections (Vega v Tekoh), banning a state law against the carrying of firearms (New York State Rifle & Pistol Association v Bruen), and barring a state law that rejects state funding for private religious schools (Carson v Makin).

The EPA judgment and that in a case on worker protections at a nuclear facility (US v Washington) need not have been as broad, and it is arguable that in their specific circumstances they need not to have been considered at all (the EPA rule was never enforced and the worker protections were rapidly rectified). But this Court, for all that it would claim not to be an activist one, goes to places it needs not. This tendency is most clear in Dobbs.

Unusually, there are five separate judgements in Dobbs; as well as the majority view (agreed by five judges, two of whom also filed concurring opinions) and the dissent (agreed by three), there is an opinion from Chief Justice Roberts which agrees only with the decision at hand, not with the overall majority opinion. While the majority opinion and the two concurring opinions appear to be mostly history, and the dissent mostly politics and rights, Roberts’ opinion seems to be largely law.

Throughout all the Dobbs opinions, the issue of stare decisis is a central consideration – the legal principle that an existing decision should stand, in all but the rarest circumstances. Considerations of this principle are clearly central to the ultimate court decision since it chose to overturn Roe v Wade, the 1973 decision granting constitutional protection to the abortion rights. We’ve seen that predictability and consistency of the law and court decision-making is central to the concept of the rule of law (both are explicit in at least the first two of Bingham’s principles). The majority largely argues that stare decisis doesn’t matter if the original decision was wrong – and for those who fear the rolling back of anti-racism laws the fact that the overturning of Plessy v Ferguson is lauded across the opinions is helpful (Plessy was the racist decision overturned in 1954’s Brown v Board of Education, the great and unanimous Supreme Court finding that enforced the desegregation of schools).

Roberts CJ is more nuanced and more clear. He urges that stare decisis means that the Court should not do more than it needs to. In the case in hand, he argues that there is no need to overturn Roe v Wade in its entirety. Rather, the Supreme Court should consider the case as it was when the Court agreed to consider the arguments – it was only when those arguments were made that the Court was urged to consider overturning Roe v Wade. Roberts starts his opinion by noting that when the court granted the right to plead the case before it, it was to decide the narrow question of whether all pre-viability bans on elective abortions were un- constitutional, and he believes that is the only question that the Court needed to have considered and should have considered. He concurs with the majority only to the extent that they, in his view, answer this question correctly.

The rule of law is fairness, but that does not mean that the courts are justified in all actions. Rather, like all arms of the state, they need to take their decisions within a framework of controls and constraints. It’s hard not to agree with Chief Justice Roberts that the Supreme Court has risked stepping beyond that framework. Fairness, and the rule of law, require a little more circumspection.

R v Secretary of State for the Home Department, Ex Parte Pierson (1997) 3 WLR 492

The Rule of Law, Tom Bingham, 2011, Penguin

Bingham Centre for the Rule of Law

De La Démocratie en Amérique [Democracy in America], Alexis de Tocqueville, 1835 & 1840

Opinions of the Supreme Court, October 2021-2022 term

Dobbs v Jackson Women’s Health Organization