Supreme Court 2: The Court’s in Session

Both the US and the UK Supreme Courts opened new terms on Monday, but the openings, like the courts themselves, were rather different.

The Justices of the UK Supreme Court, gathered for the swearing-in of a new colleague, Lord Wilson, in May 2011. Used by permission (c) UK Supreme Court 2011

Actually the entire British judicial system began a new legal year on Monday, and it opened with a Church of England service in Westminster Abbey—as I’ve mentioned before, there’s no official separation of church and state here.* Afterwards the judges crossed Parliament Square for the Lord Chancellor’s Breakfast, nowadays more of a reception with a buffet.  The  custom began in the Middle Ages when the judges were required to fast before the service,  and had to parade with empty stomachs nearly 2 miles to the Abbey in the first place. Most now arrive by car, but the Justices of the Supreme Court, who only had to cross the street, walked over to the Abbey on Monday in their formal finery: black robes heavily embroidered with real gold thread, generally only worn for this opening service and at the State Opening of Parliament.

You may have seen lawyers in British courtroom dramas on TV wearing black robes and with little white wigs perched on top of their heads, with judges wearing even more elaborate get-ups.  Wearing wigs only dates back only to the 17th century, when wigs for men became the popular fashion; gowns date back at least to the Middle Ages, when they were worn by all students and most educated professional men.  There’s been a lot of discussion in the legal profession here about whether to continue these traditions, but the Supreme Court, being new and making up its own rules, decided to go wigless. Even in the procession on Monday, the Justices wore no wigs, although Lady Hale, the only female Justice, wears on these occasions a hat she had designed for the purpose.   (It is much more usual for women in the UK to wear hats for formal ceremonies than it is in the US. Women’s hats are so common at special events, especially church weddings, that one woman who asks another “Will I need a new hat?” is understood to be asking “Are you getting married?”)

The Supreme Court's front door (with friendly doorman just discernible). The carvings over the door depict Westminster Abbey receiving its Royal Charter in 1560, a suitably medieval subject for the neo-Gothic building (although it's very late neo-Gothic, completed in 1913).

Maybe Lady Hale just felt that the gravitas of the court demanded headgear. That’s apparently what the lawyers who appear before the court felt; given the choice, they decided to continue with wigs and gowns. Our tour guide (see previous post) suggested that the lawyers might feel the gowns and wigs bolster their courage, because speaking in front of the Supreme Court must be pretty intimidating, no matter what the Justices wear when they’re sitting.

These sittings take place during four terms every year: Michaelmas, Hilary, Easter, and Trinity—names used on similar calendars at some of the major historic universities, and all obviously derived from the calendar of the Christian church. Michaelmas—September 29, the feast of St Michael the Archangel—is one of 4 traditional quarter days in England, used at one time as the days rents were due or quarterly meetings held, the other quarter days being Lady Day (March 25, meaning the Feast of the Annunciation for the church, and meaning something else entirely for fans of Billie Holiday), Midsummer Day (June 24), and Christmas Day (December 25).**

The average person on the street in London probably wouldn’t be able to tell you exactly which day is Michaelmas, but they’d know that the word Michaelmas means autumn, so the guide who took us around the Supreme Court building could mention the Michaelmas term and be comfortable that people would know what she meant. Heads around me nodded; I was probably the only one who had to go home and look it up.

Another frieze from the front of the Supreme Court's building, this one showing King John and the barons at the signing of the Magna Carta, 1512. The Magna Carta is the foundation of the British constitution, which is not written, but which you might say is actually made up of history, consisting as it does of case law, conventions, and customs.

In any case, Monday’s procession in full regalia is a rare event. Most days the Justices, in ordinary business clothes (possibly plus one hat), come in, sit down, and get to work—except that they don’t all work at the same time. In the US, all 9 Supreme Court Justices are expected to hear every case, but in the UK, depending on the importance of each case and what areas of the law apply, they assign a panel of 5, 7 or 9 Justices. It’s a good thing they don’t always need all twelve Justices at once, because right now there are only ten; they’re waiting for the independent commission that selects new Justices to come up with replacements. From time to time the Court drafts in retired Justices, or judges from certain lower courts, when particular people have experience pertinent to some case, but that doesn’t have to do with filling vacancies, just with getting the best heads available to work on the problem.  That seems to me admirably practical, but I can’t imagine the US Supreme Court doing it; nobody but the 9 Senate-confirmed Justices is welcome at their deliberations.

Today’s Justices may make up the first court in the UK to be called the Supreme Court, but since supreme is just the name for the highest court that hears appeals, every judicial system has some court that qualifies. Until the 1870s, the highest court here was the House of Lords itself—the whole House, which today has 824 members (I’ve had trouble pinning down how big the House was in the 1870s). The equivalent in the US would be to have all of the Senate hear legal cases—and even if the US Senate were to do that, then the court would have only (only!) 100 judges. With so many Lords participating, it’s no surprise that the system became too cumbersome, so certain Lords were designated Lords of Appeal in Ordinary, more commonly called Law Lords.  The Law Lords met separately from the rest of the House to hear appeals as highest court.

And just for some color after those pictures of monochrome carvings, here's a close-up of the carpet with the motif featuring the rose, flax, thistle and leek of the Supreme Court's logo as designed by Peter Blake of Sgt Pepper's album cover fame.

But that system still allowed conflicts of interest that the US separation of powers prevents.   Our guide cited the controversial 2004 law banning hunting with dogs (widely considered a ban on fox hunting, although many types of hunting were affected). The Law Lords by custom do not vote on legislation, but officially there was nothing to stop them, and two of the Law Lords who felt strongly about hunting did vote. It would have been possible for them to go downstairs to the House, vote on the law, and then walk upstairs to the Law Lords’ committee room and decide cases based on that law.

Almost as much of a problem, using that committee room made it difficult for the public to see what went on.  The room couldn’t accommodate many spectators, it was difficult for the public to get to, and it couldn’t accommodate filming.  (Almost all of the proceedings of the Supreme Court are now filmed, with the footage sometimes aired by major networks or streamed on the web.)

Nowadays the public can go see what happens in all three very public courtrooms in the Supreme Court building—but so far I’ve only told you about two of them. That’s because Court 3 is not for the Supreme Court at all, but for the Justices in their other hats (or other wigs?), when they sit as the Judicial Committee of the Privy Council (JCPC).

And just like my series on the English habit of drinking tea, in which one post turned into two, and two became three, I’m finding that the tale grows in the telling. I’ll have to let you in on the activities of the JCPC in the next post.

In the meantime, here’s the poem the Poet Laureate wrote for the UK’s first Supreme Court.

Lines for The Supreme Court

Tides tumbled sand through seas long-lost to earth;
Sand hardened into-stone – stone cut, then brought
To frame the letter of our four nations’ law
And square the circle of a single court.
Here Justice sits and lifts her steady scales
Within the Abbey’s sight and Parliaments
But independent of them both. And bound
By truth of principle and argument.
A thousand years of judgment stretch behind –
The weight of rights and freedoms balancing
With fairness and with duty to the world:
The clarity time-honoured thinking brings.
New structures but an old foundation stone:
The mind of Justice still at liberty
Four nations separate but linked as one:
The light of reason falling equally.

— Andrew Motion

* Despite separation of church and state, the Catholic Church has provided a special mass to which all the US Supreme Court Justices and some guests are invited, the Sunday before the term opens in the autumn, every year since 1953. Ruth Bader Ginsburg famously does not attend, but other non-Catholic Justices often do. At the moment, the US Supreme Court is made up of 6 Catholics and 3 Jews, a tally which by no means reflects the religious habits of the country as a whole!

** Scotland traditionally had different quarter days: Candlemas (February 2), Whit Sunday (May 15), Lammas (August 1), and Martinmas (November 11). You get used to hearing “except in Scotland” about a lot of things when you talk about traditions and laws in the United Kingdom.

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3 Comments

Filed under Architecture, Culture, History, Law/Politics/Government

3 responses to “Supreme Court 2: The Court’s in Session

  1. University of Virginia School of Law’s Professor G. Edward White discusses the controversial political history of the Supreme Court on the Charlottesville, VA, political interview program Politics Matters with host and producer Jan Madeleine Paynter: http://bit.ly/pm-white

  2. MFC

    Oooooooh!!! What pretty outfits the English Supremes get to wear! Our U.S. Supremes look positively *dowdy* by comparison. (And, our Mr. Justice Clarence Thomas could use a bit of glam, in my humble opinion.)

    About a year ago, I got to attend a US Supreme Court oral argument for the first time. The most lasting impression I came away with was that this Court wasn’t really all that different from the state supreme court I was familiar with. The courtroom wasn’t any more imposing. The questions asked by the justices weren’t any more probing. The lawyers doing the arguing weren’t any more brilliant or persuasive. Kind of a let-down, in those regards, I thought.

    The justices of the Kentucky Supreme Court, (seven of them, elected by the citizenry), sometimes tap a private, non-judicial attorney to join them on the bench for a day, hearing oral arguments and voting on decisions as a substitute for an absent justice. Some of these stand-ins have actually authored official court opinions. No judicial training, knowledge, or experience necessary. Just some prominent, (i.e., rich), member of the bar being given the title Supreme Court Justice for the Day. Never seemed quite right to me.

    Thanks for another great post, MEF! If someone is to notice the carvings above the door to the Supreme Court’s digs, I would certainly have picked you as the one for the job!

  3. Malcolm

    British Supreme Court judges were wise to eschew ceremonial robes for their daily business, and all the family courts dealing with children have a no-robes tradition, too. The English have to start learning that not all branches of the law are equally risible. One wonders how long it will be before the remaining Good and the Great of jurisprudence follow Ireland, which shares parentage with the English system, in abolishing all wigs, jabots, and gowns — if only to deprive Private Eye of its annual chance to show the judges in all their motley absurdity?

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