Values in the Supreme Court

Decisions, Division and Diversity

Rachel Cahill-O'Callaghan

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509954766
• eBook ISBN: 9781509921867
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the significance of values in Supreme Court decision making. Drawing on theories and techniques from psychology, it focuses on the content analysis of judgments and uses a novel methodology to reveal the values that underpin decision making. The book centres on cases which divide judicial opinion: Dworkin's hard cases 'in which the result is not clearly dictated by statute or precedent'. In hard cases, there is real uncertainty about the legal rules that should be applied, and factors beyond traditional legal sources may influence the decision-making process. It is in these uncertain cases – where legal developments can rest on a single judicial decision – that values are revealed in the judgments. The findings in this book have significant implications for developments in law, judicial decision making and the appointment of the judiciary.

1

A Theoretical Framework for a Role of Values in Judicial Decisions

These are highly sensitive and contentious questions of moral judgement, on which views will vary from person to person, and from judge to judge, as is illustrated by the different views expressed in the present case.¹

THIS QUOTATION FROM Lord Reed highlights the nature of the difficult legal questions heard in the UK Supreme Court; questions on which Justices reach different decisions. The case Lord Reed was discussing centred on the legislation which prohibits abortion in Northern Ireland. The decision on the legal questions divided the seven members of the UK Supreme Court who heard the case. The majority decided that the abortion legislation in operation in Northern Ireland was incompatible with Article 8 of the European Convention of Human Rights.² Lord Kerr, with whom Lord Wilson agreed, went further and held that it was incompatible with Article 3, the absolute right not to be subjected to torture or inhumane or to degrading treatment or punishment. Despite the resounding judicial criticism of the legislation, it was held that the court had no jurisdiction to hear the case. A single Justice tipped the balance of the standing decision and as a result, the decision was not legally binding and no rectification was required. The dismissal of the case on a legal technicality shifted the pressure of reform from the Supreme Court to Parliament and placed the Northern Irish position on abortion in opposition to that of the Republic of Ireland, which only a week earlier saw the country vote overwhelmingly to allow abortion.³

The case reaffirmed the important potential of the court to motivate social change.⁴ The exercise of discretion by a single Justice blocked the declaration of incompatibility and the legal impetus for change. For those who supported abortion reform in Northern Ireland, the exercise of discretion in this case was a travesty, but for those who advocate for judicial diversity, the judicial disagreement in In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) provides evidence of difference and diversity of views.

Judges in the final courts of appeal exercise considerable discretion and it is the exercise of discretion which underpins judicial disagreement. It is the factors that influence the exercise of discretion, in the context of the uncertain decisions in the superior court, which are the subject of this book. The overarching hypothesis is that the exercise of judicial discretion, and ultimately judicial decisions, are influenced by personal values.

I.JUDICIAL DISCRETION AND THE EXERCISE OF CHOICE IN UNCERTAIN DECISIONS

[I]f, being governed by no (clear) rule of law, its resolution depends on the individual judge’s assessment (within such boundaries as have been laid down) of what is fair and just to do in a particular case … But when, having made any necessary finding of fact and any necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises discretion.⁵

As Lord Bingham’s quotation notes, the exercise of discretion is not without constraint. Indeed, it is accepted that all judges are constrained by the judicial oath, which calls for fairness, impartiality and independence. A decision must also be exercised within the bounds of statutory and common law.⁶ Yet, uncertainty is inherent in the process of reducing the general to the particular and when the law is uncertain, judicial discretion necessarily plays a greater role in the decision-making process.⁷

The exercise of judicial discretion has been studied in many contexts.⁸ This book examines discretion in uncertain decisions in the UK Supreme Court.⁹ By definition, all cases that reach the Supreme Court are ‘hard cases’, cases where ‘the result is not clearly dictated by statute or precedent’.¹⁰ These ‘hard cases’ are causally indeterminate, in that the outcome cannot be dictated from legitimate legal sources alone.¹¹ Paterson argues that there is real uncertainty in these cases.¹² Division in the court is evidence of this uncertainty and common law final courts of appeal worldwide are rife with minority and dissenting opinions.¹³ Although the UK Supreme Court does not achieve the rate of division of the US Supreme Court, the Justices of the UK Supreme Court did not agree on the disposal of the case in almost a quarter of all cases decided in the first nine years.¹⁴

The rate of division in the UK Supreme Court is perhaps lower than expected given the nature of the cases heard, as Lord Dyson¹⁵ recognises:

I am not surprised that there are differing opinions – that is inevitable at this level with the nature of the cases that we hear. They are complicated, they are difficult. Some of them involve questions of judgement and almost philosophy, I mean, approach to life.¹⁶

The cases heard in the Supreme Court require the exercise of discretion and how an individual Justice exercises their discretion is reflected in the final decision. Indeed, as seen in the Northern Ireland abortion case, the exercise of discretion by the individual Justice is particularly important in those cases that closely divide opinion. As Lord Phillips,¹⁷ then President of the Supreme Court, highlighted when he stated ‘if you sit five out of twelve judges on a panel and reach a decision 3:2 it is fairly obvious if you have a different five you might reach a decision 2:3 the other way’.¹⁸

In these ‘close call’ cases the influence of this exercise of discretion by an individual Supreme Court Justice may have an impact not only on the parties involved but on society as a whole.¹⁹ Although, in the Supreme Court, decision making is a social and collective process, it is also ‘an intensely personal occupation and each individual must decide for him- or herself how best to perform it’.²⁰ It is the individual decision maker, and the factors that influence their decision making, which are central to this book.

II.DEFINING VALUES

One of the more important repositories and expressions of values of any society is its law.²¹

The relationship between values and the law has long been the subject of philosophical and jurisprudential debate. It is widely accepted that legal rules have a foundation in values and that policies, statute and legal doctrine reflect the imposition of the value choices. In this context the term ‘values’ covers a wide range of concepts including belief systems, moral imperatives, political dispositions, societal expectations, social attitudes and institutional norms. Even within empirical legal studies, ‘values’ is a diffuse term representing concepts including attitudes, moral dispositions and ideology. To understand values in judicial decision making, this book draws on theories from psychology and adopts a narrow definition of values used in studies of decision making. The definition of values used in this book is one proposed by Rokeach, who defined values as:

[E]nduring beliefs that a specific mode of conduct is personally or socially preferable to an opposite or converse mode of conduct or end state of existence.²²

This definition was further refined by Schwartz and Bilsky, who identified five formal features which are common to most psychological definitions of values: values are (1) concepts or beliefs which (2) pertain to desirable end states or behaviours, (3) transcend specific situations, (4) guide selection or evaluation of behaviour and events and (5) are ordered by relative importance.²³ Values therefore serve as our universal guide for the evaluation of the social world and inform our decisions. Decisions are choices between alternatives and when these alternatives involve competing values we relate possible actions and outcomes in specific situations to our values systems, ‘testing them against our general conceptions about what we believe is desirable or undesirable in terms of our own value priorities’.²⁴ We appraise objects, actions, situations and people in relation to our values with very little cognitive effort.²⁵ As such, values frame decisions. They are the lens through which we view our choices and in reaching a decision between competing values, we affirm one value or a set of values above others. Values are therefore abstract concepts which transcend specific situations. This distinguishes values from attitudes. Although both serve as tools of appraisal, values are trans-situational and attitudes are evaluations of specific entities. Attitudes thus serve as an expression of values in relation to specific objects.²⁶ Values capture a personal or cultural ideal, which distinguished them from norms which capture an ‘ought’ sense.²⁷

But values are not simply abstract ideals; they serve as motivational goals which guide social behaviour.²⁸ Schwartz argues that these motivational goals are in response to the universal basic requirements for survival and maintenance of a stable functioning society.²⁹ Although people differ in their value priorities, the structure of the human value system is universal.³⁰ That is, people differ only in terms of the relative importance they place on a set of universally important value types.³¹ In making a choice between values, we prioritise one value or set of values above another. It is this prioritisation which is psychologically important.

Values, although distinct, are related to other aspects of our individual character. For example, values and moral reasoning, although different constructs, are intimately linked.³² Morals are a set of rules which...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Prologue: Setting the Parameters
• Acknowledgements
• Contents
• Definitions
• Table of Cases
• Table of Legislation
• 1. A Theoretical Framework for a Role of Values in Judicial Decisions
• 2. Finding Values in Legal Judgments: A Model and a Method
• 3. The Value:Decision Paradigm: Validating the Method
• 4. Does the Value:Decision Paradigm Apply to all Indeterminate Cases? Division, Dissent and Judicial Values
• 5. Values and Individual Decision Making: Diversity of Values and Consistency in Decisions
• 6. Values and Panel Decision Making: Shared Value Priorities and Agreement in Hard Cases
• 7. The Role of Values in Judicial Decision Making in the UK Supreme Court
• References
• Index
• Copyright Page