Report of the 2007 Annual Lecture in Law and Society, delivered by Cass Sunstein.
Conflict between the judges and government is built into the very concept of the judicial protection of human rights. The Human Rights Act does presuppose a basic consensus on human rights between the judges, on the one hand, and the government, people and Parliament on the other. However, there is clearly no consensus when it comes to the rights of unpopular minorities, particularly concerning controversial issues such as asylum seekers suspected terrorists.
Quite where the boundaries of justifiable judicial social policymaking lie will depend on one’s own understanding of the nature and value of democracy. Most will agree that there is value to policy outcomes possessing democratic legitimacy, but that this should not mean that the rights and interests of minorities are routinely ignored.
The question of how courts respond to national emergencies or crises is of profound importance in a democratic society. In the United States, the federal courts exercise the power of judicial review, giving them the authority to invalidate acts of legislatures or executives as unconstitutional. Given this, those groups who wish to ensure that government does not infringe on valued liberties during times of crisis often look to the federal courts to serve as a limitation on legislative and executive overreach.
As judges face growing criticism for 'disproportionate' sentencing of those convicted of inciting riots, Sir Mark Potter, former President of the Family Division of the High Court of England and Wales, assesses to what degree the media influence the judiciary.
In the policy brief, he finds that judges generally remain impervious to outside influence, but that sentencing policy is sometimes influenced by public opinion.