The UK Supreme Court’s Miller II: Keeping the Court out of politics’ way?

Abstract

Abstract In recent years, the legitimacy of the United Kingdom’s Supreme Court has come under increasing pressure, with critics accusing the Court of unduly entering the domain of “politics.” Using the September 2019 Miller/Cherry “prorogation” judgment as a case study, this article analyzes the tension underpinning the criticisms. In particular, it makes two theoretical claims. First, three normative worries guide attempts to distance adjudicative judgment from the political sphere. Courts should not disrespect settled law (the “lawmaking worry”), interfere with the autonomy of politics (“the interventionism worry”), or answer political questions (“non-justiciability worry”). Second, though all three worries represent coherent norms in the abstract, in deeply controversial cases like Miller/Cherry, those norms fail to be of independent help. Attempts to distinguish the judicial domain from the domain of politics, the article argues, are themselves rooted in ideologically deeply colored definitions and acts of political stance-taking.