Royal American Supreme Court

The Royal American Supreme Court is the final court of the United Kingdom of America, established by Article X of the Charter of Union in 1783 and sitting at New Westminster. Seven Justices sit on every case it hears. There are no divisions, no chambers and no larger panel for grave questions, and the Court hears very few cases, by leave, so that a judgment of the Royal American Supreme Court is a rare object. Most of its work is appeal. It also has an original jurisdiction, used seldom, over disputes between a polity and the Realm, between one polity and another, and under the Treaty of Honolulu with the Kingdom of Hawaiʻi and the accession settlement of the Kingdom of Alaska.

The Court holds two powers over legislation and they are not the same power, which is the most important sentence in this article.

Under the Charter, Article X.10, the Court may hold an Act of Parliament repugnant to the constitution and pronounce it void. That authority was asserted in the founding era and has never been surrendered.

Under the American Rights Act, the Court may do no such thing. The Act of 1866 is a statute, and a statute cannot bind the Parliament that made it, so where an Act of Parliament cannot be read compatibly with the rights the Act guarantees, the Court declares the incompatibility and leaves the statute standing. The declaration does not repeal, does not disapply and does not assist the person who brought the case.

That distinction is the whole of the Realm’s constitution in a sentence. What is in the Charter, the Court may strike. What is in the Rights Act, the Court may only disapprove. Everything else about the institution, its restraint, its authority, its silences and its failures, follows from where a given guarantee happens to sit, and the Realm’s most cherished liberties sit on the wrong side of that line by an accident of drafting in 1866 that nobody has ever been willing to correct.

In practice the declaration is obeyed. Parliament has amended or repealed within a session in every case but one, which is why the arrangement is usually described as working. The Register notes that a power obeyed by custom and a power that binds are different things, and that the difference has never been tested, because no ministry has ever refused.

The Court is the institution, and the Chief Justice is a person who holds offices outside it. The Court sits apart from the Crown. Its Chief Justice does not, and acts in the Realm’s succession and continuity machinery as an officer of the Realm and never on the Court’s behalf. The distinction is kept with some care and is set out in its own section below.

Constitutional character

The Court is the judicial arm of a Crown federation, and it is unusual in that it holds the strong power of a written-constitution court and the restraint of a parliamentary one at the same time.

Justice is done in the King’s name. The Crown is the fount of justice and the Court’s authority descends, in form, from the Crown in right of America. Neither the King nor the Governor-General exercises any judicial power: they do not sit, do not decide and do not review. The one judicial attribute the Crown retains is the prerogative of mercy, exercised on ministerial advice and not by the Court at all.

The Court is not a constitutional court in the continental sense. It has no separate constitutional jurisdiction, no abstract review divorced from a case, and no monopoly on constitutional questions: every court in the Realm applies the Charter and the Rights Act, and the Supreme Court is the last of them rather than a distinct tribunal. What reaches it reaches it as an appeal, as an original suit between governments, or as a reference.

Void and incompatible

Article X.10, and the power to void

Article X.10 of the Charter provides that no Act or instrument repugnant to the Charter shall have force, and leaves the courts to say when one is.

Whether that was a real power or a form of words was settled in the founding era. In Amory v the Collector of the Port of Boston (1799), a merchant’s challenge to a national customs measure gave the Court of Chief Justice Oliver Ellsworth the occasion to hold that the clause meant what it said and that the courts, in deciding a case, must decline to apply an Act that the Charter forbade.

The power is used routinely. The courts, this one among them, void provisions of Acts of Parliament several times in most years, almost always a single provision and only to the extent of the contradiction, and it is ordinary business rather than a crisis. Polity legislation is struck more often still, because a polity may exceed its competence in ways Parliament cannot, and the great majority of the Court’s constitutional work is deciding which of two governments a subject belongs to. What is rare is the voiding of a whole Act, or of any provision on a ground of liberty rather than of competence.

The Rights Act, and the power only to declare

The American Rights Act of 1866 is the Realm’s bill of rights and it is an ordinary statute. It was passed on a vote of confidence in the Lincoln ministry, it is not entrenched, and it could in law be repealed tomorrow by a simple majority.

The consequence for the Court is severe and is the central fact of its modern practice. Where an Act of Parliament can be read compatibly with the Rights Act, the Court reads it that way, and the interpretive obligation is strong enough that Realm advocates regard it as the main event in most rights litigation. Where it cannot, the Court declares the incompatibility. The declaration states that a named provision cannot be reconciled with a named section of the Act. It does not repeal the provision, does not disapply it, does not bind the minister and does not help the litigant, who loses.

Parliament has always complied, in every case but one, within a session. The exception is discussed below and is the single most quoted fact about the Court’s limits.

Why the line falls where it does

The distinction is not principled and nobody defends it as principled. It is the residue of 1866, when the guarantees were put into a statute rather than into the Charter because a Charter amendment required the polities and a statute did not, and the Lincoln ministry had the Commons and did not have the polities.

The remedy against legislation depends on the source of the guarantee. The Charter secures the structure, the federal division, the standing of the polities and the liberties declared in Article IX, and the Court may void a provision that contradicts any of them. The Rights Act gives those liberties detailed statutory form and adds protections of its own. Where a provision violates the Rights Act alone, the Court may declare incompatibility and leave it standing.

Every generation of Realm constitutionalists has proposed moving the Rights Act into the Charter and no ministry has ever done it, because the amendment procedure requires the polities and the polities have never all wanted the same thing on the same day. The proposal is made about once a decade, is agreed with by almost everyone, and does not happen. The latest is Rosa Delgado’s Fifteenth Amendment, a private member’s bill before the Commons with members of five parties behind it.

Composition and the seven Justices

The bench of seven

The Realm has never allowed its upper chamber a judicial role. The House of Lords sits as a court only on an impeachment, which it has done twice, and the Charter created this Court in 1783 rather than leaving final appeals to the peers.

The Court is composed of seven Justices, each styled Justice of the Royal American Supreme Court, headed by the Chief Justice of the United Kingdom of America, who presides, leads the Court’s administration and speaks for the judiciary as an institution, and who sits in judgment as one voice among seven.

Every Justice in office sits on every case. There are no divisions, no chambers, no rota and no larger panel convened for grave questions, because there is no larger panel to convene. A bench of seven is small enough that each Justice matters and each dissent is heard, and it produces a collegiate court rather than an appellate bureaucracy. When a Justice is absent through illness or leave the Court sits with six, and an equal division affirms the judgment below. It did so for the seven months of Justice Holt’s absence in 1945 and 1946, and in a handful of cases since.

Seven was chosen in 1783 as an odd number large enough to deliberate and small enough to travel, in a Realm where the Justices rode circuit for the first half-century, and it has never been altered. The junior Justice by appointment votes first in conference and speaks last, and the Court’s habit of giving the writing of a difficult judgment to its newest member, which the Realm regards as a lesson in humility, dates from the nineteenth century.

Enlargement, and the argument of the 1870s

Proposals to enlarge the Court to nine have been made three times, all of them by ministries that had lost a case, and all three were withdrawn before reaching a vote. The first came in 1834, from the ministry that had complied with Cherokee Nation v Brearley the year before and had not enjoyed doing so. The third came in 1937, from the Roosevelt ministry, after the Court struck down the recovery programme in Carrington Textiles two years earlier.

The second was the most serious, because it was joined to an argument about who should sit. In 1873 the Grant ministry lost Ransome v Alcott, the first of the Reconstruction enforcement cases to divide the Court, and early in 1874 it proposed adding two Justices. The proposal was answered with the question that had been put in Parliament for a year: whether a bench that was to hear the Rights Act’s cases ought to include a Justice drawn from the people the Act protected. A private member’s bill to reserve a seat for one failed. The Commons would not entrench a seat by race and the ministry would not be seen to have asked for it.

The answer was an appointment and not a statute. A vacancy by death occurred in the spring of 1874, the ministry used it to appoint Thaddeus Lyle, a Black lawyer who had been a judge of a Reconstruction polity court and a delegate to its convention, and withdrew the enlargement. The Court stayed seven and the bench changed. No seat has been reserved since, by statute or by convention, and the Realm regards that as the better outcome and a vindication of the Commission’s later work.

Firsts on the bench

The Court’s firsts followed the Governor-Generalship’s and came ahead of much else. The Realm had a Black Governor-General in 1873 and a woman Governor-General in 1889, and the Court followed with a Black Justice in 1874 and a woman Justice in 1923.

The civil-law Justice

The Realm has a civil-law polity, the Grand Duchy of Louisiane, and a bench that hears appeals from its courts. By convention, and not by statute, one of the seven is a jurist trained in the civil law, usually from Louisiane. The Commission does not reserve the seat and the Minister of Justice does not ask for it. The convention began with Justice Calderon in 1966, when the Court’s first civil-law appointment was made after it had wrongly decided a Louisiane succession case on the common-law reading of a Code article, and it has been observed at every vacancy since. The Court has not sat without such a Justice in sixty years.

The convention has a practical effect. A Louisiane appeal is heard by a bench that contains a member who has argued in the Code, and the Court hears written argument in French in any case from the Grand Duchy in which counsel ask.

Appointment, tenure and removal

Appointment

Appointment is a Crown act, performed by the Governor-General in the King’s name, on advice that is a deliberate hybrid built to keep the bench above party while preserving democratic accountability.

An Independent Judicial Appointments Commission, created in 1993, identifies and recommends candidates on merit; before it, the Lord Chancellor recommended. The Minister of Justice may accept a recommendation or require the Commission to reconsider, with published reasons, and may not substitute a name of their own. The Prime Minister carries the recommendation forward with the Minister, and each House then approves it by resolution. The resolution is moved by a law officer, who speaks to the candidate’s record, and is taken without a hearing and almost always without a division; no candidate has been rejected. The Governor-General then appoints.

The Chief Justice is appointed by the same route as any Justice, and may come from the bench or from outside it. Nathaniel Brooks came to the office directly from a federal appellate court, as did Taft and Warren from outside the judiciary altogether, and Brandeis and Cardozo were promoted from among the Justices.

The machinery has worked, and the evidence that it has worked is that nobody argues about it. The Realm has no confirmation hearings, no judicial nominations fought at general elections and no serious public argument about the politics of any sitting Justice. Appointment to the Royal American Supreme Court is not a political event, which visiting lawyers from countries with contested judicial appointments would find the single strangest fact about the institution. The two resolutions are the Houses’ only part in it, and the Houses have always treated them as a formality in the old sense of the word: a form that is observed because the observance is the safeguard.

Two features do most of the work. The first is the Commission, in place since 1993, through which every sitting Justice was appointed. The second is the retirement age. A Justice serves during good behaviour to a mandatory retirement age of 75, which means no seat is held for a generation, no appointment is worth an extraordinary fight, and the composition of the Court turns over steadily whoever is in office.

Removal

Removal is deliberately hard. Misconduct is investigated first by an independent Judicial Conduct Tribunal of senior judges; removal itself requires impeachment in the House of Commons and trial in the House of Lords. It has never happened. Two Justices have resigned during a Tribunal investigation, which is the nearest the process has come to being used.

Salary and conditions are secured by statute against the pressure of the government of the day. The Minister of Justice, though a Cabinet officer, has a role toward the Court that is purely administrative: courts funding, buildings and the machinery of justice. The judiciary answers to the Chief Justice; the ministry keeps the lights on.

Leaving the bench

Nothing in the Charter forbids a Justice to resign, and for the Court’s first century and a quarter nobody resigned except from age or illness. The convention that now governs a Justice who leaves for another office was made by three cases and has never been written down.

Taft resigned the Chief Justiceship in 1913 to become the seventeenth Governor-General. The vice-regal office stands above party and nobody thought the departure needed a rule. Charles Evans Hughes resigned in 1916, after six years as a Justice, to lead the Conservative and Crown Union, and the Realm discovered that it had no rule at all about a judge who left to lead a party. The profession supplied one: he would not return. Hughes agreed and said repeatedly that he would have refused had he been asked, and he never resumed judicial office after his premiership.

The convention, as it has been stated since, is that a Justice who takes political or vice-regal office resigns the bench and never returns to it. Earl Warren followed it in 1955, resigning to be commissioned the twenty-second Governor-General, and Sonia Sotomayor in 2013, resigning to be the twenty-ninth, the only Governor-General commissioned from the bench as an ordinary Justice. The rule extends to the Marshall silence: a former Justice who holds the vice-regal office gives no private view on any case, pending or decided, to anyone on the Court or off it.

The one leave the Court has ever granted is Justice Samuel Everard Holt’s, who was released from the bench in the autumn of 1945 to sit as the Realm’s judge at the Paris Tribunal for the trial of Henri Delacroix, and who returned in the spring of 1946. The Court sat six during his absence. The release was criticised at the time and has been criticised more since, because Holt had been one of the seven who upheld the internment two years before, a fact the defence did not know and the newspapers raised only after the war. The Court has not lent a sitting Justice to any tribunal since, and the convention is that the bench is not lent. Two retired Justices have served as judges of the League’s court after resigning from this one.

Jurisdiction, leave and the reference

Appeal

The Court is the final court of appeal of the Realm on federal questions: the Charter, federal statute, the Rights Act, the division of competence between the Realm and the polities, and the law of the Realm’s own institutions.

It is not the final court on a polity’s own constitution. Where a question turns on the meaning of a polity’s constitution and nothing else, the polity’s own supreme court is final, and the Royal American Supreme Court will decline the appeal. This is the most consequential jurisdictional rule in the Realm and it is the reason the great school-funding judgments of Kentucky and Arkansas, the exclusionary-zoning line in New Jersey, and the nineteenth-century equality judgments of Iowa are not part of this Court’s canon at all. They are law, they are important, and they belong to other courts.

Leave, and how little the Court takes

The Court chooses its cases. Appeal lies by leave, granted by the Court itself, and it grants very few: a few dozen judgments a year in a Realm of a hundred and eighty million people.

The criterion is stated as general public importance and is applied strictly. The effect is that most injustice never reaches the Supreme Court and was never going to, that the law of the Realm is in practice made by the federal appellate courts, and that a Supreme Court judgment is a rare and heavy object precisely because so little qualifies as one.

Original jurisdiction

The Court is also a court of first and last instance for a small class of disputes between governments. It has original jurisdiction over a suit between a polity and the Realm, over a suit between one polity and another, and over disputes arising under the Treaty of Honolulu and Alaska’s accession settlement, the instruments by which the two Kingdoms entered the Realm, which bind the Realm as well as the Kingdom. In none of these may the parties go elsewhere first. What the Treaty of Honolulu means within Hawaiian law is a question for the Supreme Court of Hawaiʻi.

The jurisdiction is used seldom, a handful of times in a decade, and it is slow. The Court does not take evidence itself in the ordinary run of cases. It appoints a Special Master, an appellate judge assigned to the case, who hears the witnesses, receives the documents and reports to the bench, and the Court then sits on the report. Boundaries and the great rivers were the historical staple: the allocation of a stream between two polities, the line of a border drawn by a surveyor two centuries dead, the ownership of an island that moved when a river did. The jurisdiction has produced less law than the appeals and a good deal more compliance, since a judgment between two governments binds both and neither has a ministry to blame.

The largest original case in a generation is State of Wyoming v Royal Parks Service, a suit by a polity against a federal institution, which is pending and is described below.

The reference

The government may ask the Court a question in advance. A reference is put by the Governor-General in Council, on ministerial advice, and asks whether a proposed measure would be within competence or compatible with the Charter.

References are a substantial part of the docket and the practice is inherited from the Crown federations rather than from the American tradition. It is used most heavily on federal competence, where a ministry planning a large programme would rather know in advance than build it and lose, and the Court’s reference opinions on the reach of federal power over trade, transport and health are the backbone of the modern federal state.

The Court dislikes references on rights and says so. Its consistent position is that a rights question decided on hypothetical facts is decided badly, and it has more than once answered a reference by saying that it would answer when somebody was actually affected.

A second route exists that is not a ministerial reference. Under the trust amendments to the Royal Parks constitution the Sovereign may, in the American capacity and on his own motion or on a petition of the Parks Commission, refer a question about the trust to the Court, and may pause an irreversible action until judgment. It has been used once, by Ernest V, in the Yellowstone matter. The Court appoints counsel to the reference to present the questions and the record, and a reference of this kind does not make the King a party seeking a result.

The Court and the polities

The Realm is an asymmetrical federation of forty-nine polities, a District and a Territory, and the greater part of the Court’s work is not about rights at all but about which government may do a thing.

The Court’s method is source of law rather than subject matter. It asks where the authority for a measure comes from rather than what the measure is about, which is why federal power over trade has grown by litigation while federal power over education has not: the first had a source and the second never did.

Culture, building, land, policing and education are polity competences and the Court has repeatedly declined invitations to find a federal power over them. Its standing answer is that a competence not granted was withheld, and that an argument from the importance of a subject is not an argument about where authority for it lies.

The rule cuts both ways and the Court has been careful to show that it does. Redbird v the March of Arizona (1991) applied the source-of-law rule to a polity’s attempt to regulate on the land of a treaty nation, on facts that made the rule expensive for the Realm rather than convenient, and the Court applied it anyway.

Before 1962: the Union’s money and courts

Until 1962 the Charter’s liberties and the Rights Act bound the Union and not its parts. The Eleventh Amendment of that year extended the liberties of Article IX against the polities, and the American Rights (Extension) Act, the same year, put the Rights Act into modern language and gave it the same reach. Federal law had no hold on a polity’s schools or a polity’s courts before them, and yet four of the Court’s best known judgments on segregation, the one that upheld it and the three that began to undo it, were given against polities and local boards in the years between.

The explanation is that each of the four turned on the Union’s own part in the separation. The Union was not forbidden to be a party to what it paid for, and it paid for a great deal. Halloway (1897) arose from a Louisiane school paid in part from the federal land-grant endowment, and the question was whether the Union could pay for separate schools; the Court held that it could, if they were equal. Shelley v Kraemer (1948) was a suit in the federal court at St Louis, between citizens of different polities, to enforce a racial covenant; the Court held that a federal court enforcing one was the Union acting, and the Union could not lend its courts to the exclusion of a purchaser. The Topeka judgment (1949) and Cleaves (1955) arose from school boards that drew federal school aid.

The consequence was larger than the holdings. Nearly every school board in the Realm drew some federal money, so a rule that the Union could not pay for separation was in practice a rule that the boards must choose between the money and the practice. Most took the money. A few did not, and the crisis at Little Rock in 1957 was the result. The Court’s judgments in these years could not reach a school that took no federal money, and a handful of private and unaided schools remained lawfully separate until 1962. The Realm’s lawyers regard the reasoning as the most ingenious that the Court ever produced, and it is the reason the Extension Act, when it came, ended a practice that the Court had already made expensive.

The Court and Parliament

The Realm holds that Parliament is sovereign and that the Charter binds it, and the two propositions are reconciled by the doctrine of bounded sovereignty: Parliament may make or unmake any law whatever, within the Charter, and the Charter is the instrument by which Parliament exists.

The Court uses its Charter power often and narrowly. It voids provisions of federal Acts several times in most years, nearly always on competence, and has voided a whole federal Act only a handful of times since its establishment in 1783. The power extends to the liberties in Article IX as well as federal competence and the structure of the federation. A conflict with the Rights Act alone permits a declaration of incompatibility, not annulment.

The relationship is characterised by the Realm as respectful and by the Court’s critics as deferential, and both descriptions are supported by the record. The Court has waited for Parliament on every great question of the Realm’s moral history. It did not lead on slavery, on segregation, on internment, on the treaty nations or on the security settlement. In each case Parliament moved first and the Court followed, sometimes by decades, which is treated in the assessment below because it is the most serious charge against the institution and is true.

The Court and the Crown

The Court sits under the Crown and wholly apart from it. Its Chief Justice holds offices outside the Court, in the machinery by which the Realm keeps a Governor-General and a Sovereign, and in each of them acts as a person and an officer of the Realm and never for the Court. The two statements are both true, the Realm sees no contradiction between them, and the section that follows is the account of how each is kept.

The Marshall silence

The independence of the Court from the vice-regal office was made into settled doctrine by a Governor-General who was, in another life, the greatest judge his country never appointed. John Marshall, whose historical counterpart built the edifice of judicial review from the bench, served here in the Governor-Generalship, and made a rule of conspicuous silence on pending cases. The man best qualified in the Realm to comment on the Court’s work declined to comment on it at all, for the length of his term, and the refusal became a convention that no Governor-General has broken since.

The convention is stronger than any statute could be, because it was established by the one holder of the office who could plausibly have claimed a right to speak. It is called the Marshall silence in the textbooks and is observed to the letter: a Governor-General asked about a pending case says that the matter is before the courts, and nothing else. It binds a Governor-General who was once a Justice, and the silence of Taft, Warren and Sotomayor about the Court they had left is the most severely tested instance of it.

The silence runs one way. The Court does not instruct the Crown, the Crown does not instruct the Court, and nothing in the rule prevents the Chief Justice from standing beside the Governor-General at an oath.

The Chief Justice as an officer of the Realm

The Chief Justice is second in the order of precedence, after the Governor-General and before the Prime Minister and the Speaker. The rank belongs to the person and not to the Court, and the Realm took the arrangement over from the Crown federations without adapting it.

The Chief Justice administers the oath of the Governor-General. Every transition in the office since 1865 has been an immediate succession, with the incoming holder commissioned and sworn on the day the outgoing one retires, and the oath at Government House has been given by the Chief Justice of the day. The oath has named the Rights Act since Frederick Douglass took it, and it was the Chief Justice who gave it to Taft in 1913, to Pershing in 1921, to Warren in 1955 and to Rockefeller in 1963. In 1955 and in 1913 the oath was given by a Chief Justice newly appointed to succeed a man who had resigned to take the commission himself, which is the sort of arrangement the Realm is content to let stand without comment.

When the office has fallen vacant, the Chief Justice has sat on the body that filled the gap. On the death of Henry Clay on 29 June 1852, the Chief Justice and the presiding officers of both Houses sat as a temporary Council of State until Winfield Scott was sworn on 2 August. When Edward Everett died on 15 January 1865 the same three sat again, this time under a Continuity Act of the previous session, until Salmon P. Chase was sworn on 15 February. The Council could complete routine assent and indispensable instruments and could do nothing else. Neither Chief Justice became Acting Governor-General, and neither Council has been needed since.

The Chief Justice is one of the three who meet on the evening of a King’s death. The meeting is called Three Sisters, after the rocks in the Potomac, and is held at Government House with the Governor-General and the Prime Minister. It has no written procedure, keeps no record and announces nothing. It exists so that the three can satisfy one another that the American succession still follows the British one, as Article II.8 of the Charter requires, before anything is proclaimed. It descends from the three offices that answered the question of 1840, when the assassination of Queen Victoria raised the question whether the American Crown passed automatically, and the Governor-General, the ministry and the Chief Justice of the day, Joseph Story, agreed in a month on an answer that nobody wrote down. The Court gave no judgment in 1840 and has given none since.

The Regency Act 1811

The Chief Justice is also one of the five officers who may declare the Sovereign incapable. The Regency Act 1811 was passed for the last illness of George III, and it provides that the incapacity of the Sovereign, in the American capacity, is declared by a majority of five officers on the evidence of physicians: the Governor-General, the Chief Justice, the Speaker of the House of Commons, the Lord Speaker, and the Prime Minister. The Lord Chancellor was the fifth officer until the 1990s, when the Lord Speaker took the place. The Regent acted for nine years, until the old King died.

The Act has been used once since, in the week of the loss of Kittyhawk. The five met in the Speaker’s rooms at Parliament House on 29 September 2028 and resolved to resolve nothing, because the physicians would not say that the injury was permanent. They met again on the morning of 30 September, were shown the physicians’ certificate, and all five signed the declaration, the Chief Justice, Nathaniel Brooks, among them. The Speaker added a note beneath his own signature. The Chief Justice signed in his office under the Act, as a person charged by the Regency Act and for no one else, and the Court was not consulted, was not asked, and has said nothing.

No rule on recusal

The argument at the Act’s drafting concerned two of the five. One was the Prime Minister, who is an interested party in any contest over the executive. The other was whether the Chief Justice could sit on a question that might later come before a court. The point was argued in 1811 and left, and the Act passed without a rule.

There is therefore no rule, by statute or by convention, on whether a Chief Justice who has signed a declaration may sit on a case arising from it. The Court has never been put to the question, and the Realm has never agreed what the answer would be. The textbook view is that the Chief Justice would sit, since the Court has no means of sitting without him except by sitting six, and a bench of six with its presiding Justice absent is an arrangement the Court has never used in a case of consequence. The contrary view is that a man who has signed a declaration has formed a view of the facts on which the Court might be asked to rule, and ought to stand aside. The House of Lords’ Constitution Committee announced, in the week of the declaration, that it would examine the Act, and the committee’s inquiry is expected to take the point among its others. It has not reported.

Nothing before the Court

No proceeding concerning the regency has been brought, and no proceeding concerning Article II.8 is before the Court. The Commons referred the Article II.8 question to the law officers of the Crown on 26 September, without a division, and the referral has not been withdrawn. The Lords sent nothing to the law officers and left the matter with its Constitution Committee. The Cabinet asked the Attorney-General for a note on the Regency Act on 28 September, and the note is not public.

A reference is within the Governor-General’s power, on ministerial advice, and none has been made. The Prime Minister is one of the five who signed the declaration, a fact which has been criticised and was not raised at the time, and a reference to the Court on a matter in which he has been an officer would be advised by him. The Court will not volunteer an opinion, and the Chief Justice has made no statement of any kind on the matter, as he has made none on the merits of any case before the bench.

An office and a bench

The Realm’s account of the arrangement is that the Court’s independence is of its function and not of its people. The Court decides cases between parties on the law, and the Chief Justice, in each of his other capacities, acts in a ceremony or in a formal declaration that the Realm’s own constitution assigns to him by name. A Chief Justice who administers an oath decides nothing. A Chief Justice who signs a declaration decides a question of fact on medical evidence, which a court is well suited to do and which the Court has never been asked to review.

The critics’ account is that the Realm has made the presiding officer of its final court a member of its succession machinery, and that this works in every case but the one the Realm has not had. No court has yet been asked whether a declaration under the Act was properly made, and the person who would preside over the answer is a person who made it.

Sessions House

The Court sits at Sessions House, in the quarter behind Ledger Square and off the Charter Axis, in a building it was given in the 1820s and has never sought to leave.

It is not on the Axis and was never meant to be. The Axis has three anchors, Columbia Palace at the west end, Parliament House on Charter Hill at the east, and Ledger Square with the public accounts between them, and the Court is not among them. It stands a street back, as Government House stands off on its own rise and Charter House sits in the Executive Quarter behind a black door. The capital’s rule that visibility and power run in opposite directions applies to the Court as it applies to everyone else.

The building is deliberately modest. It has no portico of consequence, no steps to speak of and no dome, and its principal front is nine bays of pale Indiana limestone with a plain entablature. The courtroom seats a hundred and twenty and is panelled in American oak. Visitors looking for it from the Axis routinely walk past the end of its street.

The modesty was argued about at the time and was intentional. The design chosen was the least monumental of the four submitted, on the reasoning, recorded in the building committee’s minutes and quoted ever since, that a court which may set aside an Act of Parliament should not also look like the sort of institution that would enjoy doing it.

The seal

The Court’s seal belongs to the same eighteenth-century tradition as the Great Seal of the Realm: a circular device in gold relief on a navy field, within a laurel border between beaded rings, its name around the upper rim and a Latin legend around the lower.

What distinguishes it is what it leaves out. The Great Seal is crowded and deliberately so: a crowned eagle, a striped shield, the arc of stars, olive and arrows, a column, a book, and a figure of Justice with her scales and her sword. The Court’s seal has a crown, a balance, seven stars and the year of the Charter, and nothing else at all.

The omissions are the argument. A sword would say that the Court compels, and the Court’s whole practice is a strong power used narrowly, one provision at a time. The balance hangs level with both pans empty, which is a court that weighs rather than one that has already decided. And the absence of a figure means the scales are held by nobody.

The seven stars are the one thing the seal adds rather than removes, and they are not the Realm’s arc. The Great Seal’s stars are the polities; these are the Justices, one for each of the seven who sit on every case the Court hears. They stand in a single unbroken arc of equal stars because the Court has no divisions, no chambers and no larger panel for grave questions, and because the Chief Justice presides as one voice among seven rather than above them. A court that cannot enlarge itself for a hard case says so on its own seal.

The legend, POTESTAS OSTENDAT MANDATUM, renders the principle at section 2.2 of the American Rights Act: let power show its warrant. The Court did not write that rule and does not own it. It carries it on the seal because the rule is the thing the Court exists to apply, and a court that stamps those words on every instrument it issues has committed itself in advance.

Manner

The Court’s manner is one of deliberate austere plainness.

Its Justices sit in simple black robes, without wigs. There is no scarlet, no ermine and no full-bottomed wig anywhere in the building, and the Realm’s Court is the plainest-dressed final court in the Crown’s realms by a distance that its sister courts occasionally remark upon.

Judgments are written in plain modern American English, on the principle that law enforced against a citizen must be law a citizen can read, and the Court has more than once sent a judgment back to its author for rewriting on that ground alone.

Opinions are signed and there is one opinion of the Court. A named Justice writes for the majority; those who disagree write dissents under their own names; concurrences are permitted and are discouraged. The practice was settled in the nineteenth century, the Court having delivered seriatim in its first decades, and the change was made deliberately so that the Court would speak once and be understood.

The Court keeps a low public profile. Its hearings are not televised, its Justices are not public personalities, and it does not comment on its own judgments. The authority is meant to be felt in the durability of what it decides rather than in the visibility of who decided it.

History

The founding, and Ellsworth

In the constitutional design of the Realm the Governor-Generalship, not the Chief Justiceship, is the apex of American public life, and the great early judges of American memory were drawn into it. John Jay and John Marshall both served as Governor-General. Neither ever sat on the Court.

The founding of the Court’s doctrine therefore fell to Chief Justice Oliver Ellsworth, a drafter of the Charter itself, who held the office from 1783 until he died in it in 1807, and it is Ellsworth rather than Marshall who is the Realm’s founding judge. It was under him that Amory settled that the power to void was real, and under him that the Court established the practices, the single opinion in embryo, the plain language and the refusal of advisory pronouncements outside the reference, that it still keeps.

The early nineteenth century

The Court’s constitutional authority deepened across the first half of the century. Under Chief Justice Jonas Whitcombe it decided Royal Attorneys-General v Carver and Dartmouth College v the General Court of New Hampshire, both in 1819, which between them fixed the reach of federal power and the inviolability of Crown charters, and under Joseph Story it decided Cherokee Nation v Brearley in 1833. The Court moved into Sessions House in the 1820s, the Justices stopped riding circuit in the 1840s, and the Court became a metropolitan institution with a settled place in the capital and a settled habit of deciding the division of powers between governments.

And then it failed, twice, in the two matters that mattered most.

The Second Founding

The Court was central to the settlement that followed the rebellion, and its part in it was to give the American Rights Act of 1866 the reading that made it usable: that the Act’s guarantees were legal rights enforceable in a court rather than declarations of principle addressed to ministers.

What it could not do was make the Act bind anybody but the federal authority, because section 4.2 said so, and for ninety-six years it did not. The Act’s reach over the polities came from Parliament in 1962, not from the Court. In the years between, the Court reached the polities only where the Union had a hand in what the polity did, as the section on the polities sets out.

The Reconstruction years divided the bench on the enforcement cases, and out of the division came the argument about its composition, the enlargement that was proposed and withdrawn, and the appointment of the first Black Justice. The Chief Justice of those years, Edmund Prescott, held the Court together through it, and his successor, Horace Hale, commissioned in the 1880s the reconstruction of the early reports from the Justices’ own notes.

The twentieth century

The Court of the early twentieth century was administrative in temper and was led in turn by Taft, by Hollister, by Brandeis and by Cardozo. It produced Threadgill in 1929, struck down the recovery programme in 1935, and in 1943 gave its worst judgment of the century. It admitted its first woman Justice in 1923. Its Chief Justice from 1938, Wendell Ashcombe, presided over Nakamura and over the housing and schooling cases of 1948 and 1949 that began to undo what the Court had done in 1897.

The modern Court

The American Rights (Extension) Act 1962 is the hinge of the Court’s modern history. It put the Act’s substance back in modern language, extended it to bind the polities and every public authority, and gave the Court machinery the 1866 clause had never had.

The twenty years that followed are the Court’s great period, and every judgment the Realm now teaches from the twentieth century falls inside them. The American Rights Consolidation Act 2008 is the most recent layer, folding the security powers taken after the May Day Bombings into the Act’s framework of warrant, record, proportionality and review.

The canon

The Realm teaches its constitutional history through a short list of judgments, and the list is unusually honest about the ones it lost. What follows is that list, as the Court’s own.

The foundations

Three judgments of the first half of the nineteenth century are the Realm’s constitutional law of federalism and of treaties, and none of them is taught as a drama, because all three were won.

Royal Attorneys-General v Carver (1819) arose when a polity attempted to tax a branch of the Second Bank of America within its borders out of existence. The Court held that the Charter’s enumerated powers carry with them the means necessary to exercise them, so that a power over the public credit implies a power to charter a bank, and that a polity may not tax a federal instrumentality, because a power to tax is a power to destroy. It is the foundation of implied federal powers and is cited in essentially every argument about the reach of Parliament. See the American pound.

Dartmouth College v the General Court of New Hampshire (1819) was the Crown-charter case argued by Daniel Webster. The General Court had by statute reconstituted the governance of a college that held a Crown charter, and Webster’s case was that a charter granted by the Crown is not a legislature’s to rewrite. The Court accepted it. Crown charters are inviolable against provincial legislative revision, and the judgment fixed the terms of the provincial and national relationship for decades. New Hampshire lost and has cited the precedent ever since.

Cherokee Nation v Brearley (1833) is the foundation of treaty jurisprudence in the Realm. The Cherokee Nation sued in the Realm’s own courts to restrain its removal. The Court held that a treaty made in the sovereign’s name bound the sovereign’s ministers, that the Nation was a party capable of enforcing it, and that no statute in general terms would be read to abrogate a specific treaty guarantee unless it said so in words. The ministry complied, the removal was suspended, and for two years the judgment held. See Oklahoma-Sequoyah.

The three failures

The Court’s worst judgments were unanimous, and the Register states this first because it is the most important fact about them. There is no dissenting Justice to point to, no minority who saw it at the time, and no line of reasoning preserved for a later Court to adopt. In each case the seven agreed.

Rutledge v Ordway (1853) is the worst. The Court held that Article IX secured the liberties of subjects, and that the enslaved, being property in law, were not among them. The Charter’s central promise was thereby made conditional on a status the Charter itself did not define, and the judgment supplied the legal architecture of the decade that followed. Seven Justices signed it and none dissented.

Halloway v the Grand Duchy of Louisiane (1897) held that separate provision could be equal provision. Segregation stood on that sentence for fifty-eight years. The Rights Act had by then been in force for thirty-one, and the judgment arose from a Louisiane school paid in part from the Union’s land-grant endowment. The Court held that the Union could pay for separate schools if they were equal, and read the guarantee of equal protection as satisfied by equal expenditure, which nobody on the bench appears to have tested against the facts. Again unanimous.

Nakamura v the Crown (1943) upheld the internment. The Court accepted the ministry’s assertion of military necessity without examining the evidence for it, and the record now shows the evidence was thin at the time and known to the ministry to be thin. The Court did not ask. Unanimous again. Justice Holt was one of the seven.

Three failures, seventy years apart, all unanimous. The pattern is the Court’s own and it is not an accident of composition, since none of the three benches shared a member with either of the others. What they shared was a settled institutional reluctance to disbelieve the government of the day on a matter the government said was grave.

A fourth judgment of the same character was not unanimous and is not counted. Weatherby v Kinnaird (1856) held, four to three, that a territorial legislature had no authority to determine the status of property lawfully held under the law of a polity, and so destroyed popular sovereignty as a working formula in the territories. It did not decide that Parliament lacked power to exclude slavery, and the majority said so. The three dissenters are the nearest the Court came, in those years, to a Justice who saw it at the time. They wrote very little, and the Realm remembers them less than it remembers the four.

Ex parte Craddock

Against those stands the Court’s one wartime success, and it came earliest.

Ex parte Craddock (1863) settled, during the rebellion, that a commander in a polity whose courts were open could not detain a civilian on suspicion. Habeas corpus was never suspended anywhere in the Realm during the rebellion, which the Realm calls its proudest constitutional fact about the period, and Craddock is the judgment that made the boast true rather than rhetorical.

Its application in Missouri, where a depopulation order was drafted and stopped because there was no lawful way to carry it out against people whose courts were sitting, is the case the Realm teaches to show what the judgment was worth.

The enforcement split

The Reconstruction ministries put enforcement of the Rights Act and the Charter’s new amendments before the Court case by case, and the Court divided on them, and the division lasted for decades.

Ransome v Alcott (1873) read the Act’s federal limit as a boundary the Court had no business moving. A federal offence had to rest on a federal right, the right had to be identified with precision, and a court that allowed a prosecution to proceed on a general appeal to citizenship was extending federal criminal jurisdiction by construction. The Grant ministry lost, and proposed to enlarge the bench. Fenwick v the Realm (1876) went the other way. It held that the Act’s non-derogable core was a statement about persons and not a federal courtesy, that a right which evaporates at a polity boundary is not a right, and that the Charter’s own guarantees ran everywhere.

Neither line ever wholly prevailed. The practical effect was that the availability of a prosecution depended on which circuit panel heard the appeal, that convictions obtained in one circuit were reversed on facts that had sustained them in another, and that the law officers spent a great deal of a ministry’s time and credit on cases they lost for reasons that had nothing to do with the evidence. The split is treated at length in the Grant ministry.

Threadgill

Threadgill v the Commissioners of Flood Relief (1929) is the most cited judgment in the Realm’s administrative law and it decided two things. It was written under Chief Justice Brandeis.

An emergency is not an exception to the Act. The Rights Act contains no clause suspending itself in a flood, a famine or a war, and the Court declined to read one in.

And federal authority is liable for what it permits a private party to do on its behalf. The Commissioners had delegated the running of the relief camps and had then disclaimed responsibility for what was done in them, and the Court held that a public duty is not discharged by contracting it out.

The facts came from the Mississippi flood and the judgment is one the Realm is entitled to be proud of. It also arrived too late for the people it was about, which the judgment itself acknowledges in a passage that is quoted more often than its holding.

Carrington Textiles

Carrington Textiles v the Recovery Administrator (1935) struck down the first design of the recovery programme as an unlawful delegation of the legislative power that the Charter vests in Parliament. The programme had allowed industries to agree codes of production, price and labour practice under federal supervision, and the Court held that Parliament could not hand to an administrator the power to make the codes without a standard to guide him. The judgment cost the Roosevelt ministry its first design and, in 1937, produced the third proposal to enlarge the Court, which was withdrawn when the ministry’s second design was drafted to meet the objection. The Court has not struck a delegation since. See Franklin D. Roosevelt.

Shelley and Topeka

Shelley v Kraemer (1948) concerned a Black family from another polity who bought a house in St Louis subject to a racial covenant, and a neighbour who sued in the federal court to enforce it. The Court held that the covenants were private and lawful, that a federal court enforcing one was the Union acting, and that the Union could not lend its courts to the exclusion of a purchaser by race. The judgment did not render the covenants void; it rendered them unenforceable in the federal courts, and the polity courts followed within a few years. See Missouri.

Ames v the Board of Education of Topeka (1949) took Halloway’s own test and applied it honestly. The board drew federal school aid, and the Court looked behind its expenditure figures, held the Topeka schools unequal in fact and ordered the children admitted. It was the first judgment since 1897 to examine the facts, and it held that equal expenditure was no answer to an inequality that could be shown. It did not say that separation was unequal in itself. That came six years later. See Kansas.

Cleaves, and Warren’s resignation

Cleaves v the Board of Schools of Talbot (1955) overruled Halloway outright and held that separation was inequality on its face. The board drew federal school aid, and the Court held that the Union could not pay for separation of any kind.

It was unanimous, and it was made unanimous on purpose. Chief Justice Earl Warren, who had come to the Court in 1953, spent the better part of two years securing a bench that would speak with one voice, on the judgment that a decision of that kind delivered four to three would be resisted for a generation and one delivered seven to nothing could not be.

He then resigned, for two reasons that were one reason. In the summer of 1955 he was to be commissioned the twenty-second Governor-General, and the commission required him to resign the bench. His second reason he gave privately, in a letter to the other six that is now published: that he would have resigned in any case, well short of the retirement he was entitled to, so that a judgment of that weight should not be available to be called his. A Chief Justiceship of two years produced the most important judgment in the Realm’s modern history and then ended so that the judgment would belong to the Court.

The Realm has never quite known what to do with this. Warren is the most admired figure in the Court’s history and the shortest-serving Chief Justice of the modern era, and the two facts are the same fact. His successor, Gideon Tolliver, was appointed in July and gave the oath to Warren himself on 17 August.

Ishida

Ishida v the Realm (1967) is the judgment the Realm teaches first, and it is the Court’s greatest because of what it was willing to say about itself.

It arose under the new Extension Act, brought by a woman interned as an infant in 1942 who sought a declaration that what had been done to her family had been unlawful when it was done. The ministry’s defence was that the question was closed, because the Court had decided it in 1943.

The Court held for her, and in doing so expressly overruled both Nakamura and Rutledge.

Nakamura fell on the ground that an assertion of military necessity is a question of fact and that a court which declines to examine the evidence for it has not adjudicated but abstained. Rutledge fell on the ground that the Charter’s guarantees run to persons and not to a class of subjects defined by statute, which meant that the Court had to say, a hundred and fourteen years late, that its own 1853 reasoning about who counted had been wrong when it was written.

The passage in which it says so is the most quoted paragraph in Realm law. Its substance is that a court which was unanimous in error is not thereby excused, that the absence of a dissent in 1853 and in 1943 is evidence about the Court rather than about the difficulty of the questions, and that an institution which asks the Realm to trust its judgment must be willing to say plainly when its judgment was worthless.

The Chief Justice, Gideon Tolliver, wrote almost none of it. He gave the writing to the most junior Justice on the bench, Ines Calderon, on the reasoning that the Court’s repudiation of itself should be written by somebody with no part in what was being repudiated.

The Extension Act line

The twenty years after 1962 are the Court’s great period and they are a single body of work.

Kettleman v the Realm (1966) is the first case under the Extension Act and is the reason the Act operates at county level at all, the Court holding that a public authority for the Act’s purposes is any body exercising a public function, whatever its charter says.

Wardell v the Commissioner of Police for the Columbia District (1969), the judgment of the Court delivered by Justice Calderon, is the leading authority on section 2.2, decided on facts of complete banality: a man stopped in the street and asked to account for himself. The holding is that power must show its warrant, that an officer who cannot state the lawful basis of what he is doing is not exercising a power but committing a wrong, and that the burden is on the authority throughout. It is the judgment the seal’s legend refers to.

Ivey v the Minister of Housing (1974) established the structural remedy, holding that a court which can declare a programme unreasonable can also require a lawful one and retain the case until it arrives. It is the Court’s most powerful tool and it is used about once a decade.

Vondracek v the Trustees of the Fourmile and Beaver Drainage Districts (1976) read a household water minimum out of section 36, in a Part of the Act that contains no water section at all, and is the high-water mark of the Court’s willingness to find substance in general words. It has never been extended and the Court has twice declined to extend it, which is generally read as the moment the great period ended.

The treaty nations

Redbird v the March of Arizona (1991) applied the source-of-law rule against a polity on nation land, and Nation of the Ponca v the Minister of Transport (1997) is the leading authority on the duty to consult.

The duty is procedural and the Court has consistently declined to make it substantive. A federal authority must consult a treaty nation whose interests a decision affects, must do so before the decision is taken rather than after, and must be able to show what it did with what it heard. It need not agree. The nations’ standing position is that a duty to listen is not a duty to stop, and the Court’s answer, given more than once, is that the remedy they want is legislative.

The security cases

The Court drew the non-derogable line in 2006, in the weeks after the May Day Bombings, holding that section 9 of the Act, which lists what may never be done to a person whatever the emergency, meant what it said. The Consolidation Act of 2008 was built around that holding.

And then very little. Adeyemi v the Chief Constable of the March (2011) is the first major decision under the Consolidation Act. Ferreira v the Signals Directorate (2014) held that a person listed by the Realm has a right to be told, in some form, that the Realm has done it: the first crack in the invisible harm, and on any candid reading a small one.

Ferreira remains the only crack. The Court has declined leave in every listing case since, on grounds that are procedural in each individual instance and, taken together over fourteen years, amount to a decision. The security settlement’s characteristic harm is being wrongly listed and never told, Ferreira addressed the never told and not the wrongly listed, and the Court has not returned to it.

Other leading judgments

The Court’s canon is wider than the cases above, and the table gathers the judgments that other articles of the Register cite as authority, with the article that carries each.

The reports, and how the Realm cites

Judgments are published in the Royal American Reports, cited by year, volume and page in the form the Realm has used since 1799, and the citation of a Supreme Court judgment is one of the few pieces of formal apparatus the Court has never simplified.

The reports are the Realm’s constitutional memory and they are complete. Every judgment since the first sitting is in print, the early volumes having been reconstructed in the 1880s, under Chief Justice Hale, from the Justices’ own notes where the reporter’s had been lost, and the reconstruction is itself a minor scandal of Realm legal history because two judgments of the 1790s exist only in a version prepared eighty years after the fact.

Dissents are reported in full and always have been, which was not obvious in 1783 and was settled early on Ellsworth’s insistence. His stated reason, that a court which publishes only its conclusions is asking to be believed rather than read, is quoted at the front of every volume.

The bar

Advocacy before the Court is a small and specialised trade. A few dozen advocates appear regularly, argument is oral and short, and the Court reads the papers in advance and expects counsel to know that it has.

The Court’s questioning is the part observers remark on. Seven Justices interrogating a single advocate for ninety minutes produces a hearing that is closer to a viva than to a speech, and counsel who attempt a set piece are stopped. The convention that an advocate must concede a point that cannot be defended, rather than defending it, is enforced by the Justices in terms that are recorded in the transcript and remembered in the profession.

There is no separate Supreme Court bar by qualification, any advocate of the Realm having a right of audience, and there is a very firm one by practice.

The clerks

Each Justice appoints two law clerks annually from among recent graduates, who serve a single year and do not return. The institution is small, competitive, and the principal route into the Realm’s constitutional profession.

The clerkship is also the Court’s main channel to the outside world and the Court knows it. A convention of absolute confidentiality about deliberations is imposed and has held remarkably well: there has been one serious breach in two centuries, in the 1950s, and the resulting rule that a clerk may publish nothing about their year until every Justice they served with has died is still in force.

Riding circuit

For the Court’s first half-century the Justices rode circuit, sitting individually or in pairs in the federal courts of the polities for part of each year and coming together at New Westminster for the term.

The practice was hated and was formative. It was physically punishing, it consumed half the year, and two Justices died on the road. It also meant that the men deciding the Realm’s constitutional questions had personally heard cases in Georgia, in Massachusetts Bay and on the western frontier, and Realm legal historians treat the abolition of circuit riding in the 1840s as the moment the Court became a metropolitan institution.

The Court has never entirely stopped apologising for that. It sits, once a year, in a polity other than the Columbia District, in rotation, hearing whatever is on the list. The sitting is ceremonial in effect and is defended on the ground that a court that has not been outside its own city in a generation should not be surprised when the country finds it remote.

The Chief Justices

Twenty-two men and women have held the office. The Realm’s memory of them is uneven and turns almost entirely on three.

Oliver Ellsworth founded the doctrine, established the reports and the dissent, and is the Realm’s founding judge in the place Marshall occupies elsewhere.

Earl Warren held the office for two years and produced Cleaves.

And the Chief Justice of the Ishida Court, Gideon Tolliver, whose name is much less remembered than the judgment, and who by all accounts wrote almost none of it, having given the writing to the most junior Justice on the bench.

The remainder are known to specialists. The Realm does not have a cult of the Chief Justiceship, which follows from the Governor-Generalship being the apex of public life and from a bench on which the Chief Justice is one vote of seven.

The Chief Justice of the day gave the oath at every vice-regal succession listed in the Governor-General article, and the roster is the record of whose hand that was.

The Court in civic life

The Court is taught, and the syllabus is unusual. Realm schoolchildren learn the three failures before they learn the successes, on a curriculum decision taken in the 1970s and periodically attacked since, and the standard school text opens with Rutledge rather than with Amory.

Its judgments are not televised and its Justices are not known by sight. Polling regularly finds that most Realm citizens cannot name a single member of the Court, which the Court regards as satisfactory and which its critics regard as the natural condition of an institution that touches very few lives directly.

What the Realm does know is the seal’s legend. Let power show its warrant is a phrase in ordinary use, invoked at a traffic stop and in a select committee alike, and its migration from section 2.2 of a statute through a judgment and a seal into common speech is the Court’s largest cultural achievement by a wide margin.

The one refusal

Parliament has complied with every declaration of incompatibility but one, and the exception is the fact every Realm constitutionalist reaches for.

A declaration of 1988, on a federal immigration provision concerning persons detained pending removal, was answered by a ministry that laid a formal response declining to amend it. The provision stands. No later ministry has withdrawn the response, and the Court has no further step available to it: it has said what it can say.

The Realm’s usual description of this is that the system works, with one exception. The Register notes that a declaration refused once, openly and without consequence, is the only direct evidence available about what a declaration is worth when a government simply declines.

The present Court

The Court is a cautious bench. Its members were appointed in mid-career, mostly from the federal appellate courts, and its recent record is one of deference to Parliament on rights questions and of firmness on federal competence, which is the reverse of the pattern of the great period.

The seven

The Court has three women and four men. One of the seven is Black, one is of Indigenous descent, and one is the civil-law Justice from Louisiane. They come from six regions of the Realm, and none of them is known by sight to most of the people whose law they decide.

The Court has not voided a federal provision on a ground of liberty in twenty years, although it voids provisions on competence as often as any bench before it. It has issued declarations of incompatibility at about the historical rate. It has declined leave in every security case since Ferreira. Two cases are before it, each the largest of its kind in a generation, and the same seven will decide both.

The bench’s own account of its caution, given in lectures rather than in judgments, is that authority is a stock rather than a flow: that the Court’s position rests on never having been defied, and that an authority spent on a fight it might lose is an authority gone.

State of Wyoming v Royal Parks Service

State of Wyoming v Royal Parks Service is a challenge to the Greater Yellowstone Wildlife Migration Compact, brought by Wyoming against a federal institution and heard in the Court’s original jurisdiction. It is consolidated with the Sovereign’s reference of the constitutional issue under the guardian power of the Royal Parks trust, which Ernest V made in his American capacity after evidence that broad culling and permanent corridor construction might make the legal question practically irreversible. Montana supports the compact and Idaho has intervened on narrower land-use and compensation questions. Counsel appointed under the Court’s rules presented the questions and the record.

A Special Master took the evidence on ecology, constitutional history, compact practice, livestock and Indigenous government, and the bench heard the rest. Submissions were made public, with the exception of knowledge controlled by the affiliated nations and protected personal material. The hearings are concluded and judgment is reserved. The King’s pause on broad culling and permanent corridor construction remains in force until it is given. The Court has said nothing on the merits and the Chief Justice has made no statement, and the possible judgments run from complete validation to complete invalidation, with several in between. The case is treated at length in the Royal Parks article.

The Tenants’ Case

Amalgamated Tenants and the Cooperative Congress v the Attorney-General is the case on whether Part V of the Rights Act contains a right to income security. It was commenced in 2025, heard at first instance in 2026 and on appeal in 2027, and argued before the seven over eleven days in the spring of 2028. Judgment is reserved. The applicants are a tenants’ union and a cooperative federation affiliated to the Left and Solidarity Bloc and seek a declaration and a plan; they do not ask the Court to fix an amount. The Attorney-General’s answer is section 40.2, which forbids a court to direct the appropriation of public money, and the historical point that Part V was built one section at a time, each after a political fight, and none of them was income. The standing ruling under section 57.2 is itself a leading authority. The case is set out in the American Rights Act article.

The press reports that the bench spent most of its time with the history of Part V and put very few questions on the merits of the subsistence claim. It has indicated nothing else. The bench is unreadable, which is the Court’s own habit, and neither judgment has a date.

The Loreto seats

Ambrister v Attorney-General for America asked whether the five seats of the Territory of Loreto in the House of Commons, apportioned on a Mexican census taken before the peninsula changed hands, were seats at all. Alternative for the Realm brought it in its leader’s name. On 25 August 2028 three Justices refused to hear it before the general election, saying that a constitutional question does not become more urgent because a government has fallen on it. It was argued on 10 and 11 October, and on 25 October 2028 the seven held the seats valid, unanimously. The Treaty of La Paz was received into the Realm’s law by Act of Parliament, which gave the Territory five members on the census the Treaty named; Parliament may choose another census, and the enumeration may give it one, but until it does the members sit on the one it chose. The Court went further than the case needed and held that every vote cast from the seats was lawfully cast and counted, naming the division of 26 July that brought down the Valdez ministry. The Chief Justice’s summary contained the sentence “A seat is not less a seat because the vote cast from it was decisive.” The claimant accepted the judgment the same morning.

Assessment

The Royal American Supreme Court holds two powers over legislation, and the distinction between them is the whole of the Realm’s constitution in a sentence. Under the Charter it may pronounce an Act void. Under the Rights Act it may only say that an Act cannot be reconciled with the liberties the Realm says it holds most dear. What may be struck and what may only be disapproved was settled in 1866 for reasons of parliamentary arithmetic, and the arithmetic has governed the Realm’s rights ever since.

The Court’s authority has never been tested, and the Realm regards this as a comfort. No ministry has defied it. No Act enlarging or curbing it has passed. No serious political movement has proposed either. An authority never challenged is an authority nobody thinks challengeable, and Realm constitutionalists say this in a tone of settled satisfaction that a foreign reader may find complacent.

The Register records five things against it, and they are related.

Its worst judgments were unanimous, so there is nobody to point to as having seen it at the time, and Ishida had to say so in terms.

It waited for Parliament every time and never once got there first. On slavery, on segregation, on the reach of the Rights Act, on the treaty nations and on the security settlement, the legislature moved and the Court followed. The one exception is Craddock, which is why Craddock is loved. Its reasoning against segregation before 1962 depended on the Union’s money, which reached a school only because the school took the Union’s pay.

It takes so few cases that most injustice never reaches it, and the leave criterion is applied by the same seven Justices whose caution is at issue.

The declaration of incompatibility lets it disapprove without deciding, and the Court uses that. It is a remedy that costs the Court nothing, requires the government to do nothing, and leaves the person who won the argument having lost the case.

And its authority is untested, which means it may not be there. The Court’s position rests entirely on the fact that nobody has tried, and the one time a ministry declined to act on a declaration, in 1988, it simply declined, with no consequence of any kind.

None of that makes it a weak court and the Register does not say so. It struck the non-derogable line within weeks of the worst attack in the Realm’s history, when nobody would have criticised it for waiting. It overruled its own two worst judgments in one document and explained why they were worthless. It opened its bench to a Black Justice in 1874, the year after the Realm’s first Black Governor-General, to a woman in 1923, thirty-four years after its first woman Governor-General, and to a Justice of Indigenous descent in 1972. It is obeyed, it is trusted, and it is not political in a way that would astonish most comparable countries.

What it is, is a court that has been exactly as brave as the Realm has been, and never braver. That is a fair description of most courts. It is a harder thing to say about one whose seal carries the words let power show its warrant.

Chronology

Trivia

See also

• American Rights Act, which the Court may only declare against, and the Extension and Consolidation Acts that built its modern practice
• Charter of Union of the American Colonies, Article X.10 of which is the power to void
• Parliament of the United Kingdom of America, whose sovereignty the Court calls bounded
• Governor-General, whose Marshall silence keeps the Crown clear of the Court, and whose oath the Chief Justice administers
• Kittyhawk, in which the Chief Justice signed the Regency Act declaration
• The plans for the death of the King, which set out Three Sisters
• Speaker of the House of Commons, the fellow officer of the Regency Act
• Royal Parks System, whose Yellowstone compact is before the Court
• Left and Solidarity Bloc, to whose affiliates the Tenants’ Case belongs
• The May Day Bombings, after which the Court drew the non-derogable line
• Crown in right of America, in whose name justice is done
• The Dominion Era, in which Amory made the Charter enforceable in an American court and appeals to London stopped being brought

Categories

Institutions · Law & the Charter · The United Kingdom of America