So much for ‘Take Back Control’.

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On 23 June, the UK voted to leave the European Union on the back of a successful campaign from Vote Leave which emphasised taking back control and regaining sovereignty from the European Union. Indeed Vote Leave’s slogan was ‘Take Back Control’, and the likes of Boris Johnson and Michael Gove repeated this phrase endlessly throughout the campaign, it seemed to be the answer to every question posed of them.

Alas, when the UK judiciary did take back control last week, those on the Leave side of the debate were not best pleased.

Last week, High Court judges ruled that Parliament had to have a vote on the triggering of Article 50 of the Lisbon Treaty, the article which starts the process of withdrawing from the EU and which has to be triggered before any formal discussions can begin between the UK Government and the EU on a trade deal amongst other things. Theresa May and her Government felt that they should be able to choose when to trigger Article 50 themselves, and has such they have suggested that they will be appealing the High Court’s decision in the Supreme Court in due course.

The result of this court case led to huge anger from Leave campaigners like Nigel Farage, Iain Duncan-Smith, Suzanne Evans, and of couse The Daily Mail, all of whom cried (as they always seem to) that the ruling amounted to some sort of establishment stitch up.

However, wasn’t this exactly what they wanted?!

Their whole campaign to Leave the EU (which in economic terms was nonsensical) rested on the idea that the UK’s sovereignty was being impeded by the European Union. So you would think that there would be some pleasure in seeing UK Courts taking control of the situation.

But no, all we got was anger and even a suggestion from UKIP Leadership candidate Suzanne Evans that we should end the independence of the judiciary, with judges being elected to their positions — what a disaster that would likely turn out to be.

I suppose ‘Take Back Control So Long As The Decisions Made Are In Our Interest” wasn’t catchy enough for the big red battle bus.

What Leave voters need to understand (and very few of them seem to) is that the court case is not about stopping Brexit, indeed the vast majority of those who voted to Remain accept the result of the referendum. Full disclosure: I voted Remain myself, and was strongly in favour of remaining. Although I am still of the opinion that the referendum should never have been called it ultimately was, and I am willing to accept the result. However, just because the Leave campaign won, doesn’t mean that the views of the 48 percent who voted Remain should be completely ignored, we should be seeking some sort of consensus in order to unite the country. Equally, amongst the 52 percent who voted Leave, many voted for completely different things. Some voted to completely withdraw from Europe and all its institutions, some voted purely to retake Parliamentary sovereignty in terms of legislation, some voted purely to reduce immigration, many voted to leave the EU but still harboured a desire to remain inside the Single Market — including former Conservative MP Stephen Phillips who resigned on Friday.

Yes, the public have voted to Leave the European Union, but that does not mean we should just Leave straight away without the Government even thinking about it first. In my mind, there is surely no better way to do this than to put the issue to Parliament, to individuals who deal with complex legislation every day.

In addition, it is important for the electorate to now where the government stands on negotiating a deal with the European Union — where the government’s ‘red line’ is, so to speak. Given that Theresa May hasn’t been elected as Prime Minister, this is even more important. Yes, I know that technically we have a Parliamentary system where we don’t elect the Prime Minister, however I personally think that the vast majority of people cast their vote based in large part upon the party leaders who are the prospective Prime Ministers.

On this basis, it seems right that the government should call an early election in order to gauge public opinion about what sort of Brexit the electorate wants. For the government to go into negotiations in effect blind, means that there will definitely be a vast majority of UK citizens who feel disappointed with the results — likely including many who voted Leave on June 23.

As for those Leave campaigners who are still criticising the judges who made last week’s decision, they are playing a very dangerous game. As one of the more sensible Leave campaigners, journalist Iain Martin wrote in The Observer on Sunday: “we could try electing judges, or ordering judges to disregard and ignore the rule of law on the order of politicians, but the international historical precedents do not suggest it ever ends well.” Those Leave campaigners should stop to discredit and promote the illegitimacy of these judges. For them to continue to do so could be hugely harmful to the rule of law in this country.

They should remember that the decision is not a stitch up which aims to stop Brexit, but it is simply the court ensuring that Parliament plays its rightful role in the process, by providing a check to the government’s power.

In terms of the Supreme Court, this is the most important presidential election in years.

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The Supreme Court.

When Supreme Court Justice Antonin Scalia died on 13 February, no one quite expected just how bloody the battle to choose his replacement would come. However, given that Scalia was one of the most conservative members of the Supreme Court, and the Republicans hold a majority in both houses of Congress it was, in hindsight, rather predictable.

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Antonin Scalia, whose death created a Supreme Court vacancy.

 

Nonetheless, it is rather rare for the majority party in Congress to not even consider a nomination made by the sitting president, as was the case when the Republicans in the Senate made clear that they would not be considering Barack Obama’s nomination of Merrick Garland under any circumstances.

 

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President Obama nominates Merrick Garland to the Supreme Court.

On the face of it Garland was a consensus pick. There is little doubt that Obama could have chosen a far more overtly liberal justice in order to fill the vacancy left by Scalia. However, he recognised that with his party in the minority in the Senate, he would have to appease Senate Republicans somewhat. What he didn’t count on however, was that the GOP would have no inclination whatsoever to even consider his nominee.

The rationale of Senate Republicans was that withholding confirmation for Garland was necessary in order to, “protect the will of the American people”.Suggesting that with the Presidential election ongoing, the new President should be the one who is allowed to pick the next justice. However, this was somewhat undermined by the comments of two Republican Senators.Senator Jeff Flake of Arizona suggested that Garland should only be confirmed if Hillary Clinton wins the Presidency, because Garland is less liberal than any nominee Clinton is likely to put forward, suggesting that if Clinton win then, “we ought to approve him quickly.” Senator Orrin Hatch of Utah concurred with Flake’s view. Comments such as this suggest that Senate Republicans were motivated far less by democracy than by partisan concerns regarding the direction of future legislation.

Realistically, the reason for the unwillingness of Senate Republicans to give Garland a confirmation hearing was due to his significance to the future direction of the court.

Following the death of Scalia, the court is locked 4–4 between Democratic and Republican appointees. If Garland were to be confirmed then there would be majority of Democratic appointees for the first time since 1969. This has serious significance for the direction of future legislation.

However, Merrick Garland is just the tip of the iceberg when it comes to how significant this Presidential election is to the future make-up of the Supreme Court.

It has been suggested that the next President might be able to appoint up to four Supreme Court justices, with Donald Trump even suggesting that they might be able to appoint five if Garland hasn’t been confirmed prior to the inauguration.

The reason for this is that many of the Supreme Court justices are now getting to the point where they might consider retirement. The left-wing justice Ruth Bader Ginsburg is now 83, whilst centre-left justice Stephen Breyer is 78. If Clinton is elected come November, then expect these two to retire. Likewise, the relatively centrist Anthony Kennedy is now 80, and surely nearing the end of his career.

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Ruth Bader Ginsburg, Stephen Breyer, and Anthony Kennedy are all nearing the end of their careers on the bench. 

Each of the last four Presidents has had the opportunity to appoint two Supreme Court Justices. This means that already it is looking as though the next President is going to have a outsize influence on the makeup of the court, meaning a sizeable influence on policy for a generation.

Earlier in this election, Donald Trump took the slightly unusual step of releasing a list of prospective Supreme Court justices, who he would look to appoint were he elected in November. Unsurprisingly, most of the list had impeccable conservative credentials. Trump’s reasoning for this is that he wants to appeal to Republicans who want to protect recent Supreme Court decisions such as Citizens United which prohibits the government from restricting the election spending of corporations; and District of Columbia v. Heller which further protected the right to bear arms. Whilst the also wants to attract voters who are keen to see the rolling back of Roe v. Wade and Obamacare. Conversely, Hillary Clinton and the Democrats are on the complete opposite of this debate.

Both candidates clearly understand the importance of this election in terms of the direction of legislation in the future. Given that Supreme Court Justices are given a lifetime appointment to the court, these decisions will affect the direction of legislation well beyond the presidencies of either Trump or Clinton.

This only serves to make this election even stranger: the fact that the two most unpopular presidential candidates in history, will have perhaps more impact on legislation than any of their predecessors.