From One Democracy to Another: Your Supreme Court Is Not OK

Hello my lovelies

From this side of the Atlantic, many of us grew up with a fairly simple story about your Supreme Court.

It was where rights were defended when politicians lost their nerve1. It contained the wisest of wise elders in black robes. The branch of government that, whatever its ideological lean, ultimately kept you tethered to your Constitution and the rule of law. The balanced appeal court of last resort.

The place where wrongs could be righted.

The concept was so good that SCOTUS was one of the apex courts we looked at in the UK, when we founded our own Supreme Court in 2009.2

So, though it pains me to say it, this story is now closer to myth and fable than reality from what I’m seeing over on this side of the pond.

Now, I know this is absolutely not news to you - and I hear your pain and frustration about the sheer acceleration and trajectory of the changes that have taken place. But I still need to write about this - if not for you, then for me - to make sure that there are sufficient voices prepared to publicly document what they observe, and to try to be as impartial as they can3

What people in Europe and the UK see with your Supreme Court now is something closer to this:

• A 6–3 conservative majority that claims to be bound by “text” and “original meaning” while selectively discarding both4

• Justices accepting lavish gifts and refusing to recuse themselves from cases involving their benefactors

• A non‑binding “ethics code” written in the gentlest possible language and with absolutely no enforcement teeth

• And a Court that has arrogated to itself the power to reshape vast areas of policy that until pretty damn recently belonged to elected legislatures

From here, that doesn’t look like a respectable conservative court whose viewpoints and policies we simply disagree with.

It looks like a structurally unsafe institution in terms of the future of democracy in the US.

When “textualism” becomes cosplay

I understand the pitch: your conservative justices are supposed to be textualists and originalists. They say they read, interpret and act on laws and the Constitution “as written”, anchored in public meaning and historical understanding.

That’s how they distinguish themselves from the dreaded “activist judges”5.

But when you look at what the Court has actually done in recent years, the pattern is not one of consistent textual modesty. It’s one of selective method, deployed in ways that miraculously align with a particular ideological project.6

In some cases, the majority waves away the plain language of a statute in favour of what it imagines Congress “really meant”.

In others, it suddenly discovers a “major questions doctrine” that appears nowhere in the text, but conveniently allows the Court to strike down ambitious regulations it dislikes.

In a number of high‑stakes Trump‑related cases, justices who swear by “text and history” become oddly flexible, carving out broad protections for presidential power that the Constitution never clearly grants.

This isn’t a complaint about conservatism as such. It’s a complaint about coherence.

If textualism is consistently set aside whenever it would lead to outcomes the majority dislikes, then “we are bound by the text” stops being a legal philosophy and starts looking an awful lot like a snake-oil marketing strategy.

From the outside, and particularly to someone who is interested in the law and how it works in practice7, it appears that the method is now subordinate to the result, not the other way round.

That is dangerous in any apex court, but doubly so in one that effectively answers to no one.

Ethics by suggestion, not obligation

I come from a political culture that, whatever its faults (and there are many), has internalised the Nolan Principles over the last 30 years8: selflessness, integrity, objectivity, accountability, openness, honesty, leadership.

We argue about them, we violate them, but we at least pretend they are the standard for public life. And both politicians and the legal profession (and indeed anyone in a public position of power) tend to be publicly pilloried if they are caught breaching them.

By our yardstick, your Supreme Court’s ethics regime is astonishingly weak.

Justices have accepted years of luxury travel, private jet flights and real‑estate deals from wealthy benefactors with clear ideological agendas, and then “forgotten” to disclose them.

They have ruled in cases involving those same benefactors and allied organisations without even a flicker of an eyelid - let alone a shiver of conscience.

When the public finally learns about these arrangements, the response is not contrition but explanation: the rules were unclear, everyone does it, nothing to see here.

Move along…

Under pressure in 2023, the Court adopted its first “code of conduct”. Great, you think - and possibly about bloody time as well.

But there’s a reason I used inverted commas around “code of conduct”: on inspection, it turns out to be voluntary, toothless and very much drafted in the conditional: justices “should” do this, they “should” avoid that.

There is no independent enforcement, no clear sanctions and - crucially - the decision whether to recuse from a case due to conflict of interest remains entirely at each justice’s personal discretion.

From where I’m sitting, this isn’t an ethics system and it’s certainly not a “code of conduct”. It’s more of a polite suggestion box.

So here’s the thing: if you wouldn’t accept this lack of accountability, regulation or enforcement within your local council or from a junior civil servant, why on earth do you tolerate it at the very top of your constitutional architecture?

The recusal farce, and why it matters

Recusal is one of those boring words that hides a simple principle:

If your impartiality can reasonably be questioned, you don’t sit on the case.

In most rule‑of‑law systems, close family involvement in a controversial event or case is an obvious red line.

An example? How about if my spouse were actively organising a political movement, sending messages to senior officials about overturning an election, and turning up at rallies that later spilled into violence…

Over here, the idea that I could then hear cases about that or related events would be laughable.

Yet that is effectively what has happened on your Supreme Court in cases related to January 6th and the “stolen election” narrative. Calls for Clarence Thomas’s recusal were brushed aside. There was (and still is) no mechanism to force the issue, no higher body to review the decision. The justice in question simply decided he was impartial enough - and that was that.

When a court insists it can police its own conflicts, and then demonstrably fails to do so in the most glaring cases, what you have is not judicial independence. It is judicial impunity.

And when that court also controls the interpretation of your Constitution, it becomes very hard for outsiders to treat its pronouncements as neutral exposition rather than as the work of a politicised, self‑insulating elite.

Who gets to sit on this Court?”

There is also the more basic question of who gets to sit on this Court, and how they get there.

Several of the justices who ultimately voted to overturn Roe v. Wade reached the bench by describing it, in their confirmation hearings, as “precedent,” “settled law,” or a decision “entitled to respect” under the Court’s own doctrine of stare decisis.

They did not promise never to revisit it, but they chose language that quite deliberately reassured key senators and the public that Roe was safe.

Within a few years, with those same justices in place, the Court did what many of those listeners had understood them to rule out: it dismantled Roe entirely.

Whether that amounts to perjury in a narrow criminal sense is almost beside the point.

The effect was that senators cast decisive votes on the basis of assurances that turned out to be, at best, artfully misleading.

In a system where confirmation is effectively the only serious moment of democratic scrutiny a justice will ever face, that kind of manoeuvre is not just sharp practice; it corrodes the basic trust on which judicial legitimacy rests.

Layered on top of that are the unresolved questions about personal conduct. One sitting justice was confirmed despite Anita Hill’s detailed testimony that he had sexually harassed her when she worked for him; another was confirmed over sworn allegations from Christine Blasey Ford that he had sexually assaulted her as a teenager, along with other claims of misconduct. Both men denied the accusations.

The Senate9, on razor‑thin margins, decided to believe them - or, perhaps more accurately, decided that getting the seats filled by conservative judges mattered more than answering those doubts.

In a healthier system, serious concerns about honesty in confirmation testimony, or about alleged harassment and assault, would not simply vanish once the oath of office is administered. There would be independent ethics bodies, enforceable codes, clear routes for investigation, and realistic consequences short of the political nuclear option of impeachment.

In your system, there is essentially nothing.

Once a justice is on the Court, the combination of life tenure, partisan impeachment politics and a toothless ethics regime means those questions and that standard of behaviour are simply entombed in the institution for decades.

If you want to understand why so many people on both sides of the pond- especially women and survivors of abuse - no longer see this Court as a neutral arbiter, start there.

It is not just the rulings.

It is the sense that people with unresolved, serious questions about their candour and their character have been handed the final word over everyone else’s rights, for life.

Lifetime power without serious checks

Strip away the rhetoric and look at the bare structure:

• Justices are appointed for life

• There are no term limits

• They cannot be removed except by impeachment, which your politics has rendered practically impossible

• They choose whether to recuse from their own conflicts

• They now operate under an “ethics code” that is advisory rather than binding

• Their word on constitutional questions is final; there is no higher judicial appeal

You can tell yourself that elections still ultimately shape the Court through appointments, but anyone watching the last decade knows that is only loosely true.

A mix of partisan hardball in the Senate, actuarial luck, and ideological vetting by networks who operate outside democratic accountability, has produced a majority on your Supreme Court who hold views and opinions that do not remotely reflect the ideological balance of the rest of the country.

From the outside, this looks less like a court in the traditional sense and more like a constitutional council of life peers, chosen in moments of partisan opportunity and then largely unaccountable thereafter.

I’m not sure Americans have fully absorbed how odd this looks to other democracies.

Even our House of Lords - prior to 2009, when they were the equivalent of the Supreme Court - had more accountability for their decisions.

In the UK, Supreme Court justices must retire by a fixed age. In many European countries, constitutional judges serve a single non‑renewable term. Ethics codes have enforcement mechanisms and consequences.

No system is perfect, but most of them at least pretend to believe that concentrated, unreviewable power must be time‑limited and constantly scrutinised.

You, by contrast, seem to have built a system that assumes the opposite: that nine human beings, once installed, can be trusted indefinitely with the final word on almost everything.

We’re watching the results of that system and blind faith in the impartiality of justice play out across not only America, but the rest of the world.

Why your Court’s crisis isn’t just your problem

You might reasonably ask: why does someone in the northern UK city of Newcastle upon Tyne care this much about your Supreme Court?

Because what happens there doesn’t stay there.

American constitutional law, for better or worse, has been a reference point for democrats and would‑be democrats everywhere.

Your Court’s great rights cases were cited as models. Your judiciary was held up, in our textbooks and think‑tank reports, as an example of how courts can stand up to elected power.

When that Court appears captured - ethically compromised, selectively methodological, structurally insulated from correction - it doesn’t just undermine trust at home. It erodes confidence in the very idea that apex courts can be guardians of democracy rather than participants in its managed decline.10

It also spills into your foreign policy.

A country whose highest court seems to tilt the playing field at home finds it harder to lecture others about fair elections or judicial independence abroad. The more your Court looks like an instrument of minority rule, the more your adversaries - and increasingly your former staunch allies - will simply and quietly stop listening when you talk about democratic values.

From here, that loss is visible already.

One last clarification.

I’m not telling you that your Supreme Court should produce the outcomes I would personally prefer.

I’m telling you that the way it is operating - the ethical laxity, the lifetime tenure without meaningful external checks, the selective use of doctrine - would be worrying even if the ideological balance were reversed.

If the Court were systematically delivering maximalist left‑wing rulings, under the same rules and with the same blind eye to ethics and recusal, I’d like to think that I’d be just as concerned.11

Nobody should hold that kind of power, for that long, with that little scrutiny.

You’re heading towards a Supreme Court that many of your own citizens no longer regard as legitimate. If that happens, you won’t just get anger on the left; you’ll get a deeper cynicism across America about the very idea that constitutions and courts can constrain power at all.

Speaking as someone who still cares about the American experiment with democracy, that would be a loss far beyond your borders.

With concern and, even now, a sliver of hope

My next two letters will look at your voting system and at what “refuge” means in a country where the law itself has become hostile.

For now, if you do nothing else, at least give yourself permission to acknowledge what you’re seeing:

Your Supreme Court is not OK. And it’s not unreasonable to plan your life accordingly.

If you’re reading this from inside the United States and feeling trapped, it’s worth saying plainly: there are other options.

Countries like the UK, Ireland, much of the EU, Canada, Australia and New Zealand still operate under systems where elections are broadly free and fair, where courts are constrained by real ethics rules and term limits, and where reproductive and LGBTQ+ rights - while imperfect - are not being systematically rolled back.

Leaving is a big step. It’s not possible or desirable for everyone. But if you find yourself thinking, “I can’t live under this forever”, know that:

• there are immigration paths (work, study, family reunion) into functioning democracies

• there are communities, and programs such as Sanctuary Europa, already helping people navigate those moves,

• and you are not obligated to stay in a system that no longer treats you as an equal citizen.