‘one for All and All for One’? Judicial Ideology and Judicial Professionalism in the House of Lords and Supreme Court
Abstract: Most work on the British judiciary reflects the assumption that the British judiciary is professional and not political, and that attitudinal factors are irrelevant to the UK’s highest court: judges behave as the so-called ‘legal model’ predicts, with dissents being rare. In this paper, we challenge this assumption. We argue that the ‘legal model’ is intelligible within the ‘strategic model’. Judges’ differing approaches to legal doctrine represent ‘institutional strategies’–ways of embedding attitudes within the informal institutions of the judiciary so as to shape interactions with other actors. Adherence to a ‘legal model’ does not, therefore, affect the validity of the insights of the strategic model on the role of judges’ personal views. We elaborate upon this through an empirical analysis of decisions on challenges to state bodies, estimating judges’ ideological positions on a ‘legal’ scale. We find that there are meaningful and measurable differences in judicial positions on this scale which affect the outcomes of a significant minority of cases. Drawing on Mary Douglas’s grid-group theory, we posit an institutional explanation for the rarity of dissents, namely that consensus in the UK’s highest appellate court is a product of group-bounded as much as norm-bounded behaviour, which has the tendency to amplify rather than dampen the effect of bench-composition on the outcome of cases. Our findings point to the need for proper consideration of the institutional impact of reforms to the judiciary and for a proper institutional theory of the judiciary.
