In an earlier post we drew attention to a recent article in The Guardian by Marcel Berlins entitled ‘Our new Supreme Court is a Judge short but far from underpowered’ in which he discusses the forthcoming appointment of the 12th and final Justice of the Supreme Court.  He refers to “unanimity” among rumour spreaders that this will be Jonathan Sumption QC, pictured right.  We have no idea as to the truth of this rumour and we remind readers that there is a selection process to be carried out.

Our posting points out (by reference to an essay by Tom Bingham in The Judicial House of Lords, 1876-2009 (OUP, 2009) edited by Louis Blom-Cooper, Brice Dickson and Gavin Drewry) that although rare, such an appointment would not be unique in this country, there having been 11 Law Lords who had not previously been full time judges.

Marcel Berlins’ article has been widely picked up.  On the South African legal internet news site, Legal Brief, his comments about Jonathan Sumption became the main story under the headline ‘Lawyer expect to become UK’s 12th Supreme Court Judge’.

This led us to thinking about the appointment of “non-Judges” to other Supreme Courts.  Let’s take South Africa for example.  The Constitutional Court’s website reveals that, of the 11 judges of that Court, 5 were appointed without any previous judicial experience.  The direct appointees include the present Chief Justice Pius Langa.   This court is perhaps unusual because it was newly created as “a break with the past” in 1994 when 4 of these 5 were first appointed. 

In the United States Supreme Court, no current Justices were appointed direct from legal practice.  Interestingly only one – newly appointed Justice Sonia Sotomayor – has experience as a judge of first instance.  The other 9 began their judicial careers as Federal Court of Appeal judges.  This level of judicial experience is, historically, unusual in the US.  After all, this is the Court which has had a former president – William Howard Taft – as Chief Justice and where, as recently as 1992 President Clinton had seriously considered appointing New York Governor and leading democrat politican Mario Cuomo to the Court  (Cuomo said no and Breyer was subsequently appointed to the vacancy).

The justices of the High Court of Australia are all former judges – a majority are former judges of the Federal Court of Australia.  Once again, the history is more mixed, with Sir Robert Latham, the Chief Justice between 1935 and 1952, having previously been the Leader of the Opposition and then the Deputy Prime Minister.  Short biographies of the former justices are available here.

What is clear is that the established post-war English model of members of the Bar being appointed to the High Court, the Court of Appeal and then the House of Lords is not the only one.  Whether or not Jonathan Sumption is appointed direct from the Bar, the idea of “non-judicial” appointees to the top court is one with a long and interesting history.


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