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Alex Schwartz
Court curbing has attracted heightened attention in recent years, largely because of its association with “populist” attacks on the constitutional rule of law. The United Kingdom has had its own recent bout of court curbing. During the period of Conservative government from 2015 to 2024, there was a movement to systemically curb the courts’ common law powers of judicial review. Ultimately, however, only a few narrowly targeted reforms were enacted. This Article advances an explanation for why the outcome of this recent bout of court curbing was so mild, identifying two features of the British context which may have explanatory power in other established liberal democracies. The first is legislative supremacy (or “parliamentary sovereignty”) and the corresponding absence of a judicial power to invalidate primary legislation passed by the national legislature. Because legislative supremacy facilitates the use of ordinary legislation to reverse or limit unwelcome judicial decisions in the public law domain, it tends to temper the intensity of court curbing by offering more palatable, narrowly targeted alternatives to broadly targeted attacks on judicial power. The second is the difficulty of mobilizing populist antipathy against the judiciary from within the ranks of an otherwise “establishment” political party. In the case of the United Kingdom, this Article argues that an enduring reverence for the British judiciary within the Conservative Party inhibits the kind of populist rhetoric that might otherwise be used to promote a broader court-curbing agenda. The Article illustrates how these two factors had a moderating influence on the recent movement to curb the courts in the United Kingdom.
