Legal Village

The Justice and the Baroness

Posted 28/01/2008 by Bar Talk

Two female judicial pioneers — one from the US and one from the UK — compared notes at Georgetown University Law Center last week and found they both had restroom stories to tell.

 “Everybody’s got a bathroom story,” said Lady Brenda Hale, the first female Law Lord in the British House of Lords. In 1999, when she was named to the Court of Appeal and the Privy Council — yes, the Privy Council — a court official sheepishly told her the ladies room had not yet been completed. Hale, formally known as the Right Honourable Baroness Hale of Richmond said she has also grown accustomed to being unthinkingly addressed by lawyers during arguments as "M'Lord," not "M'Lady".

Supreme Court Justice Ruth Bader Ginsburg recounted how it took concerted effort in 1994 by her and Justice Sandra Day O’Connor, the court’s first female member, to get the Court to open the public ladies restroom before 9am. She also said a ladies room had to be hastily built in the Court’s robing room when O’Connor joined the Court in 1981.

But the two also contrasted their judicial systems, with a special spotlight on the UK, which is separating its highest judges from the House of Lords and creating a more independent Supreme Court as of 2009. As part of its transition, the new court will finally have its own home — something the US Supreme Court acquired in 1935 — in Middlesex Guildhall on Parliament Square in London. Its justices also will have a mandatory retirement age of 75. The age limit, said Hale, was adopted because some previously life-tenured law lords had served “long beyond [when] it made sense”.

That innovation prompted Ginsburg to state that the US federal judiciary is “blessed by life tenure”. Ginsburg also noted that by the new British rule, she would be on her way out the door; she turns 75 on 13 March.

Another marked difference between the two courts is that the legal assistants employed by the British law lords have significantly less power than the US equivalent, the justices’ law clerks.

Hale said that on her court, the 12 Law Lords share four legal assistants, whose main job is to summarise incoming petitions. But unlike Supreme Court law clerks, they do not recommend whether to grant or deny review and she said they “never, ever, ever write our judgments... that would be considered very wrong”. US justices hire up to four clerks each and, to varying degrees, most write first drafts of opinions for their justices.

The two judges also discussed the use of foreign rulings and materials in their own decision-making, which Ginsburg said had been the subject of a “not terribly serious” controversy in the US. “There are brilliant jurists all over the world,” Ginsburg said, and if the US Supreme Court ignored their work, its decisions would become “increasingly irrelevant” worldwide.

For her court, Hale said use of foreign materials is essential, especially in light of the dominance of European Union law over domestic law. She discussed how her court has handled sensitive post-9/11 national security cases, culminating in the 2004 decision in which the Law Lords, sitting in a nine-judge panel, ruled that the indefinite detention of foreign nationals at Belmarsh prison was incompatible with domestic law and the European Convention on Human Rights.

Hale said her court was initially split 5-4 but ended up voting 8-1 in favor of the detainees.

By Tony Mauro. This article first appeared on the website of the Legal Times, a US sister title of Legal Week.