Four top judges, three low profiles

    • The Guardian,
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I was in America when the news came out that David Souter, a judge of the US supreme court, had ­decided to retire, for the ­virtually unprecedented reason that he didn't fancy carrying on. He was neither ill, nor intellectually failing, nor old – 69 in a court which has no ­retirement age is young.

His leaving made the front pages of newspapers – not just serious ones – and was high on radio and television news bulletins. The popular satirist Jon ­Stewart made satirical fun of him on The Daily Show.

Speculation about Souter's ­successor was prominent and continues.

I could not help contrasting this with the almost totally absent ­coverage in the British media of three recent ­retirements from our highest court, the House of Lords (which is to become the UK supreme court in October) and the replacements. Indeed, far more was written in the British press about the ­American judicial scene than about our own.

Should this be seen as a sad ­failing of the British public and media to ­appreciate the importance of our top court and its judges? Or is it the reality that the senior judiciary plays a far less significant role in our lives, political and social, than its US equivalent, and deserves the scant attention it gets?

Souter's resignation received public prominence because it is up to the US president to nominate his successor; this will be Barack Obama's first ­opportunity to start moulding the court to his political satisfaction. Unfortunately for him, whoever he chooses won't make much difference to the ­ideological balance of the nine-person court. Souter was, in legal terms, a liberal; Obama will replace him with another liberal. The odds are that the next two justices to retire will also be liberals: Ruth Ginsburg because she's been ill with cancer, and John Paul ­Stevens because he's pushing 90. Obama may have to wait a long time before he can reverse the conservative leaning of the court.

The highest court in Britain does not rate the same level of public interest. We do not have political appointments or televised hearings of nominees. More crucially, our soon-to-be justices of the supreme court do not, and will not, have the power to overturn laws passed by parliament. To put it bluntly, our judges just aren't as influential as theirs. Still, that doesn't quite justify our almost total ignorance about them.

So you believe that those schools which closed so speedily when one of their pupils sneezed were merely taking sensible precautions to ­prevent a possible spread of swine flu? Not necessarily, especially in the US. The law played a crucial role in the decision, I was told authoritatively by those who take a personal interest in these things. American lawyers, I mean.

The fear in some schools was not so much that there would be a flu epidemic, but that there would be flu litigation. For if, however remote the possibility, the virus was indeed to spread among the pupils, causing serious illness, the school's authorities would undoubtedly be blamed for not closing the school sooner – and, of course, inevitably be sued for millions of ­dollars. ­Better to take premature preventive action that was not at all needed than run the risk of a lawsuit.

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