IT is good for hermits to get out a bit. Justice Michael McHuge (as our sainted proprietor admiringly terms him) recently voyaged to Florence to explain to Australian barristers, in 7,000 gently soporific words, why appellate judges are so peachy at making law and using judicial review to show politicians who is boss.

US Chief Justice John Marshall (1801-35), encouraged by business lawyer Alexander Hamilton (below),


arrogated to judges the power of judicial review in a court-rigging case, Marbury v Madison (1803).

The Hon. McHuge is rather keen on that sublime pair; he said Hamilton was the “builder” of the US and Marshall its “definer”.

Marshall, a onetime major land speculator, certainly defined US business of the Enron/Halliburton stripe: in Fletcher v Peck (1810), he set a much-followed precedent favouring corporate organised criminals.

In the brief time available, McHuge J was naturally hostage to minor omission. He did not, for instance, explain why appellate judges of such intellectual refulgence seem to be running a lottery: Lord Reid, lord of appeal in ordinary 1948-75, said at least 90 percent of House of Lords cases could go either way. 

Nor did he advert to the Humpty Manoeuvre, a rare beast first reported by the Rev. Charles Lutwidge Dodgson in Through the Looking Glass, and What Alice Found There (1871):


” ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less’.

‘The question is,’ said Alice, ‘whether you can make words mean so many different things’.

‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all’.”

The species is not quite extinct. With Sir William Webb the lone dissenter, Owen Dixon, Eddie McTiernan, Dudley Williams, Frank Kitto, and Alan Taylor effectively asserted in Keighery (1957) that “absolutely” in the 1936 Tax Act did not mean “absolutely”; there could be an exception.

The result: billions are annually redistributed from the poor and middling to the deserving rich.

And five Humpties on the US Supreme Court — William Hubbs Rehnquist, Antonin Scalia (Dick Cheney’s duck-shooting chum), Clarrie Thomas, Sandra Day O‚Connor, and Anthony Kennedy — effectively claimed in Bush v Gore (Monday, December 13, 2000) that democracy means you don’t count all the votes.

A dissenter, Justice John Paul Stevens observed: “Although we may never know the winner, the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”

More recent losers are the 15,000 thus far deprived of their lives in Iraq, and their families and friends.

It seems clear that Marshall, whatever his motives, was right to claim the power to decide if legislation is unlawful. It seems equally clear that, wonderful as they are, appellate judges would be even better if they were trained.

Training judges separately from lawyers would avoid contamination with those curious notions of ethics and morals which the adversary system imposes on unsuspecting young attorneys.

Evan Whitton is author of Serial Liars: How Lawyers Get the Money

Originally published in Justinian July 27, 2004

McHuge shouldn’t get too carried away about Alexander Hamilton, warns Evan Whitton