Populism, Executive Power and 'Constitutional Impatience': Courts as Institutional Stabilisers in the United Kingdom

Abstract

Populists are typically impatient with intermediaries, institutions (including legislatures and courts) and liberal-democratic procedures, which are seen as illegitimately thwarting the direct expression of the authentic “will of the people.” Taking advantage of the spatiotemporal contours of liberal democracy, populism puts forward an alternative conception of democratic representation: one that not only aims to reduce the distance between gouvernants and gouvernés, but that is also, as populists would indirectly claim, better suited to the contemporary imperatives of temporal efficiency and rapidity. Yet, it is precisely in this context – which I call “constitutional impatience” – that courts can provide a judicial response to populism. In this article, I argue that courts have shown that they can, in certain circumstances, act as institutional stabilisers by slowing down the populist tempo and counteracting the populist tendency to avoid or bypass institutional intermediaries such as Parliament and the courts. I do so by reference, mainly, to two high-profile United Kingdom Supreme Court cases, Miller (no. 1) and Miller (no. 2)/Cherry.

Keywords: Populism, constitutional impatience, courts, institutional stabilisation, judicial deceleration, executive aggrandisement, Miller, United Kingdom

JEL Classification: K00, K1, K10, K19, K3, K30, K39