Appointing Supreme Court Justices

When a vacancy arises on the UK Supreme Court (UKSC), how is it filled? And what considerations are taken into account when deciding on which qualified candidate to appoint? The answer to the first question is easy enough to answer: the Lord Chancellor convenes an ad hoc selection commission, which must include the President of the UKSC, who acts as Chair, alongside: a senior (non-UKSC) UK judge, a member of the judicial appointments bodies for England and Wales, Scotland and Northern Ireland respectively. Senior legal and political figures are normally consulted. It is ultimately down to the Lord Chancellor as to whether to accept or reject the commission’s recommendation. As far as anyone is aware, the Lord Chancellor has accepted every recommendation when it comes to filling Supreme Court posts. 

So far, so straightforward. But answering the second question is more difficult. Section 27(5) of the Constitutional Reform Act 2005 is clear that “selection must be on merit”, and the Supreme Court’s website repeatedly stresses that this is indeed the key criterion (although the need for greater judicial diversity is a relevant factor). But what does “merit” mean in practice? And does the judicial ideology of the nominee play any role? This post questions whether adherence to a particular judicial ideology – the dominant judicial ideology of the appointing panel – is a relevant factor in the appointments process. 

In presenting evidence suggesting that this is indeed the case, I draw primarily on some curious statements by Lord Reed, the current President of the UKSC, in his answers to questions before the House of Lords Constitution Committee over the past few years. I suggest that, according to Reed’s own admissions, certain kinds of candidates, with particular (but contested) understandings of the constitution are more likely to be appointed than others. In particular, candidates who hold what might be described as “conservative” (small-c) judicial outlooks are more likely to be appointed than those who hold more progressive or creative judicial philosophies. 

Judicial ideology in the UK Supreme Court

To speak of “judicial ideology” in the UK context may immediately raise eyebrows. To be clear, I am not at all suggesting that judging on the UKSC can be meaningfully compared to judging on, say, the US Supreme Court. The reasoning adopted on the UKSC is nowhere near as nakedly ideological and partisan when compared to its SCOTUS counterpart. But I am proposing that judges, including Supreme Court judges, will hold a set of beliefs about contentious constitutional questions – about the relationship between organs of the state and the proper role of the judges: how much leeway should be given to the executive in judicial review cases? How far should judges develop the common law? Are there any circumstances, however rare, in which the validity or effect of an Act of Parliament might be questioned? Once it is accepted that judges will hold such beliefs, it is difficult to argue that said positions will not influence the way they decide cases, in one way or another. In short, it is argued that this bundle of judicial preferences on contested constitutional questions – call it judicial ideology – will necessarily be one factor (not necessarily the sole, nor even most significant factor) in judicial decision making. 

The obvious implication, then, is that it matters which judges, and which judicial philosophies, make it to the Supreme Court. Different judges, holding different judicial ideologies, may decide cases differently (or, in some instances, arrive at the same outcome through the application of very different reasoning). This is not some fringe realist view. In the 2025 Constitution Committee inquiry, Lord Waldegrave asked Lord Reed whether “it is inevitable… that who is appointed to the Court… matters”. Reed answered in the affirmative.

Judicial ideology in the current Supreme Court

Elsewhere (see e.g. here and here), I have argued that the Supreme Court, under the leadership of Lord Reed, has exhibited a notably more conservative, restrained judicial ideology than some of its earlier incarnations. I am not the only one to have noted this: see e.g. Gearty, Tomkins, Ekins and Lady Hale.

Indeed, Lord Reed’s comments in various Constitution Committee evidence sessions are revealing in this respect. Unlike some of his former colleagues, he advocates for a “thin” rather than “thick” conception of the rule of law, warning against the adoption of an overly “broad meaning” which encompasses compliance with human rights standards and international law rulings (2025 session, 2026 session). He also made it clear, in this respect, that in his view the rule of law cannot act as a restraint on the content of laws passed by the legislature. This, of course, reflects Reed’s own position in the Privacy International case. But, whilst framed as self-evidently correct, it is a position with which at least three of his former colleagues would disagree. Another interesting comment was made in the 2025 session: Reed suggested that when it comes to developing the common law, judges should move forward “incrementally” and only in “small steps”. However, he acknowledged that this view, too, is not necessarily shared by all Supreme Court judges: “there are occasionally judges who are more ambitious” (2025 session). 

Reed also acknowledged that, in addition to there being differences between individual judges when it comes to judicial ideology, there had been something of a shift away from the more “ambitious” judging he described above. He acknowledged that he was keen to ensure “that we [the UKSC judges] understood the limits of our role” under his leadership (2026 session). He admitted that “what has been… more evident in our [recent] judgments is greater respect for the separation of powers” (2022 session). In a discussion in the 2025 session, Lord Waldegrave asked Reed whether he agreed that there had been a reduction of judicial activism on the Court in recent years. His answer was that “there have been changes in judicial personnel over the years” which contributed to this change. Whilst he qualified his answer – “I do not think the prevailing view has changed very much” – he acknowledged that “there were judges on the Court in the past who took a more expansive view of the Court’s constitutional function than is certainly the prevailing view at the moment”. It seems, then, that even Lord Reed himself accepts that the current Supreme Court is more conservative and restrained than it once was. 

Judicial Ideology in the Appointments Process?

It is one thing to suggest, as many have done, that Lord Reed’s Supreme Court takes a more careful and conservative view of the judicial role than other incarnations might have done. But it is another thing entirely to suggest that Lord Reed, and others, would require new appointees to the Court to sign up to the same position.Some of Reed’s comments to the Constitution Committee might however suggest that this is indeed the case. 

In the 2026 session, Reed was asked by Lord Waldegrave about a so-called “activist” approach to judging. By this, he meant a particular approach to the role of international law, “the interpretation of law”, and towards “the Human Rights Act”. It was suggested that Reed “seem[ed] to have steered the Supreme Court away from” undesirable positions on each of these issues. But what, he asked, “if you appoint Justices to the Supreme Court who take a more activist approach”?

Reed’s response was that it was unlikely that such judges would be appointed in the first place. Lord Chancellors, he said, are “very aware” of the problem Waldegrave raised. And, indeed, Lord Chancellors want to appoint candidates with “a good understanding of constitutional relationships” (incidentally, this language almost exactly echoes something Reed said to the Committee in 2025: Lord Chancellors “are keen to see Justices appointed who have a good understanding of the constitutional relationships between the Court and Parliament and the Government”).

But what is meant by a “good understanding” in this context? The answer, of course, depends on judicial ideology. Lord Reed’s understanding of the appropriate constitutional balance to be struck in issues relating to international law, statutory interpretation and human rights law will no doubt differ from that of other judges. But, given his position on the appointment panel, Reed’s own understanding necessarily influences what a “good understanding” means in practice. 

Further, Reed mentioned in 2026 that previous candidates for Supreme Court vacancies were asked, in their interview, whether “an overenthusiastic interpretation of the Human Rights Act” had led to a “damaged… relationship” between courts and the legislature. This is a loaded question. What is an “overenthusiastic interpretation” of the Act? Overenthusiastic by whose measure? Does it mean any approach which differs from Reed’s own (notably conservative) interpretation? Reed suggested that the obvious answer to his question was “yes”, and that anyone disagreeing would make Reed wonder “what planet… this person [had] been living on”. In response Lord Waldegrave confirmed: “for somebody living on that planet, they would be rather unlikely to get on to the supreme court?”. Reed’s answer was stark: “so long as I’m chairing the selection commission.”

Another illuminating exchange occurred in the 2022 session. Lord Howard asked Lord Reed directly: “when you and your colleagues on the appointments commissions consider candidates for the senior judiciary, do you take into account whether their judicial history shows a tendency towards activism or a tendency towards restraint?” Remarkably, Reed answered candidly: “I would take that into account… we are expecting them not only to have talked the talk but to have walked the walk”. He added: “Obviously [we] are well aware of people’s track record, and I certainly take that into account.”

This admission shocked Lord Falconer, who responded: “Looking at the judicial record of the judge and deciding he or she is too activist to be appointed to the Supreme Court—surely not?” Lord Reed’s response in turn was cautious: candidates are appointed on merit, which concerns “judicial ability”. But judicial ability, in turn, means “having a sound understanding of constitutional relationships”. Whilst clarifying that he did not mean that he paid attention to whether a candidate is “more or less likely to have overturned the Home Secretary in a deportation case”, “a proper understanding of constitutional roles” is essential. 

The implication is that there are some judges, otherwise suitable for Supreme Court posts, who do not have a “proper” understanding of the judicial role. Reed confirmed: “we are looking for individuals who… understand what a judge’s role is and understand that it is not the same as a politician’s role.” Naturally, this lines up with the tenor of Reed’s SC judgment: judges should do law, not politics. However, there is a problem here. As I have argued elsewhere, a whole range of aspects judicial reasoning – from taking into account policy considerations to adventurous common law development to being sceptical of judicial deference in human rights cases – have been castigated as being “political” and therefore off-limits to judges. There is a real danger here in being too prescriptive about what is off-limits and what is not: the proper delineation between the proper realm of the political and the proper realm of the legal is not at all obvious; it is heavily contested. It goes to the heart of different legal theories. It goes to the heart of different judicial ideologies. And yet, Reed’s comments strongly suggest that when it comes to Supreme Court appointments, only candidates with certain preferred ideologies will have a serious chance.   

The implications here are remarkable. Lord Reed, chair of the Supreme Court’s appointment commissions, seems to be suggesting that potential candidates must profess his judicial ideology if they wish to be appointed to the Court. This ensures that the prevailing ideology on the Supreme Court is not just promoted through its present judgments, but is perpetuated in judgments to come, through like-minded judicial appointees.

Implications and conclusions

This might make us feel uncomfortable. We – rightly – recoil at the idea of explicitly partisan appointments to judicial posts, where politicians with clear ideological agendas appoint their preferred candidates in order to bring about political outcomes. But does the current candidate selection process for Supreme Court judges raise similar objections? It would appear that our Supreme Court judges are selected, at least in some small part, on  grounds of judicial ideology, based on the preferences of the appointing body. Is this any better? 

A big question – too big to answer here – is that if we are dissatisfied with the current situation, what, if anything, should be done about it? There is something deeply unattractive about judicial elections, or the involvement of politicians in the appointment process. Less drastic changes are of course possible. Sitting judges could be removed from the appointment process altogether. As Gee and Rackley have argued on this blog, “The only reason for the current arrangement is to give senior judges greater say—and perhaps the decisive say—in the selection of their colleagues”. But there are, naturally, benefits to senior judges remaining involved in the appointment of the peers they will serve with for years to come. . 

This a problem that is difficult, if not impossible, to solve. Someone has to appoint our Supreme Court judges. Even expelling judges from the process altogether does not mean that ideology will not play some role in the appointments. Whoever is given this responsibility – politicians, judges, independent commissioners, lay members, or whoever else – will necessarily hold views as to how contested constitutional questions ought to be resolved. It is inevitable that this will affect how the evaluating body  evaluates the strength of candidates and, ultimately, who is appointed. In a sense, then, any and all judicial appointments will necessarily be ideological to some extent.aCould it be that the current system should continue for the admittedly unsatisfying reason that feasible alternatives would necessarily be even more objectionable? Might peeking behind the curial veil in this respect ultimately do us more harm than good? 

Many thanks to the UKCLA editors for their comments on an earlier draft.

Dr Lewis Graham is a Lecturer in Human Rights Law at the University of Manchester.

(Suggested citation: L.Graham, ‘Judicial Ideology and Supreme Court Appointments’, U.K. Const. L. Blog (6th May 2026) (available at https://ukconstitutionallaw.org/))