In the quaint English town of Epping, a modest hotel became a battlefield, not of fists or fireworks, but of words woven into judgments. The Bell Hotel, repurposed to shelter asylum-seekers, sparked protests after assaults by residents, leading Epping Forest District Council to seek its closure under planning law. The High Court's interim injunction to shut it down was swiftly overturned by the Court of Appeal, not on ironclad legal grounds, but through duelling narratives: one of local anguish trampled by central fiat, the other of noble humanitarian duty besieged by unruly mobs. As Dr. David McGrogan astutely dissects in his searing essay (see below), this wasn't law's dispassionate application but judges as rhetoricians, crafting tales bounded by "liberal normativism," a rationalistic creed prizing "equal concern and respect" above tradition or popular will.
McGrogan's diagnosis is spot-on: British law schools, since the 1970s, have marinated generations in Ronald Dworkin's vision of constitutional principles as universal imperatives, supplanting the foggy pragmatism of the "ancient constitution." Judges, products of this intellectual hothouse, exercise discretion not as neutral umpires, but as authors whose plots invariably exalt equality over equity, migrants over locals, the global over the national. It's a bias so ingrained it's invisible to its bearers, like fish unaware of water. Yet, as any truth-seeker knows, this rot isn't a peculiarly British blight. It's a Western epidemic, festering from Sydney's benches to San Francisco's circuits.
In Australia, immigration rulings shield arrivals at the expense of borders; in the US, "lawfare" hounds conservatives, while progressive causes glide unchallenged. Let's peel back the wig to reveal the pattern: a judiciary not serving justice but scripting a liberal utopia.
McGrogan invokes Stanley Fish's insight that law is rhetoric masquerading as oracle, judges don't "apply" rules but select stories, veiling bias in legalese. The Bell Hotel saga exemplifies this. High Court Justice Eyre J, a former Tory councillor, leaned into local woes: assaults, arson, disrupted high streets, all pinned on unpermitted "material changes" in hotel use. His "balancing exercise" tilted toward democratic accountability, granting an interim shutdown to halt the "risk of injustice" to Epping's residents.
Enter the Court of Appeal, where Lord Justice Bean, a Labour stalwart, Fabian chair, and Matrix Chambers founder, flipped the script. Protests weren't legitimate grievances but "lawlessness," egged on by a closure that might "encourage further" chaos. Asylum-seekers, "vulnerable" souls fleeing destitution, deserved the "public interest" shield of Home Office policy, trumping parochial planning gripes. The panel chided Eyre for sidelining the Home Secretary's "pivotal constitutional role," framing national humanitarian duty as sacrosanct. Result? The hotel stays open till October's trial, optics be damned.
This isn't anomaly; it's archetype. Loughlin's shift to liberal normativism, where law channels politics toward Dworkinian equality, explains why. UK judges, schooled in the 1980s' liberal tide, view discretion through Rawlsian lenses: borders are barriers to universal respect, protests against them prima facie illegitimate. McGrogan warns conservatives, smug in the Magna Carta, have sleepwalked into this. Tony Blair's Human Rights Act merely fertilised soil already tilled by academia. The Bell's tale whispers a wider truth: When "appropriateness" reigns, the story always ends with open arms, and closed ears to the natives.
If Britain's malaise is constitutional cosplay, Australia's is a stark sovereignty surrender, with immigration benches as the front line. Here, liberal normativism manifests in rulings that hobble deportation, prioritising migrant "rights" over national security. The High Court, that bastion of Down Under jurisprudence, has long tilted toward humanitarianism, often frustrating Canberra's few sound policies.
Take the 2025 furore over the Home Affairs Legislation Amendment (2025 Measures No. 1) Bill, which axed procedural fairness for third-country removals, echoing Trump's playbook. Human Rights Commissioner Lorraine Finlay decried it as eroding "fairness," arguing Australia's obligations under the Refugee Convention demand due process for all, regardless of arrival method. This isn't neutral law; it's normativist activism, where "equal concern" extends reflexively to boat people, even amid boatloads of crime stats. Judicial reviews flood the Federal Circuit and Family Court: In July 2025 alone, a protection visa refusal was quashed for IAA bias, spotlighting how tribunals, steeped in liberal training, probe for "procedural unfairness" with zealot fervor.
The template? Cases like CNY17 v Minister for Immigration (2019, but echoed in 2025 dockets), where a 3-2 High Court split found apprehended bias in a visa denial, letting an Afghan claimant stay. Fast-forward to 2025: Amid record arrivals, courts block offshore deportations, citing "non-refoulement" as trumping executive will. Refugee Council slammed November 2024 laws reimposing curfews and bracelets as "brutal," but judges have historically gutted such measures, enforcing a de facto open-door ethos. Law Society Tasmania's May 2025 seminar underscored this: Judicial review isn't oversight; it's a veto on border control, bounded by the same Dworkin-lite equality that deems Australian citizens' safety secondary to global migrants' dignity.
Why? Aussie law faculties, like Britain's, ditched functionalist realism for normativist idealism post-1970s. Griffith's "what happens" constitution yielded to principled cosmopolitanism, producing judges who story tell sovereignty as sin. Protests at Nauru detention centres? "Human rights crises." Local backlash? "Xenophobic noise." The rot: A judiciary that, in nominating "appropriateness," always picks the migrant over the mate.
Stateside, the affliction escalates to outright warfare: "lawfare," where courts weaponise process against the populist right. Trump's 2025 return hasn't stemmed it; if anything, it's amplified, with judges, liberal normativism's foot soldiers, hurling nationwide injunctions like confetti. Just Security's tracker logs over 100 suits and 50 blocks against Trump-era actions by September, a bipartisan boon but Left-leaning blitz. Politico charts Republicans' tightrope: Defend Trump, decry DOJ "weaponisation," but concede "lawfare in all forms is bad."
Exhibit A: The Supreme Court's Trump v. CASA (2025), which curbed but didn't kill nationwide injunctions, leaving "loopholes" for partisan hacks. Lower courts, packed with Obama/Biden appointees, stress-test the system: Trump's March memo curbing "abuses" via Rule 11 sanctions? Challenged in blue states as "retaliatory." Washington Standard notes Trump-appointed judges now block Biden holdovers, but the asymmetry endures: Progressive causes (abortion, voting rights) get deference; conservative edicts (border walls, election integrity) draw scrutiny.
This flips historical scripts. Liberals once decried "judicial activism" in Warren-era rulings; now they've embraced engagement when it suits, constitutional originalism be damned. ACS podcasts rail against Trump's "lawfare against democracy," yet ignore the mirror: Federal courts as policy labs, enforcing "equal concern" via injunctions that halt deportations or greenlight DEI mandates. IBA warns of "unprecedented pressure" on judges from Trump's barbs, but the real strain is self-inflicted: A bench, normativist to the marrow, stories America as a propositional nation where "respect" means amnesty, not assimilation. National Review blasts Trump's DOJ pushback as "outrage," but in this funhouse, the house always wins, unless you're the orange man.
McGrogan's plea rings universal: Conservatives, cease the smug constitutional incantations. The West's judiciaries aren't neutral; they're normativist echo chambers, where discretion dances to equality's tune, birthing stories that favour the abstract over the actual. From Epping's high street to Eagle Pass's frontier, the pattern persists: Law as liberal liturgy, judges as its priests.
What to do? First, audit the academies, infuse law schools with Oakeshott's civil association, not Dworkin's diktats. Second, reform appointments: Merit over ideology, but with transparency to expose the rot. Third, codify limits on discretion, tether "appropriateness" to statutes, not vibes. Trump's memo nods this way; Australia's 2025 Bill gropes blindly. But without values-rooted overhaul, lawfare wins.
Fish called it an "amazing trick," law's delusion of objectivity, under the yoke of woke The West's delusion? That this trick serves all. It doesn't. It's a conservative catastrophe, a progressive panacea. Time to end the show. Pull the curtain, rewrite the script. Truth demands no less.
https://dailysceptic.org/2025/09/23/britains-judiciary-is-biased-to-its-core/