‘Are we to pretend that the past did not exist?’ asks Jonathan Sumption with an undisguised air of frustration, during the essay titled ‘On Apologising for History’ – the second in a new wide-ranging compendium, Law in a Time of Crisis.

His distaste is directed at elements of the global Black Lives Matter movement –  specifically, in this instance, at the protestors in Bristol toppling the statue of Edward Colston, whom he somewhat hyperbolically suggests were seeking to ‘efface every public reminder that people once thought differently.’

Despite a valiant attempt by the publisher to tie the book together under the umbrella of ‘crisis’, this collection of essays—adapted from Sumption’s public lectures over the last decade—drifts chaotically between topics, vacillating from a cogent puncturing of the myths of Magna Carta to a deconstruction of the use of referenda in representative democracy, via thoughts on Covid-19 and judicial diversity. His irascibility on statue-toppling illuminates the closest thing it has to a theme: Sumption’s attempt to bring the weight of history down on the follies of the present.

The past matters more to Sumption than most. A pre-eminent QC turned Justice of the Supreme Court, he utilised his wealth (via a private library of 7,000 books and three months’ holiday a year) to moonlight as a medieval historian, continuing the practice from his days as a fellow at Magdalen College. His greatest fear is that he won’t live to finish the five-volume history of the Hundred Years War, which he began writing in the 1980s, and for which he won the Wolfson History Prize in 2009.

As well as being a Lord, he has an OBE. He is a fellow of the Royal Historical Society and the Society of Antiquaries. He is a member of the Privy Council. Brilliant, powerful, cerebral, benevolent; Sumption is the living embodiment of the British establishment’s self-image. He even converted to Anglicanism aged 15, having been brought up Catholic.

Sumption sees his parallel careers as symbiotic. The book’s opening essay, ‘The Historian as Judge’, poetically describes our common law system of precedent as ‘based on judicial decisions about […] a large number of tiny human stories. […] they are legal cautionary tales, but they are also accidental fragments of English history.’ Judges are tasked with excavating history to guide us in the present. ‘The baggage of the past,’ he reminds us in a characteristic rumination, ‘is always with us.’

What cautionary tales might we find amidst the fragments of Sumption’s own past? In November 1974, the Conservative Home Affairs spokesman Keith Joseph gave a speech in Edgbaston that would all but end his aspiration for the party leadership. The political vision espoused—a combination of monetarist, proto-neoliberal economics and aggressively paternalistic social policy—would however provide the intellectual foundations for the ideology that would come to be recognised by Stuart Hall later that decade as ‘Thatcherism’.

Joseph nurtured Thatcher, who described him as her ‘closest political friend’ in the years ahead. Many decades later, the historians Dominic Sandbrook and Vernon Bogdanor would claim that the incendiary lines of the speech were written not by Joseph, but by his then-advisor, Jonathan Sumption.

The Edgbaston speech retains its ideological ferocity: ‘Our human stock is threatened. […] A high and rising proportion of children are being born to mothers least fitted to bring children into the world. […] Some are of low intelligence, most of low educational attainment. […] They are producing problem children, the future unmarried mothers, delinquents, denizens of our borstals, sub-normal educational establishments, prisons, hostels for drifters. […] If we do nothing, the nation moves towards degeneration.’

Sumption is unforthcoming about this stage of his career; in interviews, his personal biography notably skips from Oxford don to legal prodigy. A lengthy Guardian profile in 2015 (‘Jonathan Sumption: the brain of Britain’) makes no mention of his period advising Joseph, or of his time at the Centre for Policy Studies, the think tank founded by Joseph and Thatcher in 1974, which would provide the ideational basis for Thatcherism’s dominance of the Conservative Party and British society in the coming decades.

In an interview on Nick Robinson’s podcast last year, Sumption was challenged on his relationship with Joseph. He denied writing the speech, but defended it against charges of eugenics, on the grounds that the words were borne of empathy for the plight of the disadvantaged, albeit ‘not very sensibly expressed.’

Sumption was keen to emphasise to Robinson that he was in fact a Labour Party supporter during his time at the Centre for Policy Studies, and was attracted to Joseph for his ideological flexibility, as evidenced by his willingness to hire someone who was ‘not a Conservative’. It is a claim that would stretch credibility even absent the fact that Sumption and Joseph authored a book together. Five years after the Edgbaston speech, the pair drafted a text that offered a pure insight, as Sumption’s peer Patrick O’Connor QC put it, into the ‘neoliberal view of human nature, and social value’.

The thesis of Equality—the title representing the subject of the critique—is that freedom is irreconcilable with the pursuit of a more equal society, but the persistence of ‘envy’ blinds the masses to that reality. It might be ‘comforting to think that one is poor because one belongs to the class whose lot is to be poor,’ remark the authors, but in reality, ‘class distinctions have faded to the point where they are no more significant than the shape of a man’s hat.’ Those at the bottom have only themselves to blame.

Amidst this triumphantly Thatcherite vision of classless society, the tropes of Edgbaston make a conspicuous return: ‘A family is poor if it cannot afford to eat. It is not poor if it cannot afford endless smokes.’ By contrast: ‘An unusually skilled businessman […] will require a far greater income in order to achieve personal fulfilment than will another who has not been so well favoured by nature and who will be more easily fulfilled.’

Sumption would get his fulfilment in the decades that followed, earning self-described ‘telephone number fees’ representing everyone from major banks protecting themselves from competition law to Alastair Campbell during the Hutton Inquiry. He would be appointed to the Supreme Court uniquely without having served as a full-time judge, and amidst accusations of cosy backroom deals. No political conversion has been professed since his time with Joseph; ‘I was a libertarian then and I am now,’ he told Robinson. ‘Libertarian,’ he explains during the final essay of this latest book, ‘only means a believer in freedom.’

Sumption’s libertarianism has found its moment; he has risen to unusual prominence for an ex-judge by virtue of his outspoken opposition to the government’s Covid-19 restrictions. He is scathing about both lockdowns and the policing required to implement them, which he describes here as ‘the authentic ingredients of a totalitarian society,’ endangering ‘two centuries’ of ‘responsible government based […] on restraint.’

This is a remarkable level of historical amnesia for someone enamoured with the long view, and it might similarly be thought surprising to a hear a lifelong libertarian describe the pandemic as the moment that the British state ‘discovered the power of using fear to get its way,’ which, he adds ominously, ‘it will not forget.’

Reading Sumption, one could be tempted to believe that the authoritarian turn in British society began with Derbyshire Constabulary’s apprehension of a group of ramblers in March 2020. Such credulous claims should be understood within the Thatcherite libertarian tradition to which he and Joseph contributed Equality; liberty for some, founded on repression of others.

There is substantial intellectual motivation for Sumption’s defensiveness regarding his past. The central thesis of his public argument over the last decade, put most famously in his 2019 Reith Lectures, is that judges—bombarded by the growth of human rights law and other avenues for holding the state to account, such as judicial review—are gradually being forced to encroach into politics, and that this development is highly concerning.

In his positing of what Stephen Sedley calls an ‘idealised dualism’ between the political and the legal, Sumption purports to defend the once-depoliticised space of judicial adjudication from human rights groups, activists, and the ideological battles at the other end of Parliament Square. ‘We’re the antithesis of politics, really,’ as David Hope, who was instrumental in appointing Sumption to the nation’s highest court, put it. ‘We deliberately tend to suppress our own value judgments.’

Sumption’s dichotomy is perhaps best viewed as part of what the constitutional theorist Walter Bagehot termed the ‘theatrical’ part of the English constitution; necessary myths required to ‘preserve the reverence of the population’, as transposed from the real, ‘efficient’ parts that run the show behind the curtain. Human Rights Act or not, it is fantasy to believe that judges could ever avoid political questions. It is even more illusory to argue, as Sumption does, that they can ‘take into account the values of society’ but not their own ideological perspectives, the baggage of which is coolly left behind upon the donning of robes.

The judiciary constantly faces cases imbued with political considerations to which the application of ‘the law’ is also a question of perspective. British judges, for instance, have historically tended to side with the state on issues of national security. The Begum case in February is only the latest incarnation of a lineage that reaches back through GCHQ’s defeat of the unions in 1984, and John Widgery’s notorious whitewash inquiry into Bloody Sunday.

In 1977, the radical legal scholar John Griffith caused a public scandal with his book The Politics of the Judiciary. Griffith started from Sumption’s premise that judges were not explicitly pursuing partisan agendas, but argued that their background and historical status within the British establishment leads them to an inherently conservative understanding of the public interest—‘primarily concerned to protect and conserve certain values and institutions’—and that this understanding was reflected in their jurisprudence. The senior judiciary, therefore, was structurally biased against progressive political change.

Griffith’s argument has particular relevance in an age of right-wing attacks on the judiciary as ‘enemies of the people’, where liberal defensiveness seeks to protect an imagined, staunchly non-ideological character of the courts. Sumption is right to oppose recent government attempts to threaten judges into doing its bidding, but opposition will need to go beyond bromides about ‘independence’ and ‘politicisation’.

The commonly expressed view of the legal establishment is that it is wrong to interrogate the judiciary’s politics, because that way lies the dreaded ‘Americanisation’. But the fierce partisanship of US judges is determined by procedure – their appointments by presidents and the requirement for approval in the Senate. Britain’s problem is the opposite: it acts on the presumption that opacity equals depoliticisation, and that independence is preserved through the avoidance of difficult questions.

Upon the release of The Politics of the Judiciary, the conservative intellectual Kenneth Minogue regretted that it had sought to ‘rip the mask off the sacred name of justice’ exposing only ‘the political passions pulsing underneath’. The question for progressives is how best to deal with the overlap between law and politics, rather than pretend it doesn’t exist – to shine some ideological light on the ‘efficient’ workings of the judiciary. Sumption’s writings are less helpful in that regard than is an understanding of his unique career at the heart of British public life.