Judicial Power: How Constitutional Courts Affect Political Transformations 1108425666, 9781108425667

The power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution

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Judicial Power: How Constitutional Courts Affect Political Transformations
 1108425666, 9781108425667

Table of contents :
Judicial Power: How Constitutional Courts Affect Political Transformations
Contents
List of Contributors
Acknowledgments
Introduction
Constitutional Adjudication as a Resource for Democratic Governance
Legitimacy and Effectiveness through Modes of Decision-Making
Structure of the Book
Democratic Legitimacy of Judicial Power
Democratic Effectiveness of Judicial Power
Political Context Matters
Conclusion
Part I: Democratic Legitimacy of Judicial Power
1 Judicial Power and Democracy
Introduction
Building Blocks of Successful Constitutional Judicial Review
Conclusion
2 Judicial Politics versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle?
Introduction
Law as a “Language Game” and the Dialectic between Constitutionalization of Politics and Politicization of the Constitution
The Constitutionalization of Politics in Judicial Decisions
Legitimating the Constitutionalization of Politics within the Proper Scope of Judicial Politics
Conclusion
3 Judicialization of Politics or Politicization of the Courts in New Democracies?
Introduction
Role(s) of Constitutional Courts
Judicialization
Accountability
Conclusion
4 European Judicial Appointments Reform: A Neo-Institutionalist Approach
Introduction
Historical Developments
The Prehistory
The Panels
An Intergovernmentalist Explanation
A Neo-Institutionalist Explanation
Conclusion
5 The Law of Democracy and the European Court of Human Rights
Introduction
General Considerations Involving Constitutionalizing Democratic Politics
The ECtHR’s Attempt to Define Democratic Rights
Restrictions on Paid “Political Advertising”
Access to the Vote for Prisoners
Campaign Finance
Of Britain, Brighton, Brexit, and Judicial Exits
Conclusion
Part II: Democratic Effectiveness of Judicial Power
6 Constitutional Court and Politics: The Polish Crisis
Introduction
1985–2015: The 30 Years of History
October 2015–December 2016: The 15 Months of Crisis
2017: The “New Constitutional Court”
Conclusion
7 Democracy, Political Crisis, and Constitutional Jurisdiction: The Leading Role of the Brazilian Supreme Court
Introduction
The Constitutional Jurisdiction in Brazil: A Unique System
The 1988 Constitution and the Profile of the Brazilian Supreme Court after Re-Democratization
The Brazilian Model of Judicial Review
The Criminal Jurisdiction of the Supreme Court: Political Crisis and Corruption
Supreme Court’s Performance: Emblematic Rulings
Brazilian Supreme Court and Fundamental Rights
The Brazilian Supreme Court, Political Crisis, and Criminal Law
The Roles of Constitutional Courts in Brazil and in the World
The Counter-Majoritarian Role
The Representative Role
The Enlightened Role
Conclusion
8 Judicial Power and European Integration: The Case of Germany
Introduction
History: The Long Way to Judicial Review in Germany
Who Is the Guardian of the Constitution?
Law Trumps Politics
The Relationship between European Integration and the German Constitutional Order
The German Constitution (1949)
The Return of Sovereignty: A New Direction after Reunification?
The Case Law of the German Constitutional Court on European Union Matters
The Pre-Reunification Case Law
After Reunification: Discovering Sovereignty and Parliament
The German Constitutional Court as a Political Player before the Euro Crisis?
The Euro Crisis
The German Constitutional Court and the Euro Crisis
The Outright Monetary Transactions Case
Subsequent Developments
Beyond the Euro Crisis: What Next?
9 Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust
Introduction
Jurisdictional Overlap
The Impact of Opinion 2/13
Jurisprudential Cross-Fertilization
Beyond Comity? The Normative Case for Judicial Dialogue
Part III: Legitimacy, Effectiveness, and Judicial Methods of Decision-Making
10 Transnational Judicial Interactions and the Diplomatization of Judicial Decision-Making
Introduction
Problems of Judicial Cooperation in a Transnational Context
Delicacy of Relationship between National and Transnational Courts
Gaps in Knowledge and Sensitivity
Diversity of Legal Cultures
Types of Cooperation
Extra-Case-Law Cooperation
Intra-Case-Law Cooperation
Decision-Making and Drafting Opinions with a View to Reception by Partner Courts
Hints by Obiter Dictum
Special Instruments of In-Case Cooperation
Diplomatization of Judicial Decision-Making
Ping-Pong Games
Conflict and Approximation: Preventive Detention
Conflict and Approximation: The European Central Bank’s Government Bond Purchase Programs
Hazards of Diplomatization
11 Judging Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes
Introduction
Diffusing Distinctions of Territorial Boundaries: Trans-Local Organizations of Government Actors
Jurisdictional Essentialism and Federalism Discounts to Accommodate Differences
Conclusion
12 On the Representativeness of Constitutional Courts: How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining Their Independence
Introduction
Volitional Representativeness: Judges between Judicial Self-Selection and Democratic Election
Identitarian Representativeness
Argumentative Representativeness
Interpretative Methodology
Styles of Opinion Writing
A Unitary Court or a Plurality of Opinions
Vicarious Representativeness
Conclusion
13 After the Heroes Have Left the Scene: Temporality in the Study of Constitutional Court Judges
Introduction
Why Do Heroic Judges Come on the Scene?
The Successor Courts
Non-Heroic Courts: Sustained Performance at Low and High Levels
Conclusion: The Importance of Temporality
Part IV: Judicial Power in Processes of Transformation
14 What Exactly Is Political about Constitutional Adjudication?
15 Populism, Constitutional Courts, and Civil Society
Introduction
The Disempowerment of Constitutional Courts
The Political Identity Called Populism
The Harm to Constitutional Democracy in Attacks on Courts
The Cooperation between Courts and Civil Society in Fighting Populist Authoritarianism
16 Judicial Power in Processes of Transformation
Introduction
Modes of Transformation and the Role of the Judiciary
“Transitional Constitutionality”
Excursus on the Crisis of the Constitutional State
Constitutional Courts as Targets of Vehement Rejection
17 Neither Legal nor Illegal: Today’s Operational Spaces Barely Captured in Law
Introduction
Today’s Borders: Many More Than the Law Can Recognize
Locating the Border
Thick Territorial Inserts
Finance: An Assemblage of Capabilities
The Specifics of Today’s Capital Market
An Emergent Field for Transactions
Eroding the Status of Sovereign Debt: The Rise of Vulture Funds
Vulture Funds Bring Sovereigns to Their Knees
International Legal Avenues for Sovereign Default
Conclusion
Index

Citation preview

JUDICIAL POWER

The power of national and transnational constitutional courts to issue binding rulings interpreting a constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power – legal scholars, political scientists, and judges – take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.   is Professor Emerita of Political Science at Hamburg University, and Senior Fellow at the Hertie School of Governance, Berlin. She was the Max Weber Professor in German and European Studies at New York University from 2014 to 2016, and Senior Emile Noël Fellow at New York University School of Law. She received the Schader Award 2016 for innovative research. She investigates the political role of constitutional courts, the impact of campaign finance on democratic governance, and European integration. In her research on the European Union she explores the conditions that enhance the positive potential of cultural, economic, and political difference for democratic governance. Her publications include The Judicialization of Politics in Germany (1994), The Concept of Difference (2011), and Das politische Europa (3rd ed., forthcoming 2019).

JUDICIAL POWER How Constitutional Courts Affect Political Transformations

Edited by CHRISTINE LANDFRIED

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 79 Anson Road, #06–04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning, and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781108425667 DOI: 10.1017/9781108348669 © Cambridge University Press 2019 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2019 Printed and bound in Great Britain by Clays Ltd, Elcograf S.p.A. A catalogue record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Names: Landfried, Christine, editor. Title: Judicial power : how constitutional courts affect political transformations / edited by Christine Landfried. Description: Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2019. | Includes index. Identifiers: LCCN 2018034110 | ISBN 9781108425667 (hardback) | ISBN 9781108443098 (pbk.) Subjects: LCSH: Judicial power. | Political and judicial decision-making. | Judicial power–European Union countries. | National and transnational constitutional courts. Classification: LCC K3367 .J839 2018 | DDC 347/.012–dc23 LC record available at https://lccn.loc.gov/2018034110 ISBN 978-1-108-42566-7 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

List of Contributors Acknowledgments

viii xvi 1

Introduction  

PART I 1

Democratic Legitimacy of Judicial Power

Judicial Power and Democracy

19 21

 . 

2

Judicial Politics versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle?

36

 

3

Judicialization of Politics or Politicization of the Courts in New Democracies?

66

 . 

4

European Judicial Appointments Reform: A Neo-Institutionalist Approach

82

 

5

The Law of Democracy and the European Court of Human Rights  . 

v

109



vi

PART II 6

Democratic Effectiveness of Judicial Power

Constitutional Court and Politics: The Polish Crisis

139 141

 

7

Democracy, Political Crisis, and Constitutional Jurisdiction: The Leading Role of the Brazilian Supreme Court

163

ˊ     

8

Judicial Power and European Integration: The Case of Germany

183

 . 

9

Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust

202

    

PART III

10

Legitimacy, Effectiveness, and Judicial Methods of Decision-Making

Transnational Judicial Interactions and the Diplomatization of Judicial Decision-Making

231

233

 u¨ -

11

Judging Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes

250

 

12

On the Representativeness of Constitutional Courts: How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining Their Independence

281

 

13

After the Heroes Have Left the Scene: Temporality in the Study of Constitutional Court Judges  

292



PART IV

14

Judicial Power in Processes of Transformation

What Exactly Is Political about Constitutional Adjudication?

vii

305

307

 

15

Populism, Constitutional Courts, and Civil Society

318

 

16

Judicial Power in Processes of Transformation

342

 . ß

17

Neither Legal nor Illegal: Today’s Operational Spaces Barely Captured in Law

365

 

Index

384

CONTRIBUTORS

  was born in 1944, in Budapest. He has been in the United States since 1957, receiving academic degrees at Queens College (BA) and the University of Chicago (MA, PhD) in history. He is currently the Dorothy Hart Hirshon Professor in Political and Social Theory at the New School for Social Research in New York and has taught at Ecole des Hautes Etudes, and Sciences Po in Paris, and at the Central European University in Budapest; had a Fulbright teaching grant to Montevideo in 1991; and was Distinguished Fulbright Professor at the Goethe University in Frankfurt, Germany as well as Invited Professor at the Law School of the University of Toronto. Arato served as a consultant for the Hungarian Parliament on constitutional issues 1995–1997, and as US State Department Democracy Lecturer and Consultant (on constitutional issues) Nepal 2007. He was reappointed by the State Department in the same capacity for Zimbabwe during November 2010. His most recent publications are Constitution Making under Occupation: The Politics of Imposed Revolution in Iraq (2009), Post Sovereign Constitution Making: Learning and Legitimacy (2016), Adventures of the Constituent Power (2017), and International Interventions in Domestic Constitution Making (forthcoming 2019). ˊ   is a Justice at the Brazilian Supreme Court. He holds an LLM from Yale Law School and an SJD degree from Rio de Janeiro State University, where he has been a law professor since the 1980s. He did his postdoctoral studies at Harvard Law School, where he has also been a Visiting Scholar. He has published extensively in Brazil, the United States, Latin American countries, and Europe. Some of his works published in English include The Americanization of Constitutional Law and Its Paradoxes: Constitutional Theory and Constitutional Jurisdiction in the Contemporary World (2010), Here, There, and Everywhere: Human Dignity in Contemporary Constitutional Law and in the Transnational Discourse (2012), “Reason without Vote: The Representative viii

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and Majoritarian Function of Constitutional Courts” as well as other chapters in Democratizing Constitutional Law: Perspectives on Legal Theory and Legitimacy of Constitutionalism (2016); Developments in Brazilian Constitutional Law: The Year 2016 in Review (2017); and Countermajoritarian, Representative, and Enlightened: The Roles of Constitutional Courts in Democracies (2018). He has also published The Tragedy of Julius Caesar: Power, Ideal and Treason (2017).   is Professor Emeritus of the University of Warsaw (Poland) and Dr.h.c. of the University of Gdansk (2017). He served as a Judge of the Polish Constitutional Court (1993–2001) and as a Judge of the European Court of Human Rights (2002–2012). He was a Visiting Professor at several universities (NYU, University of Chicago, Yale, Washington University in Saint Louis, Paris I – Sorbonne, University Aix-Marseille, Tel Aviv University, Tübingen University, and Hong Kong University) and Vice President of the International Association of Constitutional Law (2010–2018). His research areas are comparative constitutional law, judicial review, and human rights. His publications include External Review of Constitutional Amendment (2011), Disabling the Constitutional Court in Poland? (2016), and Polish Constitutional Law (21st ed., 2018, in Polish).   teaches constitutional law at Humboldt University Berlin. He is also a Permanent Fellow of the Wissenschaftskolleg zu Berlin (Institute for Advanced Study), whose director he was from 2001 to 2007. For many years he was a regular Visiting Professor at Yale Law School. From 1987 to 1999 he served as a Justice of the Federal Constitutional Court of Germany. He holds honorary doctoral degrees from the universities of Toronto, Goettingen, Porto Alegre, and Bucarest. He is a member of the Berlin-Brandenburgische Akademie der Wissenschaften and the Academia Europaea, and an honorary member of the American Academy of Arts and Sciences. Books he published in English include Sovereignty: The Origin and Future of Political and Legal Change (2015), Constitutionalism: Past – Present – Future (2016), and The Constitution of European Democracy (2017).   is the Inge Rennert Professor of Law at NYU School of Law as well as a Research Professor at the WZB Social Science Center Berlin and Humboldt University. His research focuses on basic issues in European and comparative constitutional law, international law, and

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philosophy of law. He has held visiting appointments at Yale Law School, Harvard Law School, and the European University Institute (Florence), and has lectured at other leading universities worldwide. Kumm is a founding editor and co-editor-in-chief of Global Constitutionalism (Cambridge University Press) and Jus Cogens and on the board of I•CON as well as other journals. Publications include The Cosmopolitan Turn in Constitutionalism: An Integrated Conception of Public Law (2013), Constituent Power, Cosmopolitan Constitutionalism, and Post-positivist Law (2016), and The Turn to Justification: On the Structure and Domain of Human Rights Practice (2018).   is Professor Emerita of Political Science at Hamburg University, and Senior Fellow at the Hertie School of Governance, Berlin. She was the Max Weber Professor in German and European Studies at NYU from 2014 to 2016, and Senior Émile Noël Fellow at NYU School of Law. She received the Schader Award 2016 for innovative research. She investigates the role of constitutional courts in democracies, the impact of campaign finance on democratic governance, and the process of European integration. With her research on the European Union, she aims to explore the conditions that enhance the positive potential of cultural, economic, and political difference for democratic governance. Her publications include The Judicialization of Politics in Germany (1994), Parteifinanzen und politische Macht (2nd ed., 2004), The Concept of Difference (2011), and Das politische Europa (3rd ed., 2019).   is the Jack G. Clarke Professor of Law and Director of Graduate Studies at Cornell Law School and co-directs the Cornell Summer Institute of International and Comparative Law in Paris. He teaches and writes in the areas of comparative law, law of the European Union, comparative constitutional law, and judicial process. He has written two monographs: Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (2004) and Judicial Transformations: The Rights Revolution in the Courts of Europe (2009). He is currently completing a new book, tentatively entitled Judicial (Dis-) Appointments: The Rise of European Judicial Appointments Reform.  u¨ - is Professor of Public Law at the University of Bielefeld. She was Director of the Environment Department of the municipal administration of Bielefeld (1988–1992), Chairperson of the German Council of Environmental Advisors (2000–2002), Executive

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Director of the Center for Interdisciplinary Research, University of Bielefeld (1996–2002), Chairperson of the Advisory Board of the Wissenschaftskolleg zu Berlin (2003–2009), and served as a Justice of the German Federal Constitutional Court (2002–2014). She is a member of the Berlin-Brandenburgische Akademie der Wissenschaften, honorary bencher of the Honourable Society of the Middle Temple, and honorary member of the Argentine Association of Constitutional Justice. She received the Leibniz Award in 2000 and the Hegel Prize in 2012. Projects under way include analyses of cultures of deliberation in constitutional courts, problems of democracy in the process of Europeanization and globalization, and the interplay of law and morality (with a focus on anticorruption policies). Her recent publications include The Principle of Proportionality in the Case-Law of the German Federal Constitutional Court (2014), Democracy, Separation of Powers and International TreatyMaking: The Example of TTIP (2016), and Cultures of Deliberation in Constitutional Courts (2016).  .  is Chair of Public Law, European Law and Public International Law, Comparative Law, Law & Politics at the University of Bielefeld (law faculty). He studied law, political science, and history at the Universities of Bonn and Munich, at the Institut d’Etudes Politiques de Paris (Sciences-Po) and at Yale Law School. His research interests focus on all aspects of European constitutional law, European administrative law, comparative public law with a focus on the United States and France, the relationship between European law and politics, parliaments in times of globalization, and Internet law. He was Counsel to the German Parliament and to the Federal Government for numerous cases at the German Constitutional Court, including the proceedings on the Treaty of Lisbon, the first Euro crisis case, and the CETA case. He is a member of the German Football Association’s Federal Court (ethics chamber). His publications include Kompetenzüberschreitung und Letztentscheidung (2000), “Rashomon in Karlsruhe – A Reflection on Democracy and Identity in the European Union” (2011), “Rebels without a Cause? A Critical Analysis of the German Constitutional Court’s OMT Reference” (2014).   holds an LLM from Harvard Law School and a Master of Laws degree from the Rio de Janeiro State University. Aline is a Professor of Constitutional and Election Law at the University Center of Brasília. She clerked for Justice Luís Roberto Barroso at the Brazilian Federal

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Supreme Court. Her research agenda focuses on the interplay between constitutional law, fundamental rights, and the political process. Her recent publications include Election Law and Free Speech (2017), and Developments in Brazilian Constitutional Law: The Year 2016 in Review (2017) (co-authored with Luís Roberto Barroso and Juliano Benvindo).   joined the Department of International and European Law of Maastricht University as a tenure-track Assistant Professor in September 2017. She is affiliated as a Visiting Scholar at the Yale Information Society Project since 2014. Before joining Maastricht University, Bilyana was a Max Weber postdoctoral fellow at the European University Institute in Florence, Italy, and at NYU where she was a part of the Jean Monnet Center and, later, the NYU Information Law Institute. Bilyana researches and writes on topics of comparative constitutional law. Her publications include The Notion of Consensus as a Route to Democratic Adjudication? The United States Supreme Court, the Court of Justice of the European Union and the European Court of Human Rights Compared (2012), Towards an Internal Hierarchy of Values in the EU Legal Order: Balancing the Freedom of Speech and Data Privacy (2016), and Federalism, Backlash and Rights: Toward a New Research Agenda (co-edited with Thomas Kleinlein, 2017).  .  is the Sudler Family Professor of Constitutional Law at NYU School of Law and a member of the American Academy of Arts and Sciences. He is a co-author (with Samuel Issacharoff and Pamela S. Karlan, and Nathaniel Persily) of The Law of Democracy: Legal Structure of the Political Process (5th ed., 2016), and an expert on legal issues concerning the design of democratic processes and institutions. Some of his major recent academic articles include Separation of Parties, Not Powers (2006), Is the Supreme Court a “Majoritarian” Institution? (2010), Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America (2011), Law and the President (2012), Romanticizing Democracy: Political Fragmentation, and the Decline of American Government (2014), and The Constitutionalization of Democratic Politics (2014).  . ß is Professor Emeritus of Law and Politics at Free University Berlin and of the Hertie School of Governance, Berlin. His research interests focus on constitutional theory, including challenges to

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liberal democracy and the auspices of supranational and global constitutionalism. His publications in English language include “Associative Rights: The Rights to the Freedoms of Petition, Assembly, and Association” in The Oxford Handbook of Comparative Constitutional Law (eds. M. Rosenfeld and A. Sajó, 2012), Law as a Source of Pluralism? (2015), and Citizens in Europe: Essays on Democracy, Constitutionalism and European Integration (co-authored with Claus Offe, 2016).   is the Arthur Liman Professor of Law at Yale Law School. Her scholarship focuses on the impact of democracy on government services, from courts and prisons to post offices, on the relationships of states to citizens and noncitizens, on the forms and norms of federalism, and on equality and gender. Her books include Migrations and Mobilities: Citizenship, Borders, and Gender (co-edited with Seyla Benhabib, 2009), Federal Courts Stories (co-edited with Vicki C. Jackson, 2010), Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms (with Dennis Curtis, 2011), and the Daedalus volume The Invention of Courts (co-edited with Linda Greenhouse, 2014). Recent articles include “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights” (2015) and “Bordering by Law: The Migration of Law, Crimes, Sovereignty, and the Mail,” in Nomos LVII (2016). Professor Resnik, a Managerial Trustee of the International Association of Women Judges, was selected for an Andrew Carnegie Fellowship for 2018–2020, awarded to support innovative scholarship on pressing contemporary issues.   is Assistant Professor of EU Law at Leiden University. He previously was an Emile Noël Fellow at the Jean Monnet Center at NYU and conducted his PhD research on the principle of EU loyalty at the KU Leuven under the supervision of Professor Geert De Baere and Professor Koen Lenaerts. He also holds a Master of Laws from this university, a Bachelor of Laws from the University of Antwerp, and an LLM from NYU. His publications include EU Loyalty as Good Faith (2015) and “Limits to Loyalty: The Relevance of Article 4(3) TEU” (2016).   is the University Professor of Law and Comparative Democracy and the Justice Sydney L. Robins Professor of Human Rights at the Cardozo School of Law. He was the founding editor in chief

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of the International Journal of Constitutional Law (I•CON) and president of the International Association of Constitutional Law (1999–2004). His books include The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture and Community (2010), Law, Justice, Democracy and the Clash of Cultures: A Pluralist Account (2011), The Oxford Handbook of Comparative Constitutional Law (2012) (co-edited with Andras Sajó), Constitutional Secularism in an Age of Religious Revival (2014), Comparative Constitutionalism: Cases and Materials (3rd ed., 2016) (with Baer, Dorsen, Mancini, and Sajó), and The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (2018) (co-edited with Mancini).   is the Robert S. Lynd Professor of Sociology at Columbia University and a Member of its Committee on Global Thought, which she chaired from 2009 until 2015. She is a student of cities, immigration, and states in the world economy, with inequality, gendering, and digitization three key variables running through her work. Born in the Netherlands, she grew up in Argentina and Italy, studied in France, was raised in five languages, and began her professional career in the United States. Together, her authored books are translated in more than 20 languages. She regularly writes for general audience publications. Her comments have appeared in The Guardian, The New York Times, Le Monde Diplomatique, Le Monde, Vanguardia, Clarin, Die Zeit, Newsweek International, The Financial Times, among others. She has received many awards and honors, among them the 2013 Principe de Asturias Prize in the Social Sciences, was elected as a Foreign Member of the Royal Academy of the Sciences of the Netherlands, and was made a Chevalier de l’Ordre des Arts et Lettres by the French government. Her recent books include Territory, Authority, Rights: From Medieval to Global Assemblages (updated 2nd ed., 2008), Expulsions: Brutality and Complexity in the Global Economy (2014), and Cities in a World Economy (updated 5th ed., 2018).  .  teaches in the Jurisprudence and Social Policy Program of the University of California, Berkeley School of Law, and has held numerous appointments in US and overseas political science and law faculties including Harvard, Yale, Oxford, and the European University Institute. He is the author of numerous books and articles on US, EU, and comparative public law.

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xv

  is the William Nelson Cromwell Professor of Law at Harvard Law School. His work focuses on comparative constitutional law, the US Supreme Court, and the theories underlying constitutional review around the world. His recent publications include Advanced Introduction to Comparative Constitutional Law (2nd ed., 2018) and Advanced Introduction to Freedom of Expression (2018).  .  is Professor Emerita at Texas Christian University and specializes in comparative judicial politics. She has published multiple books, articles, and book chapters focusing on various elements of American, European, and transnational courts. Her books include Constitutional Politics in Italy (2000), Courts Crossing Borders (2005), Courts and Terrorism (2010), and Globalizing Justice (2010).

ACKNOWLEDGMENTS

This book is the result of an adventure. An adventure made possible by institutions, colleagues, and friends. First, I want to thank the German Academic Exchange Service (DAAD) and the Faculty of Arts and Science of New York University (NYU) for entrusting me with the Max Weber Chair for German and European Studies. It was a joy cooperating with Nina Lemmens, the director, and Michael Thomanek, the senior program officer, at the DAAD in New York. At NYU, I taught at the Center for European and Mediterranean Studies. I am grateful to Larry Wolff, director, and Mikhala Stein, administrative director of the center, for their generous support. Living and working in a new culture and in new surroundings is always challenging. I have been blessed with the friendship of Marianne Engle, Robert Engle, and Sally Engle Merry. It has been precious to spend time with them, go to concerts together, and exchange ideas. When problems came up, I could count on them. They made me feel at home in New York. Thank you, Marianne, Robert, and Sally! This volume contains the contributions to the Max Weber Conferences on “The Power of Constitutional Courts in a Globalizing World” held at NYU in April and December 2015. Participants of the conferences included legal scholars, political scientists, sociologists, and justices of constitutional courts. This created the rare chance of a dialogue between scholars and judges. I am greatly indebted to the participants for sharing their knowledge and ideas. They turned the making of this book into a thrilling learning process. The conferences took place at Deutsches Haus at NYU. This is a beautiful location in the middle of Manhattan, a small modest house between amazing skyscrapers. Amazing as well is Juliane Camfield, the director of Deutsches Haus at NYU. Always full of ideas and energy, open for new and unusual subjects, she builds bridges between cultures. I wish to thank her and Sarah Girner, cultural program director of xvi

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Deutsches Haus at NYU, for their continuous engagement in the activities of the Max Weber Chair. When organizing the Max Weber Conferences, I could not have imagined a more creative and more learned colleague than Gráinne de Búrca. Her intellectual curiosity and deep knowledge of European and international law made working with her a pleasure. I appreciated continuing our cooperation when I became a Senior Émile Noël Fellow at the Jean Monnet Center at NYU School of Law. Gráinne de Búrca and Joseph H. H. Weiler, leading the interdisciplinary program in international and regional economic law and justice, created an inspiring atmosphere at 22 Washington Square North. I am grateful to both for admitting me to the community of scholars at the Jean Monnet Center. Thanks to Peter Lindseth, Senior Émile Noël Fellow in the spring 2017, for many discussions on the the power of constitutional courts. I am also grateful for the comments and criticism of two anonymous reviewers. Finally, I want to thank Finola O’Sullivan, executive publisher at Cambridge University Press. Without her enthusiasm for research on law and politics, her expertise, and friendly guidance, this book would have never been published.

u Introduction   The authority of national, supranational, and international constitutional courts to issue binding rulings interpreting a constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges, by interpreting a constitution, have the power to influence politics and policies? The authors of this volume, scholars and judges, take a fresh look at this problem. To date, research has concentrated on the legitimacy,1 or on the effectiveness,2 or on specific decision-making methods of constitutional courts.3 In this volume, by contrast, we explore the relationship among these three factors. The emphasis is on linking the legitimacy and effectiveness of constitutional courts to methods of judicial decision-making. National and transnational constitutional courts4 must be perceived by citizens as properly endowed with the power to review acts of public authority. This trust not only grounds the legitimacy of constitutional adjudication, but is also a precondition of its effectiveness. And both the legitimacy and effectiveness of constitutional adjudication require a specific judicial logic of decision-making.

I am deeply grateful to Robert C. Post for editing this introduction. And my thanks to Judith Resnik for important comments. 1 A. Føllesdal, J. K. Schaffer, and G. Ulfstein (eds.), The Legitimacy of International Human Rights Regimes (Cambridge: Cambridge University Press, 2014). 2 M. Lasser, Judicial Transformations: The Rights Revolution in the Courts of Europe (Oxford: Oxford University Press, 2009). 3 K. Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge: Cambridge University Press, 2015). 4 The term transnational constitutional courts is used as term for both international courts like the ECtHR and supranational courts like the ECJ.





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Constitutional Adjudication as a Resource for Democratic Governance A modern constitution creates a people comprised of free and equal citizens who agree on principles and rules of self-governance (Preuß, Chapter 16). In a liberal democracy, the realization of constitutional principles, for example freedom and equality, must rely on procedures that are based on human dignity and equal respect for all. The very integrity of democracy requires mechanisms for protecting persons against the misuse of political power, and judicial review is seen as such a mechanism (Rosenfeld, Chapter 2). Judicial power, like political power, derives its authority from the sovereignty of the people, which “makes itself felt in the power of public discourses.”5 Both political and judicial power, if they are to be legitimate, must be anchored in the discourses of public spheres. From this perspective, the “judge’s obligation to participation in a dialogue”6 must be interpreted in its broadest sense, as a dialogue within courts, among courts, between courts and political actors, and between courts and the public at large. The binding rulings of constitutional courts give rise to debates that may, over time, produce new rulings changing the principles announced. This interaction between courts having judicial power and the political, legal, and societal landscapes in which they operate is a core concern of this book. To analyze judicial decision-making in the twenty-first century within this larger political context, we need to take into consideration the challenges of a globalizing world. Within nation-states, the reality of democratic constitutionalism is increasingly confronted with deeplyrooted cultural, economic, and political differences. Beyond the nationstate, there is the challenge of a “multiplication of different normative orders.”7 In both contexts, differences can have negative and positive consequences for democratic constitutionalism. Therefore, it becomes important to practice an understanding of constitutionalism in which actors take differences seriously, and at the same time consider how differences

5

6 7

J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. W. Rehg (Cambridge, MA: MIT Press 1998), p. 486. O. M. Fiss, “The Forms of Justice,” Harvard Law Review 93 (1979), 1–58 [13]. S. Sassen, Territory – Authority – Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press 2006), p. 11.





might support principles of democratic constitutionalism.8 When different cultures live together, conflicts based on “intense moral dissension”9 increase. We thus need a “morally reflexive constitutionalism that demystifies the idea of progress but does not deny it altogether.”10 Constitutional courts can facilitate such a constitutionalism and encourage a society continuously to reflect upon the rules of self-governance insofar as judges are called upon to relate concrete policies to the “values inherent in the constitutional agreement the society has accepted.”11 Thus, constitutional courts can contribute to good governance by creating room for the paradox of “political unity in dissension.”12 But in a world of rising populism, we confront the grim reality of growing segments of the population repudiating the principles of constitutional democracy, with its separation of powers and independent courts. It is no coincidence that populist leaders “secure power through control of the judiciary and the media.”13 Lech Garlicki’s precise analysis of the development of the Polish Constitutional Court demonstrates how the content and the style of judicial decisions change once the independence of a court is endangered and “the distrust towards a pluralistic concept of state and society” has led to the “elimination of mechanisms based on the separation of powers” (Garlicki, Chapter 6).

Legitimacy and Effectiveness through Modes of Decision-Making The legitimacy and effectiveness of constitutional courts depend upon the difference between political and judicial decision-making. To be sure, 8

9

10 11

12 13

C. Landfried, “The Concept of Difference,” in K. Raube and A. Sattler (eds.), Difference and Democracy: Exploring Potentials in Europe and Beyond (Frankfurt and New York: Campus, 2011), pp. 15–45. Cf. R. Putnam, “E Pluribus Unum: Diversity and Community in the Twenty-First Century,” Scandinavian Political Studies 30 (2007), 137–174 has shown by an empirical study that the greater the ethnic difference in a community, the less citizens participate in public life. He concludes that the key challenge for modern, differentiated societies is to create a new, more capacious sense of “we.” U. K. Preuß, “Toward a New Understanding of Constitutions,” in C. Offe and U. K. Preuß, Citizens in Europe: Essays on Democracy, Constitutionalism and European Integration (Colchester, UK: ECPR Press 2016), p. 141. Ibid., p. 140. D. Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, NJ, and Oxford: Princeton University Press 2010), p. 7. Preuß, “Toward a New Understanding of Constitutions,” p. 141. J. W. Mueller, “Homo Orbánicus,” review of P. Lendvai, Orbán: Hungary’s Strongman (Oxford: Oxford University Press, 2018), The New York Review of Books, April 5, 2018.



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constitutional courts are not apolitical. But the interesting question is: “What exactly is political about constitutional adjudication and what not?”(Grimm, Chapter 14). The object of constitutional adjudication is political because constitutional courts review acts of public authority. And, inevitably, the judgments of these courts have far-reaching political effects. But the process of judicial decision-making should follow legal procedures and criteria (Chapter 14). This volume aims to examine this mix of political and legal elements within constitutional adjudication. It is my hypothesis that judicial review allows for a method of reflecting on social integration that differs from the mode of politics and, precisely because of the difference between judicial and political decision-making, increases the overall rationality of democratic governance. In modern societies, law and politics are not only used as distinct phases of a larger process of social integration,14 but also as distinct modes of social integration. Therefore, constitutional courts should be independent but not detached from politics.15 Parliamentary law as one of the objects of judicial review is the result of politics with its manifold conflicts of interest. And while law rests on “the presumption of agreement,” in fact conflicts routinely continue.16 Constitutional court judges, when applying very abstract constitutional norms to concrete cases, cannot avoid dealing with political conflicts that may have been temporarily reconciled, but not resolved, by the concrete parliamentary law under review. Such conflicts, as well as conflicts arising in federal systems between subunits and the central government, should not be seen as “pathological.” As Judith Resnik (Chapter 11) proposes, they should instead be acknowledged as “positive features in governance in which political and legal transformations are always underway.” When the arena changes from a parliament to a constitutional court, the actors, procedures, and criteria that count as reasons all change. Courts require distinctively legal methods. Though the interpretation of constitutional norms needs more creativity than the application of ordinary law,17 legal methodology channels and limits judicial discretion (Grimm, Chapter 14). It is always a warning sign of the politicization

14

15 16 17

R. Post, “Theorizing Disagreement: Reconceiving the Relationship between Law and Politics,” California Law Review 98 (2010), 1319–1350 [1324]. Ibid., 1343: “As social practices, politics and law are both independent and interdependent.” Ibid., 1323. This is why Robertson, The Judge as Political Theorist, p. 348, argues “that the richness of judicial activity on constitutional matters can only be handled if we cease to try to force

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when judges clearly violate legal methods.18 By offering an additional layer of deliberation on the basis of legal methods of decision-making, national and transnational constitutional courts enhance the complexity of governance structures. The enhanced complexity of the decisionmaking structures, in turn, is a resource for solving complex problems in liberal democracies of the twenty-first century. When judges, however, decide in the same way as politicians, and politicians are “governing like judges,”19 then the complexity of decision-making structures is reduced. Judicial methods are not “better” than political methods; they are different. The crucial point is rather to emphasize how differences between judicial and political decision-making create legitimacy and effectiveness. A constitutional democracy is built upon the “differentiation (separation and division) of powers none of which having the right to monopolize speaking in the name of the popular sovereign” (Arato, Chapter 15). And likewise, there should be different modes of decision-making in the realm of politics and the realm of courts. Connecting the legitimacy and effectiveness of judicial review to modes of deciding builds upon “a genuinely proceduralist understanding of democracy. The point of such an understanding is this: the democratic procedure is institutionalized in discourses and bargaining processes by employing forms of communication that promise that all outcomes reached in conformity with the procedure are reasonable.”20 Therefore, the most decisive variable for democratic governance is the “discursive level of the public debates.”21 The capacity of public discourses for rationalizing political power is all the more important, the more we experience the emotional dimension of public opinion. We should not

18

19

20

21

constitutional courts into the classic trichotomy, and accept instead that they have come to exercise . . . a new, fourth branch of power.” For a striking topical example see U. K. Preuß, “Kataloniens Kampf geht nicht um Freiheit, sondern um Identität,” Verfassungsblog, April 3, 2018. A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press 2000), p. 204. Habermas, Facts and Norms, p. 304. The English translation of the quoted passage does not fully correspond to the German text. Jürgen Habermas speaks of democratic procedures that presumably have reasonable results: “die Vermutung der Vernünftigkeit begründen sollen.” Faktizität und Geltung (Frankfurt: Suhrkamp, 1992), p. 368. In his normative concept, Habermas relates democratic procedures to the expectation of reasonable results. See the different understanding of a proceduralist understanding of democracy with decoupling the process of communication from normative expectations: N. Luhmann, Legitimation durch Verfahren (Frankfurt: Suhrkamp, 10th ed., 2017), pp. 32–37. Habermas, Facts and Norms, p. 304.



 

exclude the emotional dimension from public discourses but open up our perspective for possibilities to combine rationality and emotion. Constitutional courts can potentially enhance the discursive level when they listen to the arguments of persons involved in concrete cases, when they debate in judicial public hearings with representatives of politics and civil society about the constitutionality of specific policies, and when they interact with other courts. With a few exceptions, like the Brazilian Supreme Court (Barroso and Osorio, Chapter 7), constitutional courts do not deliberate in public. But from the questions judges ask in public hearings, the reasons they give for their decisions, and their published dissents, we can construct the specific character of the method applied in the case. We can determine whether or not that method is legal and seek to ascertain whether or not it has actually informed judicial decision-making. There are many forms of difference between the specific logic of judicial decision-making and the specific logic of political decisionmaking. There are differences of competence,22 communication, and interaction (Lübbe-Wolff, Chapter 10), representativeness (Kumm, Chapter 12), temporality (Tushnet, Chapter 13), and methodology (Resnik, Chapter 11 and Grimm, Chapter 14) just to name the dimensions addressed in this book. Mattias Kumm explores, for example, the degree to which judges can practice a reasoning that is connected to public debates thereby gaining “argumentative representativeness” (Chapter 12) without undermining their independence. The differences between judicial and political decision-making are not dichotomous but gradual. Let us take, for example, the difference of competence between constitutional courts and parliaments. John Ely compared the task of a constitutional court judge to a referee.23 A referee must intervene when a team has broken the rules, but may not comment on the result of the play. In Ely’s opinion, constitutional review is compatible with democracy so long as judges decide on political processes rather than on political outcomes. This distinction is convincing but not sufficient. There are cases in which constitutional courts have to make choices between competing constitutional principles. If one defines the legitimacy of legislative acts not only by democratic 22

23

G. Lübbe-Wolff, dissenting opinion in the OMT Case, BVerfG, Second Senate, Order of 14 January 2014, BVerfGE 134, 419, paras. 5 and 8. J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA, and London: Harvard University Press, 1980), p. 103.

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processes but also by just and reasonable outcomes, constitutional courts cannot avoid evaluating political outcomes. Therefore, a more flexible interpretation of the division of power between constitutional courts and politics is required. When it comes to the evaluation of processes, constitutional courts have broad competence and power shifts in favor of judicial review. When it comes to the evaluation of outcomes, the competence of constitutional courts is more restricted, and the authority shifts in favor of democratic politics.24 A clearly political way of decision-making cannot be transported into the judicial realm without consequences. This might be illustrated by an example. Gertrude Lübbe-Wolff (Chapter 10) scrutinizes judicial interactions between national and transnational courts. As the hierarchies between national and transnational courts are especially contested and, in addition, the involved actors have to cope with manifold differences in legal cultures, a “mutually cooperative” approach becomes necessary to prevent “disruptive clashes.” “Ping-pong games” are a way of cooperation. In these games, cooperation develops by several judicial decisions as a method of dealing with judicial conflicts between national and transnational courts. The point is illustrated by the decision of the German Constitutional Court referring preliminary questions to the European Court of Justice (ECJ) concerning the Outright Monetary Transactions (OMT) program of the European Central Bank. The ECJ rejected some of the objections made by the German Constitutional Court against the OMT program. Yet it did not create an open conflict but instead took the German concerns to be hypothetical. The next step in the ping-pong game was the decision of the German Constitutional Court that the OMT program was constitutional given certain restrictions. This result was possible only because the German Constitutional Court judges “read some more restrictions out of the ECJ’s ruling than the ECJ may have been aware of pronouncing” (Chapter 10). Such forms of cooperation involve diplomacy built upon compromises. In the opinion of Gertrude Lübbe-Wolff, these compromises belong to the world of politics. That is why compromises do not explicitly appear in the judgments of national and transnational constitutional courts. Instead judges take care to justify their decisions through legally defensible arguments. The more important such compromises become for judicial interactions, the less judicial review is distinct from policy-making. 24

C. Landfried, “The Judicialization of Politics in Germany,” International Political Science Review 15 (1994), 113–124 [122].



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This does not mean that courts should not consider political circumstances, economic interests, or sociological enquiries. Martti Koskenniemi has rightly shown that lawyers “have already extended the range of argumentative options open to them. They have argued about economic interests, social progress, the need of political stability and so on. Yet, they have done this in secret, perhaps more by intuition than by reasoned choice.”25 The inclusion of political, economic, and social considerations into judicial discourses should nevertheless be done in a way that differs from political discourses. Bargaining is, for example, a matter of politics. Even if judges must bargain to get majorities in their respective court or chamber of court, the focus of their internal work should be on arguing.26 But what about the real world of constitutional courts? Do these courts really add value to democratic governance by deciding in different ways than politics?

Structure of the Book The organization of the book follows the line of our argument. In the first part, the authors focus on theoretical concepts for analyzing the democratic legitimacy of judicial power within and beyond the nation-state. The judicialization of politics, the possibility of a principled distinction between judicial and ordinary politics, the judicial methods of protecting the law of democracy itself, and the political interests behind the European judicial appointment reforms are discussed. In the second part, case studies of democratic effectiveness of judicial power in political transformations are presented. We have selected studies of the role of constitutional courts in transitions to democracy and in the transformational processes of European integration. Throughout the case studies, it becomes obvious that modes of judicial decision-making are decisive for the capacity of constitutional courts effectively to protect a constitution, treaty, or convention of human rights. In the third part, the relationship between legitimacy, effectiveness, and judicial methods is 25

26

M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge: Cambridge University Press, 2005), p. 543. Robertson, The Judge as Political Theorist, p. 21, concludes based on a comparative empirical analysis of constitutional adjudication in Canada, Eastern Europe, France, Germany, and South Africa: “Of course judges bargain with each other to get majorities on multimember courts – but the currency they trade in is itself argument.”

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explored. Analyses of transnational judicial interactions, as well as of methods of mediating conflicts between subunits in pluralist legal regimes, are presented. In the fourth part, judicial power in processes of transformation is scrutinized. Because the rise of populism is endangering the very foundations of constitutional democracy, we examine the relation between populism and constitutional courts, and ask why populists so vehemently attack independent constitutional courts. We start the debate with Martin Shapiro’s argument that judicial review and democracy are not compatible. Judicial review involves, in his opinion, “a small number of unelected men and women making public policy or blocking public policy made by the people or their representatives,” whereas “democracy means public policy made by the people or their elected representatives.” For him, the really interesting question is: “How do they get away with it? How do a few people without the purse or the sword make public policy pronouncements that people and powerful institutions are willing to obey?”( Shapiro, Chapter 1). The authors of the book tend to give three answers.

Democratic Legitimacy of Judicial Power First, democracies are built upon the majority-principle but at the same time “no constitutional democracy can be purely majoritarian” (Rosenfeld, Chapter 2). It is the task of constitutional courts to protect fundamental rights and the basic rules of democratic governance from the risks of majoritarian politics. As it might happen, and as it has happened, political majorities can act against the principles of constitutional democracy, thereby damaging the rules of self-governance and violating fundamental rights. That is why in many democracies around the world constitutional courts have been established as institutions that have the power to issue binding interpretations of the constitution and that can – and actually do27 – decide against majoritarian politics. Once the constituent power of a state has decided to have judicial review, it is inevitable that constitutional court judges will affect politics and policies.

27

See Landfried, “The Judicialization of Politics in Germany,” p. 119. For the Supreme Court see R. H. Pildes, “Is the Supreme Court a ‘Majoritarian’ Institution?,” The Supreme Court Review (2010), 103–158 [143] citing data that show that the Supreme Court from 1789 to 2006 has “struck down or constitutionally limited federal legislation in 25 percent of the cases involving a constitutional challenge.”

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To ensure that acts of public authority accord with the rules and principles of the constitution necessarily impacts policy-making. Constitutional courts “can get away with it” because it is assumed that judicial review is one way (among others) of guaranteeing that elected majorities must act in accordance with the constitution. The authors of this volume believe that national democracies – even if judges are not neutral arbiters28 – are better off with regard to the legitimacy of politics when having constitutional courts. They also assume that international and supranational organizations are more likely to comply with treaties when there are transnational courts. This explanation for accepting judicial review has been criticized as an “overly idealist self-binding pre-commitment story.”29 Instead, the global trend toward judicial review is interpreted as part of a broader process, “whereby self-interested political and economic elites, while they profess support for democracy and sustained development, attempt to insulate policy-making from the vagaries of democratic politics.”30 This generalization is not justified because empirical evidence with regard to national constitutional courts shows that judicial review cannot altogether be characterized as being in the interest of the political and the economic elites.31 This conclusion is especially significant because we need constitutional courts and the public debates triggered by these courts to counteract the increasing privatization of adjudication. “Democracies need the opportunities for public, multi-party interaction that adjudication entails.”32 Constitutional courts frequently initiate public debates about constitutional questions and enhance multiparty interactions. There are, nevertheless, mechanisms in the relationship between democratic politics and judicial review that can be and often are detrimental to self-governance. The mere existence of judicial review changes the conditions of democratic policy making. Members of parliament adjust their drafts to existing or possible future decisions of the

28

29

30 31 32

M. Shapiro, Courts: A Comparative Political Analysis (Chicago and London: University of Chicago Press 1981), p. 27. R. Hirschl, “The Origins of the New Constitutionalism: Lessons from the Old Constitutionalism,” in S. Gill and A. C. Cutler (eds.), New Constitutionalism and World Order (Cambridge: Cambridge University Press 2015), p. 97. Ibid., p.107. Landfried, “The Judicialization of Politics in Germany,” p. 119. J. Resnik, “Reinventing Courts as Democratic Institutions,” Daedalus: Journal of the American Academy of Arts & Sciences 143 (2014), 9–27 [22].

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constitutional court.33 The anticipatory effect of judicial review, and the growing number of binding interpretations of the constitution, lead to a judicialization of politics. This process means that, on the one hand, more and more political questions34 are decided by courts and that, on the other hand, the political process is more and more influenced by judicial review and legal arguments. The judicialization of politics can dominate the political process to the extent that alternatives are reduced and the possibilities of the constitution are curtailed. Franz C. Mayer shows that the judgments of the German Constitutional Court on European integration have overloaded the political process in this way (Chapter 8). An excessive judicialization of politics is never a one-way street. Both judicial and political actors contribute to this process. Judges contribute to the judicialization of politics when they transgress their competence; political actors contribute when they anticipate future judicial review and tailor law making to potential judgments of the constitutional court.35 This is why Mary Volcansek (Chapter 3) argues that the best protection against the judicialization of politics and the politicization of constitutional courts is a functioning representative democracy with competitive elections and a rotation in power. When it comes to governance beyond the nation-state and the role of transnational courts – in the process of integration of (still) 28 member states in the European Union, for example, or in the process of cooperation of 47 member states in the Council of Europe – we observe a judicialization of international politics.36 Transnational courts must deal with a wide range of possible interpretations of treaties or conventions with abstract provisions, which gives judges considerable discretion. It does not come as a surprise that conflicts arise when there are significant overlaps between the jurisdictions of transnational courts. Timothy Roes and Bilyana Petkova (Chapter 9) take a close look at the cooperation between the ECJ and the European Court of Human Rights (ECtHR), arguing that this cooperation is more than comity and can be classified as a legal duty. 33

34

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36

C. Landfried, “Judicial Policy-Making in Germany: The Federal Constitutional Court,” in M. L. Volcansek (ed.), Judicial Politics and Policy-Making in Western Europe (London: Frank Cass 1992), p. 55. The term political question is not used in the sense of the political question doctrine of the US Supreme Court but means that the object of constitutional adjudication is political. C. Landfried, “The Judicialization of Politics in Germany,” International Political Science Review 15 (1994), 113–124. K. J. Alter, The New Terrain of International Law: Courts, Politics, Rights (Princeton, NJ, and Oxford: Princeton University Press 2014), p. 335.

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 

International or supranational law do not have the same social foundations as national law, even if we can no longer take for granted that in nation-states constitutionalism and judicial review are “firmly grounded in the norms of society.”37 The comparatively weak link between law and social norms in transnational legal orders has consequences for the substance of judicial review of transnational courts. Because legal reasoning cannot take place in a vacuum, transnational courts tend to draw on background norms of particular dominant societies38 or on dominant concepts such as economic neo-liberalism. Consider the adjudication of the ECJ. In the European Union a very specific constitutionalization of the European treaties has developed that allows the ECJ to significantly influence the development of integration. The European treaties contain many concrete policies that would be ordinary law in nation-states. But these treaties have become quasi-constitutional as a result of two judgments of the ECJ in 1962 and 1964, which introduced the direct applicability of European law and the primacy of European law over national law. The effect of this transformation was a creeping depoliticization.39 The basis for this gain in judicial power was a “methodological turn,”40 because the ECJ interpreted European law as an autonomous legal system that was neither part of international law nor dependent on national legal systems.41 Once again, we observe the close relation between the supranational court’s democratic legitimacy, effectiveness, and methods of decision-making. The judicialization of politics by a methodological innovation was linked to a substantive direction of the case law. In its decisions, the ECJ emphasized market integration. The “main beneficiaries” were the four fundamental freedoms of free movement of persons, goods, services, and capital, “all economic in nature.”42 The four freedoms “were transformed from objective principles for legislation into

37

38 39

40 41

42

B. Friedman, “Dialogue and Judicial Review,” Michigan Law Review 91 (1993), 577–682 [672]. I want to thank Turkuler Isiksel for making this point. D. Grimm, The Constitution of European Democracy (Oxford: Oxford University Press, 2017), p. 91. Ibid., p. 94. T. Isiksel argues that in the ECJ’s opinion 2/13 the autonomy of European law is now even interpreted in the sense of a European uniqueness and calls it a “mercantilist” approach. See “European Exceptionalism and the EU’s Accession to the ECHR,” The European Journal of International Law 27(2016), 565–589 [577]. Grimm, The Constitution of European Democracy, p. 94.





subjective rights of the market participants who could claim them against the member states before the national courts.”43 The privatization of many public services was a consequence. The example shows that the delegation of judicial review to transnational courts might result in promoting certain goals to the detriment of others.44 But before generalizing that transnational judicial decision-making typically promotes economic neo-liberalism, we need more empirical research.

Democratic Effectiveness of Judicial Power Second, the authors of the volume emphasize the independence of constitutional courts when answering to Martin Shapiro’s question “How do they get away with it?” The people as the sovereign accepts the power of constitutional courts because they expect constitutional court judges to be independent from politics. This independence is a necessary condition for the potential of constitutional courts to protect the effectiveness of a constitution or a convention of human rights. Contrary to a widely accepted opinion in political science,45 there is no contradiction between “input-legitimacy” by the participation of citizens and “output-legitimacy” by effective policies. We need both, legitimacy and effectiveness, for good governance,46 as well as for successful constitutional adjudication. The independence of constitutional courts in democracies with separation of powers can be secured by the design of these courts (Kumm, Chapter 12). Luís Roberto Barroso and Aline Osorio (Chapter 7) explain the prominent role of the Brazilian Supreme Court in public life since the early 2000s by its institutional singularities. The Brazilian Constitution specifies regulations that would ordinarily be addressed in everyday legislation; access to the Supreme Court is provided to a wide range of actors; and the Court is given jurisdiction over the crimes of public authorities. But institutional design is only one aspect of how constitutional courts successfully contribute to larger processes of social integration in nationstates or in transnational organizations. Mitchel Lasser’s case study on 43 44 45

46

Ibid. Cf. K. J. Alter, The New Terrain of International Law, p. 336. F. Scharpf, “Economic Integration, Democracy, and the Welfare State,” Journal of European Public Policy 4(1997), 18–36. M. Zürn and G. Walter-Drop, “Democracy and Representation beyond the Nation State,” in S. Alonso, J. Keane, and W. Merkel (eds.), The Future of Representative Democracy (Cambridge: Cambridge University Press 2011), p. 259.



 

reforms of the procedures for judicial appointments to the ECtHR and the ECJ in 2009–2010 (Chapter 4) is an example. These reforms, adopting new and more formal, transparent and expert-based procedures for the appointment of judges did not increase the legitimacy of the European courts. The deficit of legitimacy in the European Union is a matter of social legitimacy caused by an insufficient public acceptance of European integration. To address the public critiques of European courts by a reform of the election of the judges is not adequate. These reforms might have an impact on the effectiveness of European courts in a technical sense but not in the sense of strengthening the authority of these courts. This outcome must be seen in the context of the history of the reforms. The proclaimed goal of the reformers to strengthen the democratic effectiveness of European courts cannot hide the fact that an important motivation for initiating these institutional reforms in the middle of the 1990s was to protect the political interests of the powerful Western European states at a time when ten Central and Eastern European countries were applying for accession to the European Union (Chapter 4). The democratic effectiveness of transnational courts like the ECtHR, with its authority of rights adjudication for 800 million people in 47 member states of the Council of Europe, has to be related to the weak social foundations of international law. These weak social foundations of law influence the acceptance of Strasbourg court judgments in member states. In the complex pluralist system of the Council of Europe, the ECtHR has the difficult task of developing a common European understanding of human rights and at the same time of respecting the cultural and legal differences among member states. The ECtHR addresses this dilemma by, among other things, developing a specific method called the “consensus method.” If a certain interpretation of a human right prevails in a majority of the member states of the Council of Europe, the court regards this “consensus” as an indication of a small discretion of the national democracy in the protection of this right. If such a majority opinion is not recognizable, the “margin of appreciation” of the national legislator increases.47

47

Dzehtsiarou, European Consensus, pp. 102–114, gives some information on what exactly the ECtHR is analyzing when finding out whether a European consensus does exist. He concludes that a “substantive analysis of the laws of the Contracting Parties is relatively rare” [108].

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

On the one hand, the margin of appreciation enables the judges to be flexible and to respect cultural and political differences in subunits of a legally pluralist system when deciding whether “an alleged deviation from a transnational norm is tolerable” (Resnik, Chapter 11). Consensus and margins are “temporizing measures” having the potential to open up “the possibility of change and identify the relevance of law in other subunits when analyzing whether conformity is required” (Chapter 11). On the other hand, one should not underestimate the implications of the consensus method for power relations. The “European consensus” can prove to be a hidden, though not necessarily intended, judicial support for the political powers dominant in a majority of member states at the expense of the protection of human rights.48 The majority principle is a political mode of decision-making, and a court applying this method does not enhance the complexity of decision-making structures. Richard Pildes (Chapter 5) argues that the ECtHR’s inconsistent application of the consensus method leads to the “pattern of initial articulation of a strong conception of fundamental rights, only to be followed by a substantial retreat in the face of sharp political opposition within powerful countries.”

Political Context Matters Third, the authors hold the opinion that the question “How do they get away with it?” must be answered differently in different political contexts. Constitutional courts within and beyond nation-states “need not play an unvarying role in the constitutional order” (Tushnet, Chapter 13). The political context matters. It is inevitable that constitutional court judges are often policy makers, but they are not policy makers all the time (Lübbe-Wolff, Chapter 10). The context for successful judicial review differs between national and transnational constitutional courts, different historical phases within established constitutional democracies, and established and new constitutional democracies in transition. 48

A. Føllesdal, “Much Ado about Nothing? International Judicial Review of Human Rights in Well-Functioning Democracies,” in The Legitimacy of International Human Rights Regimes, p. 292. Cf. Lübbe-Wolff, dissenting in the OMT Case, BVerfG, Second Senate, Order of 14 January 2014, BVerfGE 134, 419, para. 9 argues regarding judicial restraint of a national constitutional court: “The recognition of margins of appreciation . . . will typically result in some kind of benediction, although reduced in scope, of the object of judicial review.”



 

The context of constitutional adjudication matters because “courts do not operate outside the society for which they say what the law is” (Grimm, Chapter 14). As constitutional courts can get out of touch with the people, the embeddedness of constitutional adjudication in a broader public discourse is relevant. Constitutional courts protect and at the same time depend upon an effectively pluralist civil society that criticizes their judgments and encourages self-reflection. Andrew Arato (Chapter 15) extends this argument to the idea of a “plurality of democracies” built upon different channels of representation including civil society, local and regional governments, legislatures and executives, and courts. It is his thesis that the resistance against populism requires mutual support of associations, initiatives of civil society, and courts founded on a plurality of actors. The attack of populists against constitutional courts is an attack against constitutions by which the people constituted and empowered itself as the source of self-governance. Democratic constitutionalism is based on the idea of a demos consisting of “the entirety of the citizens who form a community by the bonds of common laws” (Preuß, Chapter 16, cf. Arato, Chapter 15). In the process of globalization with open borders, segments of the population feel insecure and seek refuge against foreign people and foreign perspectives in the idea of an ethnic nation. The people as an ethnos does not need a self-constituting act by constitution-making but is united by pre-political characteristics. Ulrich K. Preuß recognizes the reason why constitutional courts are especially at risk once populists come to power in a “socio-political shift” from the acceptance of the people as a demos to growing parts of the citizenry claiming that only the people as an ethnos represent the “real people.” The constitution creating and regulating the self-governance of a heterogeneous citizenry is an obstacle for populists favoring the ethnic dimension of the citizenry. Populists do not believe that secular, modern constitutionalism is the right answer to the challenges of globalization. It follows that constitutional court judges protecting the constitution and belonging to the elites are declared enemies by populist governments (Chapter 16). At the same time, the efforts of populist governments to destroy constitutionalism show the central role of constitutional courts in protecting the conditions of democratic governance and its foundations in a pluralist society committed to dignity, equality, freedom, and the rule of law. This protection runs into the void once the space of constitutional democracy shrinks due to the emergence of “operational spaces,” for example the vulture funds that evade legal regulation (Sassen, Chapter 17).





Conclusion The tentative answers the authors give to Martin Shapiro’s question “How do they get away with it?” are related to the hypothesis that constitutional adjudication can be a resource for democratic governance, provided there is a difference between judicial and political decisionmaking. Legitimacy and effectiveness, achieved through differences of methodology, competence, representativeness, communication, and interaction, enable national and transnational constitutional courts to contribute to the “discursive level of public debates” and thereby to a more reasonable outcome of democratic politics.49 Without these differences, constitutional courts would be measurably less legitimate and less effective. “The sovereignty of the familiar impoverishes everyone.”50 This statement of Clifford Geertz could also be turned into the assumption: The productivity of difference makes everyone richer.51 Paul Klee’s painting Polyphonie has been chosen for the cover of this book. In Polyphonie, a basic system of squares in blue and green tones is overlaid with a second autonomous system in which dots of similar color are arranged in fields of different structure. Both orders permeate each other in a dynamic, polyphonic-sounding organism of color.52 49 50 51 52

Habermas, Facts and Norms, p. 304. C . Geertz, “The Uses of Diversity,” Michigan Quarterly Review 25(1986), 105–123 [119]. Landfried, “The Concept of Difference,” p. 18. H. Düchting, Paul Klee: Malerei und Musik (Munich, London, and New York: Prestel, 2001), pp. 73–74.

PART I Democratic Legitimacy of Judicial Power

1 Judicial Power and Democracy   .   

Introduction Every year new books and articles appear on democracy and constitutional judicial review. The stream is not going to stop because many people who like democracy also like judicial review, and try as many of them might, it is not possible to render the two compatible. Constitutional judicial review inevitably involves a small number of unelected men and women making public policy or blocking public policy made by the people or their elected representatives. Democracy means public policy made by the people or their representatives. By some word magic, rendering review and democracy compatible or at least friendly coresidents of the polity may be a worthy task for those who are trying to make particular polities work well. For those seeking a scientific understanding of politics, the question of democracy and review is an uninteresting one because it is so easily answered. The interesting question is: How do they get away with it? How do a few people without the purse or the sword make public policy pronouncements that people and powerful political institutions are willing to obey? The total number of successful judicial review polities is too small, and they present such a variety of political features that no single answer to the question is likely to emerge from straightforward comparative analysis seeking to reveal a common set of causes for the success of review in all the places where judges do get away with it. The answer that review works where the citizenry sees it as legitimate is too tautological to be satisfying. There is a tendency to state matters by saying that courts endowed – sometimes self-endowed – with the power of review get away with it by building up popular credit through doing things people like and then can occasionally draw on that credit by doing something they don’t like. It is not really clear, however, that politics is a kind of savings account. 

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 

Building Blocks of Successful Constitutional Judicial Review I shall attack the problem of how they get away with it by constructing several building blocks of success and arguing that each successful review court is constructed of some of them but not necessarily all of them and not all of them necessarily of the same ones. Each of these blocks is oversimple. Each is offered as an exploratory hypothesis to be tested comparatively against all the stories presented at this and other comparative projects. Each block contains a not clearly specified time dimension. Each assumes that a court has been doing something for some time. Finally, each block assumes that the court is part of a roughly democratic polity. This last element leads me to a brief aside. On the one hand, all successful constitutional judicial review may be seen as depending on democracy. Why should any authoritarian regime allow a small group of persons, not themselves, to make public policy decisions contrary to, or at least independent of, their preferences. In this sense a precondition of successful judicial review is democracy, and so any attempt to answer the question “Why successful review?” must begin with the question “How, where, when, and why democracy?” It is that big question that I seek to avoid here by simply assuming or only looking at review in more or less democracies. On the other hand, it is necessary to point out that judicial review, even relatively independent judicial review, may exist in some nondemocratic states. An authoritarian regime, anxious for foreign investment and some level of international recognition as legitimate, may stick both a guarantee of private property rights and judicial review by a relatively independent court into its constitution. It may then even allow its reviewing court to sometimes make public-policy decisions contrary to its wishes as an acceptable cost of attracting foreign investment. It can relatively easily control those costs by appointing the right sort of judges to the reviewing court. Perhaps Egypt and Singapore provide examples. I am not dealing here with authoritarian review, but I will be speaking in terms of costs and benefits. In the approach I am taking, judicial review is always a cost to democracy, that is it is public policy making by other than the demos, that is the people. Under what conditions, and to achieve what benefits, will the demos accept that cost? I am well aware that judicial review may appear, in some of its aspects at least, to be a benefit to, not a cost to, democracy. It may well be, for instance, that freedom of speech is essential to democracy. A constitutional court decision protecting freedom of speech from

   



censoring legislation may well be a long-term benefit to democracy even if, in the short term, it blocks the immediate will of the demos as expressed by its representatives. Here, however, to simplify, I deal only in short-term costs and benefits with every public-policy decision made by judicial review a cost to the demos or its representatives. You will no doubt have noticed that I have been blithely assuming the constitutional judicial review is conducted by courts. Even when, following the Kelsenian model, they are courts quite separated from other courts, or because of French circumlocution they bear another name, courts they are. (Of course, other kinds of bodies also may have the power to find proposed or enacted laws unconstitutional. In the United States, the president may do so by asserting constitutional grounds in veto messages or signing statements. I once suggested that Congress could establish constitutional committees on the model of the House Rules Committee, which would have the power to report to the floor for debate only those laws proposed by other committees that it considered constitutional.) Because constitutional courts are courts, they share the basic characteristics of all courts. I shall not belabor for you the whole of my arguments on what courts fundamentally are and do. Part of that argument is, however, that, for courts to succeed in getting their decisions accepted, they must be seen as deriving those decisions from preexisting legal rules. Because when preexisting rules exist, when they do so as statements – that is, usually as written texts composed by constitution writers or legislators or even by judges in earlier opinions – the instant court must interpret the language of the preexisting legal rule to apply it to the instant case. The interpretation of text always involves some element of discretion in choosing what meaning to attribute to that text. Thus, unavoidably, and often deliberately and with relish, courts make new law, that is new public policy, in the course of conducting their absolutely necessary task of interpreting the language of the preexisting legal rule that they pretend has decided the case before them. To perform their basic function of conflict resolution, courts must pretend to be applying preexisting legal rules. In reality they must interpret those rules. Interpretation involves choices among alternative, plausible, textual meanings. Such discretionary choices necessarily entail at least limited discretion to make law. Of course, the broader, vaguer, or more ambiguous the language of the preexisting legal text is, the greater the discretion of the instant court. By their nature, constitutions tend to be written in very general language.



 

Thus, courts applying preexisting constitutional texts to instant cases necessarily exercise relatively broad law-making discretion. Like all courts, constitutional courts deny this discretion to elicit obedience to their decisions. I’m sorry to bore you with the obvious, but later you will see that the institutional characteristics that constitutional courts share with other courts are central to some of my blocks. The first of these blocks is federalism. Again, remember that I am not arguing that any one of these building blocks necessarily will alone serve to construct successful constitutional review. In some instances, two or more such blocks, either simultaneously or present in succession, may build review. Federalisms, I will argue, are essentially free trade zones or military alliances. Judicial review is of little military import but is key to free trade zones. Many political, more or less, entities may join in a federal polity to create a free trade cartel. Each agrees to accept economic endeavors from other members without raising border barriers and on terms the same as those applied to domestic endearers, maintaining more or less uniform barriers to entry against nonmembers. In such a cartel, the ideal position for each member would be that it disobey the free trade rules, advantaging its own exports to other members and disadvantaging the entry of goods and services from other members. So free trade endeavors an inherent motivation on the part of each member to cheat. Thus, to maintain themselves, such cartels will seek out some device to identify and punish cheaters. By embodying the basic free trade rules in its constitution and providing for a constitutional court to enforce those rules by invalidating member-state actions in violation of them, the cartel provides such a device. Economic enterprises of any member state seeking to do business in others will act as spotters of cheating by other states by bringing litigation to the constitutional court. In such litigation, the court can strike down the complained of member-state cheating. The defection reined in, the cartel continues. What is central here is the “How do they get away with it?” question. Each litigation is a private economic endeavor versus a member state. Why, when one state loses in court, don’t the other states say, “There but for the grace of God go I,” and side with each other against the court? Obviously because it is in the interest of each state that the other states don’t cheat. Judicial review does not provide for the best outcome; I cheat, and the other states don’t. It does, however, provide for the second-best solution for all states, even the state that loses in court. For the second-best outcome for all states is that each state be forced by judicial review to follow the free trade rules. While collectively over time

   

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a mass of decisions against the states may amount to a massive cumulative decision in favor of the central government over all the states, at any moment a given decision will look like the court is protecting all the states against the defection by one. From this reasoning, however, a number of the weaknesses or at least problems of the federalism building block emerge. Federalism judicial review will work only if all members of the free trade cartel wish to continue. The court will be ignored by any of the member states who wish to leave it or see it dissolved. The situation of the Russian court illustrates the point. It was not initially successful at federalism review because a number of the new post-Soviet states cared little or nothing for the federation. (Paradoxically, its record is likely to be better in the future because as a nonindependent agent of an authoritarian regime, member states will obey its judgments for the same reasons they obey other instructions from Mr. Putin.) The very paragon of constitutional review success, the US Supreme Court, was, along with the rest of its central government, once unsuccessful in getting members to obey who were willing to end the federation. Another American point is somewhat more obscure but important in gauging the chance of success of review in various places in the world. Federalism review is very likely to work when bringing one errant state after another back into the fold, one case at a time. However, what if actions, not of a member state but of the central government, are challenged as threats to the continued autonomy of the member states. There appears to be something fundamentally unfair – and outside the basic logic of courts – in asking a court to decide a case between two parties, one of which it is a part. How can the US Supreme Court fairly decide a case that involves, on one side, a state interest and, on the other, an interest of the US government of which the Supreme Court is a part? There indeed have been sporadic rumblings about the problem in the United States. They have been quieted in part by invocations of the independence of the judiciary and in part by separation-of-powers visions. The US Supreme Court is not really a part of the US government because as a court it is independent of the “political” branches. Even if, in some sense, it is a part of the US government, it is an independent branch of that government, wholly neutral as between other branches and the states. Indeed, most cases brought to the Supreme Court that pit state interests versus national ones do involve states’ or their surrogates’ challenge to Congress–President, that is to federal statutes, not to the Supreme Court.

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 

Federalisms may begin as mere free trade zones, but almost inevitably they will over time become centralized regulatory regimes. The constitutional free trade provisions initially will be used by the constitutional court to strike down open and obvious state barriers to interstate trade such as state tariffs on outside products or outright prohibitions. Next, however, through litigation pressure the central constitutional court will turn to a state health, safety, environmental, labor, and other regulations that, intentionally or unintentionally, serve as barriers to imports or advantage local production or services. If French law requires two inches of insulation in refrigerator doors and Belgian only one inch, no Belgian refrigerators can be sold in France and French refrigerators will be disadvantaged in price completion with Belgium ones because of their high prices to compensate for the higher insulation. The obvious response to this problem is uniform regulation at the federal rather than state level. The push for such regulation will be even greater because large enterprises, which would prefer no regulation at all, will prefer single, national uniform regulations to multiple, conflicting state ones. It might then be anticipated that anti-regulatory forces would challenge federal regulations on every ground they could think of including invasion of reserved state prerogatives. That now goes on in the United States. In the long term, however, the US Supreme Court has gotten away with approving national regulations against federalism-based attacks because the movement from local economies to a national one has been so strong, and so driven by overwhelming technological and economic forces, that the Court has been moving with the compelling forces of history on its side. Indeed it has done little more than tag along. The US Supreme Court and the European Court of Justice are probably the most successful judicial review courts in the world. Both were virtually necessitated by federalism. For both, their obvious benefits in policing free trade have appeared to far outweigh any costs to democracy. Both have ridden with, and been forces behind, the transition from only free trade to free trade plus regulation regimes in their respective federalism. The German, Canadian, and Swiss constitutional courts also show a conjunction of successful judicial review with federalism. As I think, so does the Australian court and perhaps arguably the Indian court. And with all these names we have come close to running the whole list of successful judicial review courts. Federalism would seem to be a very probable building block of successful judicial review, indeed perhaps a necessary if not sufficient block. (We might add the Italian court to the

   



list given that it appears to have been created in part at least to defend the autonomy of the northern provinces.) The next possible building block to be examined is separation of powers in the national government. The United States is a good, but misleading, example. The argument is simple enough. If you, by constitution, divide the power to govern between two separate branches, the need arises to police the boundaries between the two. Courts are a longstanding, well-understood, triadic device for resolving disputes between two contracting parties, in this instance Congress and the president. As with a dispute between two contracting parties over their rights and obligations under a contract, a court is the very model of dispute resolution. Under the constitutional contract, a constitutional court is the obvious device for resolving disputes between the two interested parties: Congress and the president. Simple, compelling, but quite untrue. For a small set of nonelected judges, with neither the purse nor the sword to step into a fight between the two really powerful, elected governing bodies (both with staff resources, which the judges do not have, and the responsibility to maintain the military, economic, and political safety of the country, which the judges do not have) would be utterly foolish. In reality, while the separation of powers clauses and minor quibbles about them take up a great deal of time in American constitutional law classes, the US Supreme Court has never really intervened in a major clash between Congress and the president. Before World War II, few working democracies had presidential systems. Most nations under the eyes of most scholars employed parliamentary systems that, in theory at least, concentrated rather than divided governing power. With no boundary disputes to occur between government divisions, there was no need of a policeman and dispute resolver. Most parliamentary states did not have judicial review. Given the misunderstood American example plus the European situation, it might well have appeared that separation of powers was a necessary and perhaps sufficient building block of judicial review. But that was because it was not clear that the US Supreme Court didn’t really engage in successful judicial review of separation of powers. Then World War II and a certain situation in France changed things. The experience of Hitler, Stalin, and Mussolini led to a taste for divided government. What you fear, divide up. Then the French, who believed in democracy, decided they needed De Gaulle no matter what and wrote a



 

new constitution to accommodate him in which both legislative and executive powers were divided between, or perhaps shared by, a parliament-cabinet-prime minister, on the one hand, and a president, on the other: a quasi- or semipresidential system. So now that separation or division of powers has come in, and following the simple – oversimple – logic outlined previously, there comes a court to resolve boundary disputes between the two big players. Because of a French cultural fear of courts, or perhaps their clear knowledge that courts are undemocratic, or perhaps just to signal that this court had more to do with politics than most people think courts should, the French called it a council, not a court. Some would now say that it is not a court or a council but a third chamber of the French legislature. Whether it is an example of a supremely successful constitutional review court, has stepped beyond review straight into legislation, or is sui generis, I leave to you. Whatever has happened in France, countries around the world – many in transition from authoritarian to something close to democratic or full demographic regimes – have adopted semipresidential constitutions, most of them providing for judicial review. Most of these nations have new constitutions: Some are moving away from democracy, some toward it, and some are stuck in between. The details of the “semi” or “quasi” differ a great deal from state to state. We need large comparative studies of quasipresidential systems. I do not have enough to conclude whether in them the division of central power is a building block of successful judicial review. I doubt it because of the American experience that these kinds of central government disputes are just too hot for a court to handle. My next building block is judicial independence. One might well argue that independence is not a building block of successful constitutional judicial review but its sine qua non. Review by a nonindependent court is not review at all but only a disguised mode of rule by whoever is ruling. Judicial independence may be a necessary condition of successful review, but it is a reflexive condition. Independence may be necessary to review, but one or more episodes of successful review may lead to either the reinforcement or the destruction of that independence. When a constitutional court institutes or blocks a public-policy initiative, it may win the battle but lose the war. Its policy success may let loose forces that destroy its independence and thus its exercise of future successful review. This is where all the talk of judicial prudence and safety “zones” starts. The history of the US Supreme Court offers numerous examples of both positive and negative reflexivity. Best known is the narrow escape

   



the Court experienced when President Roosevelt attempted his “court packing” proposal. Here a history of successful review had built up sufficient public support over time to protect the Court’s independence at a particular crisis moment. What tends to be forgotten or never known is that through most of its history the court acted to assist the most powerful political forces in its jurisdiction, those building a national, capitalist economy. The independence of the US Supreme Court has been somewhat misleading. Here a court pulls itself up by its own bootstraps, so to speak, inventing constitutional judicial review powers for itself and then successfully exercising those powers forever more. All this leads directly to considering another rather complex, perhaps problematic, building block. Particularly in former segments of the British empire such as South Africa and India, it may well be that a quite artificially injected but long-standing allegiance to common law traditions is a major factor in achieving successful judicial review. This is all the more mysterious because, of course, that tradition does not itself contain a constitutional judicial review practice or indeed even a written constitution. What seems to occur is a melding of the “home” country’s tradition of judicial independence and the US tradition of judicial review. Because of the confidence inspired by British wigs and gowns, the new countries’ judges are trusted to act like John Marshall, a rebel against British rule. Less poetically, and less tied to former British colonial status, we may be dealing here with the legal profession as a building block of successful review. Training for the bar indoctrinates future lawyers with the values of “the rule of law” and the essential role of judicial independence in such rule. The crassest economic self-interest impels the legal profession of any country to champion the powers of the courts of whom it is the paid gatekeeper. At one end, we may see a genuine dedication to the values of the rule of law insured by judicial independence and, at the other, the understanding that constitutional judicial review means more legal business at high fees and more general prestige for the profession. Pakistan and India provide interesting examples of the relationship between an organized legal profession and a potential for successful constitutional judicial review combined with the inheritance of a British rule-of-law tradition. Now, finally, I come to the building block that undoubtedly is of most concern to the majority of us: individual or human or constitutional rights. Starting with the US constitutions, most constitutions contain a

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bill of rights. When they don’t, or even when there is no written constitution, courts tend to invent bills of rights and endow them with something like constitutional status. The French Constitutional Council simply inserted a bill of rights into the current French constitution. The European Court of Justice worked away at building up a rights jurisdiction for itself until the Union as a whole finally stuck a charter of rights into its treaty-constitution. The European Convention on Human Rights created a sort of judicially enforced constitutional bill of rights while the European Union was getting its rights act together. So European judicial review to protect, foster, or invent rights is now a complex but enthusiastic endeavor. The Israeli high court manages somehow to deal in individual, constitutional rights even though Israel has not managed to write a constitution. The English courts manage to squeeze out something like judicially protected rights using notions of “natural justice” and the like. Not a subject for this project, perhaps, but rights very like constitutional rights are enforced by administrative law rather than, and sometimes in addition to, constitutional rights by courts, some of which enjoy both constitutional and administrative law jurisdiction and some only administrative law jurisdiction. A great deal of rights protection in many countries is done through administrative law judicial review. Of course, in some countries administrative law kinds of rights are incorporated directly into the constitution as in the United States due a process clause and the EU “giving reasons” requirement. And, in many courts, constitutional and statutory rights and, therefore, constitutional and statutory or administrative review are inextricably intermingled as in the US civil rights and in antidiscrimination and voting rights statutes and their enforcement. It may be that, in many parts of the world, administrative review serves as an effective surrogate for constitutional review, although that is the subject for another conference. Rights are not a necessary condition for review. Following Hans Kelsen and Learned Hand, one can visualize a court that does only constitutional boundary policing. The European Court of Justice (ECJ) could have been such a court had it wished to be, doing only federalism review and review of the boundaries between the Council and the Commission, although I have argued that a constitutional court that devoted itself entirely to the policing of the boundaries between the parts of the central government would find itself with nothing to do or in over its head. The movement of the ECJ into individual rights suggests that perhaps I am wrong and any court exercising boundary policing review will also be drawn into rights

   



review. But the ECJ’s rights jurisdiction arose out of its federalism boundary not out of its Council–Commission doctrines. What is clear is that the late twentieth century experienced a kind of religious awakening about rights. Just as every new country had to have a flag, it had to have a constitution and that constitution had to have a bill of rights. As the frequently used term human rights suggests, there was a natural law basis to the rights movement. In natural law, rights are all benefits and no costs. In the real world, however, rights are actually the assignment of preferences for governmental protection or support assigned to particular social, economic, or political interests. They assign benefits to those interests and so, necessarily, costs to others because government protections and supports are in limited supply. If some get more, others get less. Moreover, rights are sometimes in conflict with one another, creating an open and often dramatic “more for some less for others” situation. Aggravating the problem was the tendency over time for each and every interest in society learning to dress its naked preferences in the rhetoric of rights, hoping to get on the band wagon and succeeding enough to teach itself and others to keep trying the rights palaver. One of the most consequential elements in this movement was a new “positive” rights talk. Traditionally, rights, particularly constitutional rights, had been seen as largely negative, as prohibitions of government doing bad things to particular individuals. That negative view of rights eventually was extended from individual to whole groups who were to be protected from government mistreatment. Next came further extension to not only governments but also nongovernments being prohibited from treading on rights and to a positive obligation of government to enforce those prohibitions on private parties. Then, came positive rights, claims that government was required to provide goods and services. Coupled with this great rights movement was an age-old association of rights with courts. If rights were to be expanded, then so must be the powers of courts because courts are a proven instrument for effectuating rights. Thus the globalization of constitutional judicial review is a natural outcome of the global human rights awakening. So the story ought to be a simple one. Everyone loves rights. Everyone sees courts as a good mode of achieving rights. Everyone loves constitutional judicial review. The story is only that simple, however, if we cling to the natural law, no cost, view of rights. Indeed, courts stick to that natural law view whenever they can. Who would not love any institution that did nothing but hand out goodies. Once courts get to positive rights,

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 

however, the natural law, all benefits, no costs story becomes impossible because everyone knows that providing positive government goods and services at the very least costs money. And as every interest clothes itself in rights, it becomes unavoidably clear that where interests are at odds, one rights winner means another rights loser. Today the central language of all constitutional courts everywhere in rights cases is that of “balancing” and proportionality. All of us believe in rights but not in absolute rights for some even at an unlimited cost to others. Rights, like everything else, are matters of who get how much benefits and who bears how much costs. There’s the rub or rather multiple rubs. Once courts not only do but also have to talk about balancing interests, that is, assigning costs and benefits, they have admitted they exercise discretion rather than merely applying preexisting legal rules. So they lose their judicial kudos. Politics is about “who gets what” or the “authoritative allocation of values.” Rights courts now must admit that they authoritatively decide who gets what, that they are political. And in a democracy, it is the elected representatives of the people, the legislatures, that are supposed to balance interests. So a court that admits it is balancing admits it is out of its assigned territory in a democracy. Here is “How do they get away with it?” with a vengeance. Courts that do constitutional rights review simply shouldn’t be able to get away with it. But some of them do, sometimes, thus the endless stream of denunciations and more often excuses that I began this talk by noting. Elsewhere I have written about the “junkyard dog” theory of judicial review. Others speak more politely of zones of tolerance, prudence, and the like. The junkyard dog is a fierce animal let loose to protect what its owner loves, his junk. By giving the dog a home in his yard, the owner assures himself that what he wants will be protected, but every once in a while he will be bitten by the dog. Otherwise he gets rid of it. The demos know or the authoritarian ruler knows that a constitutional rights judicial review court will bite the hand that feeds it sometimes, will thwart the democratic or authoritarian rule sometimes. It will keep on feeding the dog if the bites are worth it, if the court gives the democratic or authoritarian ruler a sufficient level of the security it wants. The authoritarian ruler may allow independent judicial rights review if the level of unwanted judicial protection of his subjects does not get so high as to outweigh whatever international legitimacy, attraction of foreign investment, or strategic support it yields him. The demos will

   



support review as long as its immediate thwartings of majority will not outweigh the long-term rights benefits that the majority also values. Another well-known version of this latter point is the noted “insurance” theory of constitutional building. Where a democracy is being founded or being maintained, the political party in control at the moment fears that it may lose sometime in the future. Thus it will foster constitutional provisions that will assure that if it loses the next election it will still get a fair chance of winning the one after that. Rights review can be part of that insurance policy that every part of the demos will support as some assurance that it will remain politically viable even if it is not enjoying the majority of the moment. All this comes down to the not at all satisfactory answer to the “How do they get away with it?” question in the rights review area that they can get away with as much as they can get away with. Constitutional courts that try to do too much will lose their independence, but how much is too much varies from day to day and place to place. The junkyard dog is never sure that he will still be roaming the yard tomorrow. Two other brief notes are in order here. It may be that rights are so integral to law and courts, at least in the Western tradition, that even if a constitutional court is limited by its constitution to boundary review à la Kelsen and Hand, it will inevitably stray into rights review. Or rights review may be so associated in the public mind with courts that constitutional courts textually not authorized to do rights review will be pressed into doing so. (The E is worth study in this regard.) Sometimes, rights bites may be tolerated because of the value of the federal boundary policing the constitutional court does. Here there may be a crucial distinction between separate constitutional review courts and general highest appellate courts that enjoy constitutional along with criminal and civil law jurisdiction. General highest courts may be able to get away with more rights bites than specialized courts because those opposed to their rights decisions see sufficient advantage in maintaining the independence and prestige of the whole regular court system that they are disinclined to attack its highest component over rights matters. Here again the legal profession is important. It will tend to rally to the defense of the highest regular court even if it hates some of its constitutional decisions because it has such a strong interest in defending the courts as a whole. Put most bluntly, a separate court can be abolished or its independence undermined without excessively damaging the whole regular court



 

system so it is a tempting target that needs to walk carefully. A high court that is the highest not only on constitutional questions but also for appeals in all matters of law can be fairly adventurous in its rights decisions because attacking its constitutional decisions will undermine its general prestige. Such an undermining might involve a high cost to all the interests in the society advantaged by the existence of a stable, independent judicial system effectively handling very useful, if routine, conflict-resolution chores. The other note involves “leadership.” If constitutional rights review courts can get away with what they can get away with, then having someone on that court who is good at figuring out what it can get away with and good at convincing her or his fellow justices not to try to do more than that can be an important building block in establishing and maintaining successful rights review.

Conclusion Although some authoritarian regimes may maintain constitutional judicial review, our basic concern is why successful judicial review occurs in some democracies and not others. Because judicial review entails public policy making by a small group of nonelected persons, it is incompatible with democracy. So our question becomes: How can review flourish in democracies? I have offered a number of building blocks for successful review. I believe successful review will always be built from one or more of them, but that none is necessary except independence and none is sufficient. Of these I view federalisms in which all members wish to remain the surest building block and constitutions of divided or separated central government powers an illusory one. If someone can show me a polity in which a reviewing court successfully resolves central government boundary disputes over time, I shall cheerfully admit my error. I view rule-oflaw traditions and strong legal professions as essentially secondary building blocks. Independence is a sine qua non, and rights have been the most prominent building block in recent years. Indeed it may be that rights are so central to any and all courts that constitutional courts established solely to do boundary review will end up doing rights review. Both independence and rights review, however, lead right back to the basic contradiction between review and democracy and leave us with the quite unsatisfactory answer that reviewing judges can get away with what they get away with – that a fundamental building block of review is the

   



capacity of reviewing judges to bite sometimes but not so often that the junkyard dog will be sent away. Leadership, a capacity on the part of one or more of the judges to marshal the court to act prudently, may, therefore, be an important building block. Now, finally, my grand confession. If we view successful review in authoritarian regimes as an occasional, almost random, and typically short-lived mutation, then we directly encounter democracy as the grand building block of review even though the two are at odds. Here, I have avoided the grand question of why some polities are democratic and others are not and addressed only the secondary question of why, if a polity is democratic, review might flourish there. The crucial problem of successful judicial review is, of course, judicial independence. Aside from some special authoritarian situations noted earlier, the crucial problem of judicial independence is democracy, that is a political system in which there are reasonable expectations of a relatively long-term political system of competitive elections, with participation by two parties, or multiple parties capable of forming winning coalitions, that expect to sometimes win and sometimes lose future elections. Thus, the inquiry about successful judicial review ultimately becomes an inquiry about successful democracy, a daunting inquiry indeed. Even if we could resolve that inquiry, it would still be true that constitutional judicial review would survive, if initiated, only if the constitutional court acted with sufficient prudence or strategic sense not to offend majoritarianism too deeply. I have no idea how we could specify when judges would or would not act with that level of political skill.

2 Judicial Politics versus Ordinary Politics Is the Constitutional Judge Caught in the Middle?

 

Introduction Democracies are built upon the majority principle, but at the same time no constitutional democracy can be purely majoritarian. Unconstrained democratic majorities can trample on individual rights, dignity, and interests as well on those of ethnic, religious, and cultural minorities within the polity. The very integrity of democracy thus requires some anti-majoritarian institutional mechanism to check against majoritarian overreach and excesses, and constitutional review by independent judges has been widely relied upon for this purpose. The role of protection for constitutional judges is fairly uncontroversial in many types of cases, such as free speech protection, unpopular nonextremist political or ideological views, or blatant discrimination based on sex, race, or religion. In more recent times, however, there has been a great expansion of judicial intervention leading to a vigorous debate about the “judicialization” of politics and criticisms of the seemingly ever-more-encompassing settling of policy issues by unelected judges.1 Moreover, judges’ recourse to expansive legal interpretation for purposes of securing a dominant role in the conduct of politics seems all the more objectionable where it appears that they invoke the constitution in furtherance of their own political agenda. Indeed, whereas judicial overreaches in ordinary legislative settings may be overridden by ordinary majoritarian means through further legislation, judicial excursions into the realm of politics cloaked in the mantle of the Constitution typically depend in a vast 1

See R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004); Jeremy Waldron, “The Core of the Case against Judicial Review,” Yale Law Journal 115 (2006), 1346–1406 [1349–1353].

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    



number of constitutional democracies2 on cumbersome supermajoritarian processes to be nullified. Furthermore, the resolution of a great majority of the most important political questions confronting a polity by courts may not simply stem from judicial self-aggrandizement but also from the design of political and economic elites bent on insulating “substantive policy making from the vicissitudes of democratic politics.”3 The constitutionalization of politics, particularly in the hand of judges who for all practical purposes have the last word, is certainly worrisome, particularly in countries, like the United States, where virtually all major divisive political issues typically end up before the courts. Before condemning that practice, however, it is necessary to consider whether there may be extrinsic or intrinsic benefits in leaving authoritative constitutional review in the hands of judges. From an extrinsic standpoint, judicial review may not necessarily be more anti-majoritarian than the work product of a legislature beholden to lobbyists and special interests or an executive branch effectively dependent on a handful of businesses and social elites.4 From an intrinsic perspective, however, much depends on whether a cogent and systematic distinction can be drawn between the exercise of the judicial function and ordinary politics, as customarily pursued through the electoral process and through the typical functioning of the legislative and the executive and administrative branches of government. The judicial function is clearly not apolitical in at least two important senses. First, constitutional adjudication most often has political consequences and in some cases, such as abortion in the United

2

3

4

Canada stands as a notorious exception in this respect as its constitution allows for parliamentary override of specific provisions of the Charter of Rights and Freedoms and, by extension, of judicial interpretations of those provisions. See Canada Constitution Act, 1982, Sec. 33. The use of this override procedure, however, has been rather minimal to date. R. Hirschl, “The Judicialization of Mega-Politics and the Rise of Political Courts,” Annual Review of Political Science 11 (2008), 93–118 [108]. Cf. N. Confessore, S. Cohen, and K. Yourish, “Just 158 Families Have Provided Nearly Half of the Early Money for Efforts to Capture the White House,” New York Times, October 15, 2015 (reporting that a very small number of mainly white US families are having a decisive influence on the selection of candidates, both Democrat and Republican, for US presidential election) with B. Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (New York: Farrar, Straus and Giroux, 2009) (indicating that US Supreme Court is often more attuned to public opinion within the country than the other two branches of the US federal government).



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States, important and divisive ones.5 Second, the judicial function is embedded in its own politics, which is defined in terms of diverse and at times conflicting judicial philosophies and approaches to constitutional adjudication. Some judges are originalists, others adaptionists, and yet others embrace a conception of the Constitution as a “living tree.”6 Consistent with these differences, moreover, some judges are committed to restrictive interpretations of fundamental rights and others to expansive ones. In broad terms, one can therefore distinguish between judicial politics – that is, politics pertaining to the judicial function – and ordinary politics – that is, majoritarian politics in its electoral and institutional forms, including the nonjudicial political repercussions and implications of judicial decisions within the polity. Assessing the import and implications of the distinction between judicial and ordinary politics is particularly urgent in an era of extensive constitutionalization of politics that seems bound to go hand in hand with increasing politicization of the Constitution. Indeed, a constitution restricted to structural provisions and to protection of a small number of formal rights seems less likely to impinge on the realm of ordinary politics than a constitution replete with substantive civil and political as well as social and economic rights. Thus, for example, it seems plain that there would be greater politicization of the constitution in a country where the constitution enshrines public education and public housing rights as contrasted with a country that left these matters to the vicissitudes of ordinary majoritarian politics. With that in mind, it is important to determine whether judicial politics are ultimately sufficiently distinguishable from ordinary politics as to allow for the maintenance of salutary checks and balances against potential excesses stemming from the latter. More particularly, it is crucial to determine whether judicial politics is inherently distinguishable from ordinary politics to allow for a principled division of labor among the two and to permit subjection of judicial decisions to criteria of legitimation that are independent from those applicable to majoritarian ordinary politics. Furthermore,

5

6

See L. Tribe, Abortion: The Clash of Absolutes, 2nd ed. (New York: Norton & Company, 1992). See, e.g., Reference re Same Sex Marriage [2004] 3 S.C.R. 698, para. 22: “Canada is a pluralistic society . . . The ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree.”

    

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assuming that such independent criteria could be successfully deployed, would the effects of judicial politics on ordinary politics be such that, for practical purposes, the ordinary politics implications of constitutional judicial decisions would far outweigh their import within the confines of judicial politics? Suppose, for example, that judges who support and oppose the constitutionalization of abortion can account in a principled way for their judicial politics – originalism for some, living tree constitutionalism and reliance on judicial precedents for others – but that the polity remains nonetheless vehemently politically divided over the issue. Would focus on judicial politics in that case not emerge as merely technical and as having a rather trivial effect on assessing the legitimacy of abortion policy in a constitutional democracy? The main thesis I defend in this chapter is that it is possible to establish a principled distinction between judicial and ordinary politics, and that the two realms are distinct, each allowing for application of its own kind of criteria of legitimation. However, although judicial politics can be cogently differentiated from ordinary politics, their respective domains overlap, which raises many intrinsic questions. Is it better to leave abortion, public education, or healthcare to judicial or to ordinary politics? To some extent, the answer depends on whether it is preferable to entrust the particular subject being considered to majoritarian or countermajoritarian decision-making processes. But beyond that, it is also important to determine whether the subject in question is more likely to be better and more legitimately dealt with within the realm of judicial politics or within that of ordinary politics. With this in mind, “Law as a ‘Language Game’ and the Dialectic between Constitutionalization of Politics and Politicization of the Constitution” briefly expands on the contrast between judicial and ordinary politics and on the connection between the constitutionalization of politics and the politicization of the Constitution. “The Constitutionalization of Politics in Judicial Decisions” concentrates on the constitutionalization of politics as it emerges in different types of cases, ranging from those least likely to provoke (ordinary) political controversy to those virtually inevitably slated to exacerbate such controversy while keeping focus on how different kinds of cases may be easier or more difficult to resolve within the confines of judicial politics. Finally, “Legitimating the Constitutionalization of Politics within the Proper Scope of Judicial Politics” examines how the theoretical insights and case studies may be harmonized to provide a critical assessment of the potential and limitations of the constitutionalization of politics when left in the hand of unelected judges.

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Law as a “Language Game” and the Dialectic between Constitutionalization of Politics and Politicization of the Constitution Law, in general, and constitutional law, in particular, are not ultimately reducible to any other practice, such as politics or philosophy.7 Moreover, law carves out a domain for itself, not necessarily because of the material it incorporates, but because of the way it deals with such material. Thus, for example, law and philosophy may deal with some of the same concepts, such as justice and equality, but discussion of these in a philosophy seminar is bound to differ from its equivalent in a court of law. The legal advocate and the judge cannot merely engage in a philosophical debate. Indeed, to the extent that legal practitioners can make pertinent reference to the latter, they must do so considering existing legal doctrine, the relevant constitutional provisions, and authoritative judicial precedent (at least in common law jurisdictions). In other words, those operating within the practice of law must “translate” material they wish to draw from other practices into the language of law.8 Thus, whereas a philosophical debate on the relationship between affirmative action and equality need not be constrained by national boundaries, the Canadian constitutional equality provision specifically recognizes the legitimacy of affirmative action while its US counterpart is silent on the matter.9 In short, judges and legal practitioners must operate within the internal perspective circumscribed by (constitutional) law as a practice with its own “language game,” to borrow Wittgenstein’s terminology.10 One need not embrace conceptions of law that cast law in key respects as completely “untranslatable” – such as Luhmann’s autopoietic one that regards law as a self-contained system that is normatively closed,11 or 7

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The discussion that follows is mainly drawn from M. Rosenfeld, Just Interpretations: Law between Ethics and Politics (Berkeley: University of California Press, 1998), pp. 42–45. For an argument that philosophical and constitutional equality cannot be mutually reducible although some concepts of philosophical equality may be translated for incorporation into the language of constitutional equality and constitutional equality doctrine may be critically assessed from the standpoint of philosophical conceptions of equality, see M. Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry (New Haven, CT: Yale University Press, 1991), pp. 136–144. Cf. Section 15(2) of the 1982 Canadian Charter of Rights to the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. See L. Wittgenstein, Philosophical Investigations, 3rd ed., trans. G. E. M. Anscombe (London: Macmillan Publishers, 1968), pp. 2, 7. See N. Luhmann, Essays on Self-Reference (New York: Columbia University Press, 1990), p. 3 and “Closure and Openness: On Reality in the World of Law,” in G. Teubner (ed.),

    

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Kelsen’s “pure theory of law”12 to maintain that the barrier between law and other practices is thick enough to generate significant obstacles to, and gaps in, translation. A particular telling example, in this connection, is the transformation undergone by Richard Posner, the leading US proponent of “law and economics,” due to his experience after he left the academy for a US federal appellate judgeship.13 Based on the assumption that human beings behave rationally,14 as Posner envisages it, economics – in its two dimensions as a positive science that purports to explain the behavior of instrumentally rational self-interested human actors and as a prescriptive science oriented toward wealth maximization – furnishes scientifically testable criteria for the evaluation and interpretation of laws. Although Posner never abandons this ideal,15 it is particularly telling that his practice as a judge leads him to conclude that some legal problems, such as whether constitutional privacy rights should be interpreted to cover a woman’s right to an abortion, cannot be conceived cogently in terms of wealth maximization.16 Thus, even the freest of all market societies could not function without a separable legal regime. Moreover, because it is not reducible to another practice, law must circumscribe some internal space for itself within which it can deploy its own language game. It also follows from this that law as a practice within its own space cannot be fully translatable into another practice or language game.

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14 15 16

Autopoietic Law: A New Approach to Law and Society (Berlin: De Gruyter, 1987), pp. 335–348. In Kelsen’s words, “The Pure Theory of Law undertakes to delimit the cognition of law against [psychology, sociology, ethics, and political theory], not because it ignores or denies the connection, but because it wishes to avoid the . . . mixture of methodologically different disciplines . . . which obscures the essence of the science of law and obliterates the limits imposed upon it by the nature of its subject matter.” H. Kelsen, The Pure Theory of Law, 2nd ed., ed. and trans. M. Knight (Berkeley: University of California Press, 1967), p. 1. After becoming a practicing judge, Richard Posner has acknowledged the limits of law and economics and subsumed them under his pragmatism in contrast to his earlier position that boiled down to the prescription that law, in general, and judicial interpretation of law, in particular, ought to aim at wealth maximization. Cf. his Economic Analysis of Law (New York: Little, Brown & Company, 1977) to his Problems of Jurisprudence (Cambridge, MA: Harvard University Press, 1990) and Overcoming Law (Cambridge, MA: Harvard University Press, 1995). See Posner, Problems of Jurisprudence, p. 367. Ibid., p. 382. See Posner, Overcoming Law, p. 22.



 

Pursuit of the polity’s common good, policy making, managing clashes of interests within the polity, and making law or a constitution all involve ordinary politics, whether it be highly principled and inclusive or purely strategic and bent on vindicating some narrow interests to the exclusion of others. Once a law or a constitution is enacted, however, its interpretation and application triggers a different kind of politics, namely judicial politics. For example, it is a matter of ordinary politics whether a legislature ought to enact a law making industry liable for damages it causes due to the environmental pollution it generates. After such law is enacted, though, and judges are charged to interpret it, the ordinary politics delimited by its proponents and opponents prior to enactment has become to a significant degree frozen, giving way to handling by judges within the practice and language game of law. One could envisage the interpretive role as purely technical and hence as involving no politics whatsoever, but that option seems very limited in the context of constitutional interpretation in which divisions among proponents of competing judicial philosophies remain sharp and enduring. As already mentioned, judicial politics typically has ordinary politics repercussions just as constitutionalization of a right to abortion seems bound to have economic implications. But also, just as abortion rights are impervious to economic rationalization or reduction, so too judicial politics are not reducible to ordinary politics.17 One prime example of judicial politics deploying within the confines of the language game of law is provided by the advent and evolution of the proportionality standard in constitutional adjudication. As a concept, proportionality already had emerged in Aristotle’s philosophy18 and in nineteenth-century German administrative law.19 Moreover, proportionality has become dominant in modern constitutional law virtually everywhere besides the United States as it reflects a vision of constitutional ordering centered on protection of fundamental rights in the face of conflicts among competing interests. The foundations of this vision are certainly philosophical, moral, and political, but its legal deployment remains distinct. This becomes manifest in judges’ and legal scholars’ 17

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19

See D. M. Beatty, The Ultimate Rule of Law (Oxford: Oxford University Press, 2004), ch. 1. See Aristotle, Nichomachean Ethics, Book V. ed., rev., and trans. J. A. K. Thomson (London: Penguin Books, 2004), pp. 118–120. See B. Schlink, “Proportionality I,” in M. Rosenfeld and A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), pp. 718–737 [728].

    



debates about proportionality;20 in the differences in the use of proportionality in various constitutional democracies;21 and even in the legal consequences deriving from the lack of use of the proportionality standard in US constitutional law.22 Even if judicial politics remain sui generis, it seems appropriate in some contexts to reach beyond the language game of law so long as relevant materials found in other language games are properly adapted and reprocessed so as to “fit” within the language game of law. To stick to the nexus between economics and law, in the case of judicial interpretation of an anti-monopoly law, it would make obvious sense to combine an economic and a legal analysis. Thus, if an economic inquiry into the consequences of judicial interpretations of a given anti-monopoly law has led to greater economic concentration contrary to the purported intent of the legislator, that would be most helpful and would facilitate a change in judicial interpretation – assuming that were feasible with the constraints inherent within the language game of law – or a legislative amendment or repeal of the law in question. In contrast, whereas a study of the economic consequences of enforcement of a constitutional right to abortion might well be a valuable addition to the economic literature, it would be difficult to imagine it having any significant effect on constitutional scholarship relating to fundamental rights. The line between judicial philosophy and ordinary politics may often be difficult to draw, but it remains conceptually sound. For example, a judge may have a restrictive view of fundamental rights and of national as opposed to local powers, but that would equally commit her to constitutionally upholding politically conservative individual subnational policies, such as bans on abortion, as well as politically progressive ones, such as the legalization of assisted suicide. Accordingly, so long as the constitutional judge remains consistently within the strictures of the language game of law, presumably she will be able to purge her

20

21

22

Cf. e.g., Schlink, “Proportionality I,” pp. 718–737 to A. Barak, “Proportionality II,” in Rosenfeld and Sajó, The Oxford Handbook of Comparative Constitutional Law, pp. 738–755. (Schlink was a constitutional judge in Germany while Barak was the Chief Justice of the Supreme Court of Israel.) See D. Grimm, “Proportionality in Canadian and German Constitutional Jurisprudence,” University of Toronto Law Journal 57 (2007), 383–397. See, e.g., District of Columbia v. Heller, 554 US 570, 687–688 (2008) (Breyer, J. dissenting) (arguing that existing doctrine based on contrast between “rational-basis review” and “strict scrutiny” review is inadequate, and that proportionality analysis should be used instead).



 

constitutional interpretations from the hold of ordinary politics or to reprocess ordinary politics materials so as to make them amenable to absorption within the bounds of judicial politics. The constitutionalization of politics goes hand in hand, by and large, with transferring the resolution of political issues from the realm of ordinary politics to that of judicial politics. Take, for instance, the question of free public education that is, quintessentially, a political issue. If this issue becomes constitutionalized by being directly addressed in the Constitution, then its resolution becomes a matter of judicial politics and, otherwise, if it were a matter of ordinary politics, then it would be left to the majoritarian processes used to settle infra-constitutional political issues. Leaving aside extrinsic factors, such as that the judiciary may be more responsive to public opinion than the political branches of government, there are certain matters that seem inherently better suited for antimajoritarian as opposed to majoritarian handling. Likewise, several other matters seem inherently well suited for ordinary politics and ill-suited for judge-led constitutionalization. The constitutionalization of politics, understood as involving a shift from ordinary to judicial politics, can have beneficial stabilizing effects so long as it is not too extensive. Thus, so long as there is a broad consensus, such as regarding the need for constitutional protection for unpopular political views, deference to constitutional judges may hold despite vigorous disagreements over judicial philosophies. However, in the context of extensive constitutionalization of politics, such as in the case of broad protection of social and economic rights or pervasive intervention into private transactions as exemplified by the doctrine of Drittwirkung under German constitutional law,23 there is a great danger of (over)politicization of the Constitution.24 Indeed, if a large number of matters of social policy over which the polity is sharply divided are entrusted to constitutional judges, they will increasingly give the impression of usurping the realm of ordinary politics while seeking to obscure this overreach by articulating their decisions in the language of judicial politics. The greater the constitutionalization of politics becomes, the more likely it will be that the Constitution will become politicized. As we shall 23

24

See D. P. Kommers and R. A. Miller, The Constitutional Jurisprudence of the Federal Republic of Germany, 3rd ed. (Durham, NC: Duke University Press, 2012), p. 432. See M. Rosenfeld, “The Rule of Law and the Legitimacy of Constitutional Democracy,” Southern California Law Review 74 (2001), 1307–1351, 1329.

    



examine in greater detail in the following text, when dealing with judicially decided cases the optimal line to be drawn between such constitutionalization and politicization depends both on constitutional content as on constitutional and political context. For the moment, suffice it to draw attention to the two ends of the spectrum configured by the dialectics between constitutionalization and politicization. At a minimum, the Constitution and politics barely overlap and, for all practical purposes, remain completely apart. This is the case of purely procedural constitutional review where the judge functions, consistent with Kelsen’s view, as a “negative legislator.”25 This would be the case, for example, where the constitutional judge strikes down a law of the parliament because it was enacted without satisfying the legislature’s constitutional quorum requirement. In that case, the judge’s action has nothing to do with the law’s content or political impact, and can thus be characterized as virtually apolitical.26 At the other end of the spectrum, at a maximum, one can imagine all ordinary political decisions, whether through the enactment of legislation or otherwise, being subjected to constitutional review under a proportionality standard.27 In the latter case, all politics becomes constitutionalized and the Constitution (and all its interpretations) becomes politicized all the way through. Notice, however, that even in this extreme case, the constitutional judge applying the proportionality standard remains within the realm of judicial politics and the confines of the language game of law. Indeed, just as the constitutional judge may have to balance between free speech and security interests in an ordinary fundamental-rights setting, she can analogously balance military security pursuits and basic civil liberties interests in a terroristprevention context. In other words, because of its seemingly inexhaustible potential, the proportionality test allows for judicialization of all

25

26

27

See H. Kelsen, General Theory of Law and State, trans. A. Wedberg (New York: Russell & Russell, 1961), p. 128. Although the judicial act would be apolitical, its consequences would obviously not necessarily be so. Failure to enact or to replace a consumer protection law, for instance, may have significant political repercussions. This maximalist position was embraced by the former Chief Justice of the Israeli Supreme Court, A. Barak. See, e.g., his opinion in Beit Sourik Village Council v. The Government of Israel HCL 2056/04 [2004] (ordering, over the Israeli military’s objections, moving a separation barrier erected to deter Palestinian terrorism closer to the Israeli population than to that of the occupied territories where it had been initially erected, pointing out that whereas judges are not expert on military security and deterrence, they are experts on “proportionality”).



 

politics. But the feasibility of extending judicial politics to encompass the entire realm of ordinary politics by no means, as we shall see, implies its desirability.

The Constitutionalization of Politics in Judicial Decisions Except where the constitutional judge’s function is genuinely reducible to that of a negative legislator, any constitutional adjudication involves some constitutionalization of politics. However, not all such constitutionalization is attributable to judicial intervention because a distinction must be drawn between constitutionalization through inclusion within the Constitution and through judicial interpretation of the Constitution. Thus, for example, if the Constitution explicitly provides a right to abortion that subject becomes removed from ordinary politics because of constituent power politics as distinguished from judicial politics. However, if the constitutional judge decides that a constitutional right to privacy encompasses a right to an abortion, then the constitutionalization at stake is the product of judicial politics. Whereas the broader questions of practical feasibility and desirability must compare both constituent power and judicial politics as against ordinary politics – and will be further addressed in “Legitimating the Constitutionalization of Politics within the Proper Scope of Judicial Politics” – concentration on judicial politics and on the controversies it raises within the polity must avoid conflating constituent power politics with judicial politics. Thus, if the Constitution explicitly protects a right to abortion, critics of abortion rights should pin blame on the Constitution and not on the judge who strikes down a law that abridges the right involved. Conversely, the existence of a broad consensus on the propriety and desirability of an existing right to free speech does not preclude deep political divisions over an exercise of judicial politics that equates donating money to political candidates with freely publicizing one’s support for the latter’s political agenda and views.28 Accordingly, entrusting the subject in question to judges may be largely uncontroversial as it makes perfect sense to make judges the ultimate guarantors of individual free speech rights even if disagreements easily arise within the relevant confines of judicial politics. The strongest case for entrusting a matter to judicial politics arises where the issue to be adjudicated ought to be preferably submitted to an 28

See Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

    



anti-majoritarian institution and when it can be best accommodated within the language game of judicial politics. Traditional fundamental rights cases generally satisfy these two requirements within the ambit of constitutional democracy. Unpopular views, historically reviled religious minorities, and traditionally persecuted racial and ethnic minorities seem bound to fare better with judges who are insulated from majoritarian pressures. Moreover, fundamental rights cases seem best handled within the realm of judicial politics as its tool kit seems best suited – or at least not worse suited than any other – to the task at hand. Specifically, the constitutional judge appears particularly well equipped to resolve conflicts among constitutional rights and among the latter and societal interests embodied in law and policy. Indeed, these conflicts are either amenable to categorical resolutions resulting from legal interpretation of the Constitution and relevant judicial precedents or to resolutions pursuant to application of the proportionality standard. Thus, for example, if the free speech right of one citizen conflicts with the privacy right of another, the constitutional judge may either have recourse to an established hierarchy between these rights – found in the Constitution or in relevant judicial interpretations of the Constitution – or to the proportionality standard to ascertain which judicial outcome would best approximate an optimal balance between these two rights. Furthermore, whether the proper domain of judicial politics in fundamental rights cases is deemed to be national or international – as reflecting the particularities, tradition and history of a single country, or an international consensus on the confines of, and balances among, virtually universally recognized fundamental rights – it will in all likelihood be sufficiently carved out to allow for a clear demarcation of the language game of (constitutional) law from all its counterparts. Even in this best case, two seemingly weighty objections arise. First, reliance on judges may not mitigate majoritarian biases to the extent that the judges involved belong to the country’s majority religion or ethnic and cultural dominant groups. Second, even if adjudication can be demonstrated to remain within the four corners of judicial politics, its ordinary politics effects may be so disruptive as to undermine confidence in judicial review. When properly considered, these two objections do not weaken the prima facie case for entrusting the cases under consideration to constitutional judges. This is due, in large part, because these objections are extrinsic rather than intrinsic in nature. Even a culturally insensitive judge may be in a better position than her legislative counterpart to resolve a claim of discrimination brought by a member of a



 

cultural minority. Accordingly, the mitigation of cultural bias under the circumstances may be best achieved by including members of a discriminated against cultural minority within the judiciary as opposed to shifting from judicial to ordinary politics. Similarly, the fact that routine adjudication of fundamental rights controversies may be politically highly divisive does not impact on the feasibility or integrity of judicial politics, but only on its desirability under the circumstances. Ronald Dworkin has characterized judicial vindication of fundamental rights as being a matter of principle, whereas determinations left to ordinary politics he regarded as involving questions of policy.29 In the realm of civil and political rights, the division of labor between principle and policy appears to hold up for the most part, thus legitimating the boundaries between judicial and ordinary politics. Realization of a policy may be upset or its scope of success limited if it must subordinate to the vindication of fundamental rights, such as free speech or equality between the sexes. Nevertheless, the priority of principle over policy ought to remain fairly clear and uncontroversial within this domain as the battle lines are, for the most part, clearly drawn out. For example, there is a broad consensus that vindication of free speech rights is essential to the conduct of fair democratic elections. Moreover, the bitter controversy generated by the US Supreme Court 5–4 decision in the Citizens United case was not regarding the principle/policy divide or about where to draw the line between the two, but instead concerning whether free speech requires allowing an unlimited expenditure of one’s own money in favor of one’s favorite candidates and political positions in the context of a democratic election. Accordingly, Citizens United turned not on the bounds between principle and policy, but on what ought to be constitutionalized and on the proper uses and interpretations of the appropriate language game elements at play in the realm of judicial politics. When compared to civil and political rights, also known as firstgeneration rights, social and economic rights, which form part of second-generation rights, are arguably, at least upon first impression, much less amenable to judicial politics both in terms of anti-majoritarian concerns and of fit within the language game of constitutional law. Civil rights, such as freedom of speech or the right to formal equality, often merely require government to refrain from acting and thus emerge as 29

See R. Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), p. 90.

    



negative rights. On principle, the state should not interfere with unpopular speech and it should not enforce laws that discriminate on the basis of race or sex. Contrast that with a constitutional right to minimum welfare, housing, or health. These rights cannot be vindicated without government intervention and thus amount to positive rights. Moreover, to ensure a minimum level of welfare benefits, decent shelter, and health benefits for those who lack the means for being self-sufficient, the state will be obligated to orient its budgetary allocations in certain ways. State budgetary decisions, however, are quintessentially policy based and hence, for the most part, majoritarian in nature. Finally, whereas negative rights comprise a strict reciprocity between the right holders’ constitutional entitlement and the state’s corresponding constitutional obligation – the state is obligated to refrain from interfering with the particular individual who seeks to express very unpopular views – positive rights often create a state positive obligation without a corresponding individual entitlement.30 Upon closer examination, the differences between first- and secondgeneration rights are not as stark as may be initially thought. This is for several reasons. First, first-generation rights are far from being purely negative. For example, vindication of private property rights may well require police protection against private trespass as well as the state refraining from undue interference. Similarly, the exercise of free speech rights may on occasion require that the state provide a suitable platform or that it restrain private parties who would otherwise silence the voices of those with whom they sharply disagree. Second, in many cases, second-generation rights do not allow for claims of individual entitlement and thus may be regarded as constitutional directives encouraging certain policy preferences. In many other cases, however, social and economic rights create individual entitlements that can be vindicated through constitutional adjudication.31 Third, in as much as social and economic rights are justiciable, they require judges to vindicate principles or limited constitutionally enshrined policies entitled to categorical or 30

31

See, e.g., Government of South Africa v. Grootboom, 2001(1) SALR 46 (Constitutional Court of South Africa) (constitutional right of access to adequate housing held not to create an individual entitlement but imposes on government the duty to maintain a system of access to adequate housing). See C. Jung, R. Hirschl, and E. Rosevear, “Economic and Social Rights in National Constitutions,” American Journal of Comparative Law 62 (2014), 1043–1098 (one-third of national constitutions make these rights justiciable; one-third, aspirational; and, onethird, a mixture of the two).



 

proportionate priority. For example, a right to a minimum guaranteed subsistence level for every individual may be viewed as embodying a fundamental principle requiring certain budgetary “set asides” that must be prioritized over competing budgetary policy objectives. Alternatively, the right in question may be understood as imposing a budgetary policy priority that stands on a higher footing than all other budgetary policy preferences that must be processed through the majoritarian legislative process. Whether individualized or not, so long as they are justiciable economic and social rights, they can fit fairly comfortably within the strictures of judicial politics. For the most part, justiciable economic and social rights controversies involve conflicts among competing rights or clashes between a right and a majoritarian policy and hence call for the kind of categorical or proportionality-based treatment that judges provide in first-generation rights cases. Thus, for example, the Italian Constitutional Court held that the constitutional right to healthcare implied a right to preventive medical treatment based on a balancing of the interests protected by that right against competing interests also protected by that country’s constitution.32 Similarly, in the context of a nonindividualizable right to access to a decent dwelling, the South African Constitutional Court, while mindful to avoid unduly interfering with budgetary policy, ordered that the government alter its low-cost housing building policy to put the needs of the most impoverished class ahead of others who were also qualified for such housing.33 Moreover, in this latter case, the court reached its conclusion by applying a rationality analysis that is a standard proportionality-based judicial tool widely used in constitutional adjudication. In sum, second-generation rights can be made amenable to the language game of judicial politics and accordingly entrusting them to constitutional judges is entirely feasible and consistent with a principled division of labor between judicial and ordinary politics. In addition, particularly in as much as economic and social rights protect those who are powerless and impoverished and have an impact on basic dignity-based concerns, a strong case can be made that they are best entrusted to anti-majoritarian rather than to majoritarian institutional actors. Finally, it bears emphasizing, once again, that feasibility and amenability to anti-majoritarian decision-making do not necessarily imply ultimate desirability, which will be addressed in “Legitimating the 32 33

See Italian Constitutional Court 267/1998, BCCL 1998, 260. See Government of South Africa v. Grootboom, 2001(1) SALR 46.

    



Constitutionalization of Politics within the Proper Scope of Judicial Politics.” To better assess the limits of the justifiable constitutionalization of judicial politics, it is useful to concentrate on two kinds of seemingly borderline cases. The first concerns cases that, because of their nature or institutional implications, may appear ill-suited for resolution within strictures of judicial politics and the second, cases that on the surface loom as ordinary instances of constitutional adjudication but in substance suggest usurpation of the discourse of judicial politics to conceal an undue constitutionalization of (ordinary) politics or an illicit politicization of the Constitution. The following three cases provide a vivid illustration of the first kind of borderline situation mentioned previously. The first of these is the Canadian secession case34 that deals with a quintessentially (ordinary) political issue – albeit one that involves an exceptional and extraordinary subject matter within the domain of ordinary politics. The second case is the South African one regarding the death penalty35 in which that country’s Constitutional Court undertook the institutional function of constitution-maker in relation to an issue that is, in substance, squarely amenable to constitutional adjudication. Finally, the third case is the Israeli one dealing with the constitutional status of basic laws enacted by the Knesset, Israel’s parliament,36 which would seem to involve a routine exercise of judicial politics, but for the fact that Israel had failed to enact a constitution prior to the Court’s decision (and has not yet enacted one as of this writing).37 Secession is not only an intensely political and, for the most part, highly divisive subject but also Quebec had a very close vote on independence from Canada in 1995, three years before the Canadian Supreme Court issued its decision, and the Canadian Constitution is silent on the matter. While recognizing that secession is ultimately a

34 35 36

37

See Reference re Secession of Quebec, [1998] 2 S. C. R. 217 (Supreme Court of Canada). S. v. Makwanyane, 1995 (3) SALR 391 (Constitutional Court of South Africa). United Mizrahi Bank Ltd. v. Migdal Village, CA 6821/93, 49 (4) P.D. 221 (1995) (Supreme Court of Israel). I have extensively discussed these three cases in M. Rosenfeld, “The Judicial Constitutionalization of Politics in Canada and Other Contemporary Democracies: Comparing the Canadian Secession Case to South Africa’s Death Penalty Case and Israel’s Landmark Migdal Constitutional Case,” in R. Albert and D. Cameron (eds.), Canada in the World: Comparative Perspectives (Cambridge: Cambridge University Press, 2018), 155–182. The following discussion summarizes some of the analysis in that previous work.



 

matter left to (ordinary) politics, the Court imposed substantive and procedural constitutional preconditions based on the “four fundamental and organizing principles” of the Canadian Constitution: “federalism; democracy; constitutionalism and the rule of law; and respect for minorities.”38 Given Canada’s common law tradition, and the canons of constitutional adjudication that it has embraced throughout its history, the constitutionally derived legal preconditions to the political negotiations that must take place once a Canadian province officially seeks to secede fall squarely within the language and accepted practices of judicial politics.39 The South African Constitutional Court decision on the constitutionality of the death penalty would have been a well-worn and fairly routine instance of judicial politics, but for the fact that due to the unique historical circumstances surrounding the making of that country’s postapartheid constitution, the Court was delegated constitution-making power over the subject before it. As the Court made clear, what it had to decide above all was whether “the death penalty is cruel, inhuman, or degrading,”40 a question that is frequently and with scant objection entrusted to constitutional adjudication.41 But because the official constitution-maker had specifically abstained from dealing with the death penalty question within the written constitution it was drafting, it officially cast the Court in a constitution-making role that it was expected to fulfill through an instance of constitutional adjudication, which in all appearance remained within the bounds of judicial politics. Focusing, among other things, on international human rights standards and on critical appraisal of other countries’ death penalty constitutional jurisprudence, the Court’s decision would have been unexceptional had it been limited to interpreting a constitution with no explicit reference to the death penalty in the context of the internationalization of 38 39

40 41

Reference re Secession, para. 32. Within the realm of judicial politics, some judges may argue for the restrictive judicial philosophy that requires that constitutional rights or obligations be explicitly found in the language of the Constitution. Other judges with more expansive views have, however, long derived constitutional rights and obligations that are arguably only implicitly relatable to the relevant constitutional text. See, e.g., Griswold v. Connecticut, – 381 U.S. 379 – (1965) ( US Supreme Court recognized an unenumerated constitutional right to personal privacy). Makwanyane, para. 78. See, e.g., Gregg v. Georgia, 428 U.S. 153 (1976) (US Supreme Court majority and dissenting justices disagreeing over whether the death penalty amounts to “cruel and unusual” punishment).

    



constitutional law. Consistent with this, the only serious question raised by this decision does not relate to its feasibility or consistency within the canons of judicial politics, but only to its desirability from the standpoints of both judicial politics and constitution-making.42 The Israeli case certainly emerges as the most far-reaching of the three in terms of the bounds of judicial politics. In that case, the country’s Supreme Court held that “Basic Laws” enacted by the Knesset, Israel’s parliament, enjoyed constitutional status and could not be repealed or superceded by the Knesset as if they had been ordinary laws.43 The case is particularly remarkable for two principal reasons: It invokes and applies constitutional norms in a country that had thus far (and as of this writing) failed to adopt a constitution; and it assumes that the country’s highest court, as opposed to its parliament, is empowered to resolve constitutional disputes, thus purporting to enshrine constitutional review by judges in the absence of a constitution.44 In his long and remarkably reasoned opinion, then Chief Justice Aaron Barak was very mindful of the vulnerability of judges as wholesale (as opposed to intermittent and exceptional in South Africa) constitution-makers and as appropriating for themselves the authoritative resolution of constitutional conflicts. To ward off accusations that his Court was engaging in plain ordinary (constitutional) politics while trying to conceal its overreach through deployment of the trappings of judicial politics, Barak resorted to two principal arguments. The first of these is based on an appeal to the 42

43 44

It should be noted that in its transition to a permanent postapartheid constitution, South Africa had entrusted the Constitutional Court with approval of the latter consistent with agreed-upon constitutional principles. Moreover, in the case of the death penalty an impasse was reached between the two principal parties charged with crafting a pacted constitution: members of the outgoing apartheid regime and liberation movements, principally Nelson Mandela’s African National Congress. See Certification of the Constitution of the Republic of South Africa, 1996 (4) SALR 7440, at Para. 11 (Constitutional Court of South Africa). United Mizrahi Bank Ltd. Israel’s failure to adopt a constitution is not for lack of opportunity as the first Knesset in operation after the country’s independence was also designated as a constituent assembly. Instead, the main reason for Israel’s lack of a constitution is a profound division within the citizenry over constitutional essentials, such as the relationship between religion and the state. See G. Stopler, “National Identity, Religion-State Relations: Israel in Comparative Perspective,” in G. Sapir, D. Barak-Erez and A. Barak (eds.), Israeli Constitutional Law in the Making (Oxford: Hart Publishing Ltd., 2013), pp. 503, 510 (“While some consider that the definition of Israel as a Jewish state constitutes an establishment of the Jewish religion in the state . . . others argue that the term ‘Jewish state’ . . . merely designat[es] . . . Israel as the home of the Jewish people.”).



 

internationalization of constitutional law. Specifically, Barak emphasized that there is a broad-based consensus relating to constitutional essentials among post–World War II democracies, both with respect to the constitutional protection of certain basic fundamental rights and to reliance on constitutional adjudication to interpret such rights and to dispose of conflicts between parliamentary laws and constitutional rights.45 This argument is certainly plausible and falls well within the bounds of judicial politics. Barak’s second principal argument, however, does not fare as well. Barak insisted that judges must draw on “the values of society as they are understood by the culture and tradition of the people as they move forward through history.”46 Barak specified, moreover, that the judge must not approach the values at stake subjectively, but instead approach them objectively so as to reflect the values as they inhere within the State of Israel “as a Jewish and democratic state.”47 But precisely, as already indicated, Israeli society is thus far irretrievably divided over constitutional essentials48 such that the country’s constitution-making potential has been thwarted for nearly seven decades. And accordingly, the judge who invokes consensus when there is none in the context of a constitution yet to be written, inescapably engages in ordinary politics in a setting with no plausible resolution within the confines of judicial politics.49 The second kind of cases mentioned in the preceding text are those that appear to belong squarely in the class of cases amenable to judicial politics but in which constitutional judges appear to unduly cross the line between the language game of law and that of politics. A particularly dramatic example of this is provided by Justice Kennedy’s reference in Roper v. Simmons50 – a US Supreme Court case on whether imposing the death penalty for a crime committed by a juvenile amounted to “cruel and unusual punishment” under the US Constitution’s Eighth Amendment – to the fact that the United States and Somalia were the 45 46 47 48 49

50

United Mizrahi Bank Ltd., para. 58. Ibid., para. 81. Ibid. See Sapir et al., Israeli Constitutional Law in the Making. Unsurprisingly, the Migdal decision has proved politically controversial and has given rise to several initiatives bent on depriving the Israeli Supreme Court of the power to engage in constitutional adjudication. See N. Dorsen et al., Comparative Constitutionalism: Cases and Materials, 3rd ed. (St. Paul, MN: West Academic Publishing, 2016), pp. 165–166. 543 U.S. 551, 576 (2005).

    



only two countries in the world that had not signed an international covenant barring the death penalty for crimes committed by juveniles. The mere association of the United States to Somalia as standing against all other nations amounts to a strong political message and casts a dramatic negative political and identitarian spell. It is therefore not surprising that dissenters who would have upheld the death penalty in Roper were vehement in their condemnation of Kennedy’s focus beyond American shores.51 Another example of apparent spilling over from law to politics, albeit in a considerably different way, is provided by what looms as the most divisive decision of the US Supreme Court in the past half century, namely that in Roe v. Wade,52 which recognized a constitutional right to having an abortion. The ongoing bitter political divisiveness unleashed by the Court’s decision in Roe v. Wade is ubiquitous, but one key aspect of the decision bears particularly salient political consequences. Roe would have been, in any case, inescapably controversial as it recognized an unenumerated right to abortion, a subject over which Americans have been passionately divided. But even under these circumstances, the Roe decision, as alluded to in the preceding text, could have been easily confined within the language game of law had the Court strictly adhered to the constraints imposed by the accepted judicial common law interpretive practice of confining its ruling to the strict minimum necessary to resolve the constitutional issue raised in the concrete case before it. In Roe, a woman who wanted to have an abortion challenged a Texas law that criminalized all abortions except those undertaken to save the life of the mother. The Supreme Court could have simply struck down the Texas law and specified that, as the right to an abortion is constitutionally protected, the state would have to advance a compelling interest for any limitation it sought to impose on the exercise of that right. That may have been enough for the plaintiff in Roe to obtain relief and for more specifications of the right involved to await further state legislation and future cases raising specific objections to the particular legislation at issue. Instead of that, however, the Court acted pretty much as a legislator, dividing pregnancy into three trimesters and then granting a woman an unrestricted right to abortion in the first trimester, authorizing limited state restrictions in the second trimester, and allowing for all state

51 52

Ibid., 622–628. 410 U.S. 113 (1973).



 

restrictions save when the mother’s life or health is endangered in the third semester. Whereas the contrast between strict adherence to the “case or controversy” constraint and the broad law-making approach in Roe is dramatic, the tension between tailoring constitutional adjudication to particular facts and fashioning it so as to provide greater guidance and unity within the decentralized US system of constitutional review is an inescapable one. And although more general decisions going clearly beyond the facts at hand will in most cases seem more political, there is much to be said for the need for US Supreme Court constitutional adjudication relating to fundamental rights to provide meaningful unity throughout the country and sufficient guidance to judges and other official actors charged with interpreting and protecting fundamental rights. Two of the most controversial relatively recent US Supreme Court decisions, Bush v. Gore (2000)53 and Citizens United v. Federal Election Commission (2010)54 may at first appear to belie the distinction between judicial and original politics, but upon further examination provide an excellent illustration of the proposition that the distinction in question is conceptually sound and yet at the same time difficult to maintain in practice. Both decisions undoubtedly had a profound political impact: Bush v. Gore practically handed the contested 2000 US presidential election to George W. Bush, and that by a 5–4 decision in which all the justices in the majority happened to have been nominated by Republican presidents;55 and Citizens United, which was also a 5–4 decision, as already mentioned, struck down a federal law that limited corporate contributions in support of political candidates through television commercials and other means on the grounds that such law violated free speech rights, thus giving corporate interests virtually unrestrained power to disproportionately influence the outcome of elections. The judicial handing over the 2000 election to Bush and the Court’s equating of money to speech have been widely criticized and have cast the US

53 54 55

531 U.S. 98. 558 U.S. 310. For an extended account and critique of the US Supreme Court’s Bush v. Gore decision, see M. Rosenfeld, “Bush v. Gore: Three Strikes for the Constitution, the Court, and Democracy, but There Is Always Next Season,” in A. Jacobson and M. Rosenfeld (eds.), The Longest Night: Polemics and Perspectives on Election 2000 (Berkeley: University of California Press, 2002), p. 111. The discussion that follows is largely based on the account provided in the just cited work.

    



Supreme Court in a particularly bad light.56 Nevertheless, the two cases are clearly distinguishable along the judicial versus ordinary politics divide. In Bush v. Gore, the five justices who handed the presidency to Bush departed from their restrictive judicial philosophy that had hitherto led them to strike down an unusually high number of immensely popular federal laws – including the prohibition of possession of guns in schools57 and the law tackling violence against women on a nationwide basis58 – to deviate from one of the firmest and longest-standing pillars of US federalism honored consistently by restrictive and expansive judicial interpreters alike. Indeed, it is a mainstay of American federalism that the highest state court is the authoritative interpreter of that state’s law and that federal judges are bound to conform to such highest state court’s interpretation when considering the (federal) constitutionality of any such law. Despite this, however, five US Supreme Court justices in fact handed the election to Bush by ordering an end to the recount of Florida voting ballots that had been imposed by the Florida Supreme Court based on its interpretation of Florida’s election law. To reach the result that they did, these justices had to substitute their own interpretation of the relevant Florida law for that of the state’s highest court. And this is precisely what the justices in the majority did. Furthermore, there was yet another glaring anomaly in the Court’s decision that may not have been outcome determinative,59 but that figures as strong evidence of politics taking over standard judicial practice. Indeed, the Court majority held that the disparity in the means of recounting votes accepted by the Florida Supreme Court violated the equal protection rights of Florida voters, but specified that its decision on this issue should not be construed as a judicial precedent in the context of future elections. Arguably, for a responsible judge, serious consideration that present decisions will serve as future precedents provides a significant buffer against fashioning

56

57 58 59

See, e.g., A. Liptak, “Supreme Court Gets a Rare Rebuke, in Front of a Nation,” New York Times, January 28, 2010. See United States v. Lopez, 514 U.S. 549 (1995). See United States v. Morrison, 529 U.S. 598 (2000). Even if the methods of vote recount accepted by the Florida Supreme Court were unconstitutional, the Supreme Court could have prescribed federally acceptable standards that would have allowed Florida to restart the recount from scratch and still meet all the pertinent deadlines for formally submitting the results of the recount to the US Congress, which has the constitutional task of providing final certification of the outcome of presidential elections. See US Constitution, Twelfth Amendment.



 

judicial results solely geared to the politics of the moment. If the equal protection holding in Bush v. Gore were to become a precedent for future presidential elections, it would have had to require a complete overhaul of the way in which Americans vote. In 2000, in Florida alone, there were 67 electoral districts with a variety of ways of recording and counting votes leading to citizens in different districts having measurably diverse probabilities that their vote would not be properly counted. The equating of speech and money in Citizens United is also consistent with an elitist brand of American conservative politics that promotes corporate interests and abhors state policies that have a redistributive effect. Unlike in the Bush v. Gore instance, however, judicial philosophy and ideology standing alone afford a plausible justification to the holding in Citizens United. Two related factors account for this latter proposition. The first of these is American exceptionalism in the context of free speech jurisprudence. Not only does the US Bill of Rights enshrine free speech rights that are articulated in absolute terms, but also US protection of such rights has been much more extensive than those promoted by most other constitutional democracies.60 The second factor, in turn, derives from the Lockean tradition in the conception of fundamental rights. For Locke, natural rights were conceived as flowing from a broad conception of property that weaves together individual dominion over his or her person, thoughts, conscience, beliefs, and possessions.61 Viewed accordingly, keeping in mind the metaphor of the individual as sovereign over his land, crops, and pursuit of happiness within his own delimited space, it seems perfectly logical to regard one’s money and ideas as inextricably linked. To be sure, for many this Lockean scenario cannot be credibly transplanted from its eighteenth-century preindustrial original setting to the contemporary world dominated by multinational corporations controlling wealth and resources that far exceed those of many nation-states. Be that as it may, the dispute between the Lockean speech absolutists and those seeking to achieve a proportionate balance between free speech and the integrity of the democratic process can be construed as tracking the conflict between originalists and adaptionists and that between the respective proponents of conflicting philosophies of fundamental rights. In sum, even if in practice it is impossible to 60

61

See M. Rosenfeld, “Hate Speech in Comparative Perspective: A Comparative Analysis,” Cardozo Law Review 24 (2003), 1523–1581. J. Locke, Second Treatise of Government, 3rd ed. (Hollywood, FL: Simon & Brown Book Publishers, 2012 [1689]), ch. 5.

    



determine whether politics shapes judicial philosophy or vice versa, in theory it remains possible to cast the two as distinct. What the contrast between Bush v. Gore and Citizens United illustrates, is that, although all legal determinations resulting from judicial review – and particularly those within the ambit of constitutional law where broad open-ended standards predominate as against narrowly tailored rules – have political consequences, judicial politics can be kept distinct from ordinary politics. Moreover, even if certain particular brands of judicial politics seem better aligned with particular positions and ideologies within the ambit of ordinary politics, a constitutional judge who adheres to her own judicial politics with integrity will undoubtedly have to rule on some occasions against her ordinary politics convictions and predilections. In short, the constitutional judge cannot be completely isolated from ordinary politics both because she cannot shed all her ordinary politics vestiges as she enters the language game of law and because it is, for the most part, impossible for judicial decisions not to have consequences that impact the realm of ordinary politics. That said, however, so long as the constitutional judge remains consistently within the strictures of the language game of law, she will be able to purge her constitutional interpretations from the hold of ordinary politics or to reprocess ordinary politics materials so as to make them amenable to absorption within the bounds of judicial politics.

Legitimating the Constitutionalization of Politics within the Proper Scope of Judicial Politics The language game of law, in general, and of constitutional law, in particular, is virtually unlimited. This implies that most issues within ordinary politics can be “translated” into the vernacular of judicial politics and potentially brought within the power of judges. However, keeping in mind the distinction referred to previously between what is feasible and what is desirable in terms of delimiting the domain of judicial politics, the discussion of cases in “The Constitutionalization of Politics in Judicial Decisions” suggests that there is an important difference between judicial politics in form and judicial politics in substance. Indeed, a mere reading of Bush v. Gore reveals, for the most part, that the various opinions of the US justices conform to the arguments and rhetoric of the language of judicial politics as they allude to the US Constitution, state and federal law, judicial precedents, and the lower court decisions on the controversy before the justices. Accordingly,



 

Bush v. Gore largely conforms to judicial politics in form,62 but given its various inconsistencies and anomalies discussed in the preceding text it largely fails the test of judicial politics in substance. Even if one could systematically eliminate all instances of judicial interventions that would fail the test of judicial politics in substance, that would leave an enormous territory ripe for extensive expansion of the constitutionalization of politics, which would inevitably result in excessive and undesirable politicization of the Constitution. To avoid such an outcome, the domain entrusted to judicial politics should not be merely determined by criteria of feasibility but also by those of desirability. Moreover, criteria of desirability are bound to be based both on content and on context. As emphasized previously, the principal content-based criteria involve preferable entrusting of a constitutional entitlement or obligation to an anti-majoritarian institutional resolution as opposed to a majoritarian one and greater (or at least equal) amenability to resolution pursuant to the canons of the language game of law than to those of the language game of ordinary politics. To this, one can add all that is structurally and functionally constitutive of the polity’s constitutional order, or that which amounts to secondary rules as opposed to primary ones, to borrow Hart’s distinction.63 Context-based criteria, however, obviously vary from one setting to the next, but can generally be characterized in terms of acceptable line drawing between what is entrusted to judicial politics and what is left to ordinary politics within a particular polity consistent with the preservation of the essentials of constitutional democracy. Thus, for example, it would be inappropriate to entrust all free speech controversies to the legislative and executive power to the exclusion of the judicial power. By the same token, it would be illegitimate to leave elections to parliament or to the presidency (in presidential or semi-presidential systems) exclusively in the hands of judges. However, depending on the prevalent constitutional and political culture, it seems equally acceptable to leave guaranteeing a minimum basic education to ordinary politics or to place it under judicial supervision. To better grasp how content-based and contextual factors ought to be harmonized to generate an optimal division of labor between judicial and 62

63

Arguably, the Court’s majority insistence that its equal protection holding should not be considered as having precedential value exceeds the confines of judicial politics in form in a common law jurisdiction such as the United States. See H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961), p. 71.

    



ordinary politics, it seems useful to start by considering two separate scenarios, each of which stands at the opposite end of spectrum extending from the most restrictive to the most expansive acceptance of judicial politics as presumptively legitimate. At the minimalist end of the spectrum is the basically essentialist conception that enjoys broad popular support. As translated into the language of the perspective advanced here, a constitution that appears to rise above politics amounts to one that commands a consensus within the realm of ordinary politics. Such a consensus, moreover, is likely to be based in part on ideological grounds and in part on contextual adherence to particular ordinary politics convictions. For example, in a classical liberal ideological setting, a constitution with formal negative constitutional rights and bereft of extensive social, cultural, and economic rights is much more likely to garner widespread acceptance than a constitution that emphasizes positive and collective rights. Also, depending on the particular context involved, there may be significant variations even in the presence of a shared commitment to the same broad ideological ideals. For instance, constitutional democracies that are essentially secular in nature can differ on the particulars concerning the relationship between the state and religion. Thus, separationist countries, such as France and the United States, differ on particulars, including the permissibility of state subsidy of religious education, while non-separationist secular democracies, like Italy and Germany, allow for certain preferences, including religious education in state schools, accorded to majority religions.64 Furthermore, what the minimalists consider as being within the proper scope of authority of constitutional judges also translates into that which commands consensus within the realm of ordinary politics and also combines an ideological and a contextual component. In the narrowest version of this, the ordinary politics consensus must go all the way and accordingly legitimate judicial politics would be confined to the narrow spectrum of judicial decisions that would command a consensus throughout the polity. Thus, if there were a consensus on textualist interpretations of purely formal negative rights, then use of any other judicial technique or philosophy would be presumably illegitimate. In contrast, in the broadest version of this same position, the ordinary politics consensus is limited to drawing the line between what is fit to be entrusted to judicial politics 64

See S. Mancini and M. Rosenfeld, “Introduction,” in S. Mancini and M. Rosenfeld (eds.), Constitutional Secularism in an Age of Religious Revival (Oxford: Oxford University Press, 2014), pp. xv, xxiii–xiv.



 

and what not. Thus, for example, so long as constitutional judges are limited to deciding formal structural and process issues and negative rights controversies, differences relating to judicial philosophy over which the citizenry might be divided would not affect the legitimacy of the judicial politics generated outcomes produced. At the other end of the spectrum is the situation in which a judicial decision is formally within the ambit of the language game of judicial politics, but substantively barely so. The Bush v. Gore case may be at the very limit and arguably barely within or just outside of the relevant boundary. The Migdal case, however, seems within the spectrum but very near its outer boundary. Moreover, the other two cases discussed in “The Constitutionalization of Politics in Judicial Decisions” that are borderline in similar ways do not fall at either end of the spectrum identified in the preceding text. Indeed, both the Canadian and South African cases can be solidly defended as legitimate exercises of judicial politics based on a combination of structural, substantive, and contextual factors. Both these cases promote a significant degree of constitutionalization of politics: the Canadian case by imposing constitutional preconditions to the (ordinary) political process of secession; the South African case, by judicially opting for a constitutional provision against the death penalty notwithstanding that a majority of the country’s citizens favored capital punishment for certain crimes. The main danger stemming from taking the constitutionalization of politics too far is the unleashing of an excessive politicization of the Constitution that tends to blur the proper boundary between ordinary and judicial politics. In other words, a matter may be well within the legitimate bounds of judicial politics structurally and substantively and yet prove so divisive on an ordinary politics plane – either because of the subject matter involved or because of a widely perceived undue extension of judicial power – that the polity at large regards a judicial decision on the matter in question as amounting to an abuse of power. A particular salient example of this is provided by the open defiance against the German Constitutional Court’s decision that the display of the crucifix in state school classrooms in Bavaria was unconstitutional.65 In Germany, the constitutionalization of politics has been quite extensive, due in significant part to the high regard to which constitutional judges had 65

See Classroom Crucifix II, 93 BverfGE 1 (1995) (German Constitutional Court) and M. Rosenfeld, “Constitutional Adjudication in Europe and the United States: Paradoxes and Contrasts,” International Journal of Constitutional Law 2 (2004), 633–668.

    



been held in comparison to the ordinary political branches that had been significantly diminished as a consequence of their reprehensible moral and political failures during the Third Reich.66 In spite of this high regard for German constitutional judges and of the fact that their decision was on a question quintessentially within the realm of judicial politics relating to the freedom of religion rights of religious minorities and of the nonreligious in Bavaria, the Bavarian polity reacted to the Court’s decision as if it had been an illegitimate exercise of judicial power. The precise boundaries between legitimate constitutionalization of politics and illegitimate politicization of the Constitution are undoubtedly hard to draw and are, in most cases, likely to be genuinely contestable. Furthermore, a case such as that concerning the crucifix in Bavaria can equally be plausibly interpreted as involving an unacceptably poor exercise of judicial politics or as comprising an abusive intrusion by judges into the realm of ordinary politics. In the former alternative, the judges would be accused of having grossly misinterpreted the freedom of religion protections afforded by the German Basic Law; in the latter alternative, the judges would be charged with having usurped the right of the people of Bavaria to decide by majority vote whether to require the presence of crucifixes in public school classrooms by wrongly converting an (ordinary) political question into a constitutional one. Considering the substantive and context-based considerations, there is a strong argument that the seemingly borderline Canadian and South African decisions, discussed in “The Constitutionalization of Politics in Judicial Decisions,” were ultimately desirable as well as legitimate. Indeed, in the case of Canada, placing the quintessentially political process of secession through constitutional filters may well enhance deliberation, comity and the protection of vulnerable fundamental interests traditionally entrusted the protection of judges. Moreover, the desirability in question is enhanced by Canada’s traditional broad tradition of constitutionalism and extensive toleration of a broad conception of the constitutionalization of politics. The only apparent drawback from the standpoint of desirability would arise in the eventuality of a unilateral secession that would be carried out in open disregard of the constitutional prerequisites now in place. That drawback should be deemed as relatively minor, however, as such a unilateral secession would most likely be in any event politically divisive on a nationwide basis regardless

66

See ibid., 665.



 

of particular rule of law or constitutional considerations. Turning to the South African case, delegation of constitution-making regarding the death penalty to the Constitutional Court emerges as highly desirable for both substantive and contextual reasons. As already noted, the constitutionality of the death penalty is a subject that falls squarely within the ambit of judicial politics. In addition, the South African Constitutional Court, a highly trusted institution, in the context of South Africa’s pacted postapartheid constitution-making, was entrusted with a unique role that place it at the center of the entire constitution-making enterprise. Indeed, the desirability of the Constitutional Court’s intervention was bolstered by its mandate to determine the conformity of the proposed permanent postapartheid constitution with a set of previously agreed to constitutional principles.67 In the Israeli case, by contrast, there is a strong argument that the decision was undesirable in addition to being at the borderline of legitimacy. That argument seems bolstered by the previously noted subsequent efforts within the Israeli polity to formally deprive the Supreme Court of any power to engage in constitutional adjudication.

Conclusion Based on the preceding analysis and on focus on the salient implications deriving from the contrast between judicial and ordinary politics, it becomes clear that the much criticized “judicialization” or constitutionalization of politics is not in and of itself good or bad. Although from the standpoint of the overall good of society all intersubjective dealings have (ordinary) political dimensions, as we have seen a combination of content-based and contextual considerations justify entrusting certain key decisions to judges while leaving others to those who operate within the realm of ordinary politics. More generally, some constitutionalization of politics seems inevitable and desirable for any constitutional democracy. How much, however, depends on contextual factors. For example, in the early 1990s following the fall of the Soviet Union, constitutional courts in East and Central Europe, and most notably in Hungary, played a key and extensive role in the transition from communism to liberal

67

See Certification of the Constitution of the Republic of South Africa, 1996 (4) SALR 744 (CC) (Constitutional Court of South Africa) (paras. 11–13).

    



democracy.68 In the last few years, however, this trend has been dramatically reversed, the Hungarian Constitutional Court stripped of most of its powers, and that country as well as others stirred in a populist and illiberal direction.69 On the one hand, the new political ethos prevalent in those countries has shown little patience toward the constitutionalization of politics. On the other hand, because fundamental rights and minorities seem particularly threatened as illiberal populist democracy takes hold, there is a strong argument that judicial politics and the constitutionalization of politics ought to be preserved or expanded rather than dramatically limited. In short, the contrast between judicial and ordinary politics provides us with a valuable analytical and critical tool in the assessment of the optimal role that constitutional judges ought to play consistent with the pursuit or preservation of liberal constitutionalism in various historical, political, and cultural contexts. 68

69

See W. Sadurski, Rights before Courts: A Study of Constitutional Courts in PostCommunist States of Central and Eastern Europe, 2nd ed. (New York: Springer Publishing, 2014), p. 13. Ibid., pp. 10–13.

3 Judicialization of Politics or Politicization of the Courts in New Democracies?  . 

Introduction Neal Tate and Torbörn Vallinder documented a worldwide move toward the increasing empowerment of judges and labeled the phenomenon “judicialization,”1 and the tendency they identified typically manifests itself where courts have the authority to exercise constitutional review. As institutions that are simultaneously political and juridical,2 constitutional courts emerge as significant players in a nation’s politics. Yet, do bold, assertive constitutional courts necessarily bolster democracy, particularly in relatively new democracies? I argue that constitutional courts that push the margins of their authority aggressively may lead to the politicization of the courts, which may, in turn, result in an erosion of judicial legitimacy, particularly in new democracies. Indeed, in even a mature democracy, such as the United States, a court perceived as overstepping its bounds can lose public support.3 Constitutional design can, by focusing on fostering healthy political parties that periodically rotate in office, create effective and accountable “guardian” constitutional courts, appropriately empowered to act as referees in the political arena. By Tom Ginsburg’s count, 158 of 191 countries have adopted some form of constitutional review, if only on paper.4 The logic behind 1

2

3

4

C. N. Tate and T. Vallinder, The Global Expansion of Judicial Power (New York: New York University Press, 1990). Y. Mény and A. Knapp, Governments and Politics in Western Europe (Oxford: Oxford University Press, 1998). J. McCarthy, Disapproval of Supreme Court Edges to New High, Gallup, October 2, 2012, www.gallup.com/poll/18592/disapproval-supreme-court-edges-new-high-aspx? T. Ginsburg, “The Global Spread of Constitutional Review,” in K. E. Whittington, R. D. Kelemen, and G. A. Caldeira (eds.), Law and Politics (Oxford: Oxford University Press, 2008), pp. 81–98.



  



constitutional review lies in the belief that “if parliament itself is the judge of the constitutionality of its own laws, it can easily be tempted to resolve any doubts in its favor.”5 Because they are not elected, constitutional court judges must, consequently, derive the legitimacy necessary for their decisions to be enforced from positive public perceptions: the diffuse support for a court.6 That does not necessarily mean that courts are not directly answerable to the public, but rather that they achieve public legitimacy if perceived as employing legal procedures and legal principles for decisions.7 The existence of a constitutional court theoretically insures that new democracies will not “backslid[e] into earlier anti-democratic political ways,”8 an assumption that was empirically verified by finding that across 164 different nations from 1960 to 2000.9 However, if courts become too aggressive or behave too independently in major political controversies, the judiciary risks becoming politicized.10 Clearly judges, like other political actors, seek to increase their authority for institutional dignity or for simple dislike of competing power sources,11 but contests for political authority or pursuit of constitutional rights can pull courts, even unwillingly, into the political fray. How then can the judicial aspect of the hybrid institution temper constitutional courts’ political character? The most desirable arrangement lies in constraining all political actors, including constitutional courts, through achievement of interinstitutional equilibrium fostered by competitive elections and rotation in power. Ideally, that equilibrium supports a mutual respect and deference among branches, such that each

5 6

7

8

9

10

11

A. Lijphart, Patterns of Democracy (New Haven, CT: Yale University Press, 2012), p. 212. T. S. Clark, The Limits of Judicial Independence (Cambridge: Cambridge University Press, 2011). F. Vibert, The Rise of the Unelected: Democracy and the New Separation of Powers (Cambridge: Cambridge University Press, 2007). M. Shapiro, Courts: A Comparative and Political Analysis (Chicago: University of Chicago Press, 1981), p. 155. D. M. Gibler and K. A. Randazzo, “Testing the Effects of Independent Judiciaries on the Likelihood of Democratic Backsliding,” American Journal of Political Science 55 (2011), 696–709. P. Russell, “Judicial Independence in Comparative Perspective,” in P. Russell and D. M. O’Brien (eds.), Judicial Independence in the Age of Democracy (Charlottesville: University of Virginia Press, 2001), pp. 301–308. L. Garlicki, “Constitutional Courts versus Supreme Courts,” International Journal of Constitutional Law 5 (2007), 44–68.



 

acknowledges the office and functions of the others.12 The surrogates for the ultimate holders of power in democracies – the people – are elected representatives,13 and the popular voice can be conveyed, either to support judicial decisions or to limit inappropriate judicial incursions, if the political parties that channel the people’s voice can compete effectively and realistically anticipate gaining authority. Only in systems with competitive elections and rotation in power that allow legislatures to serve their representative functions can judges sitting on admittedly hybrid courts carry out an appropriately judicial mission and avoid the pitfalls of politicization.

Role(s) of Constitutional Courts What constitutes the “normal” expectations of what should motivate constitutional court judges? The definition of normal becomes more complicated when speaking about admittedly hybrid, both political and judicial, constitutional courts. Indeed, as Kelsen noted, every judicial decision can be conceived as a legislative act, simultaneously creating and applying law.14 Although some argue to the contrary, John Hart Ely perhaps best captured the appropriate and legitimate role of courts, be they constitutional or otherwise, with his referee analogy: “[A] referee is to intervene only when one team is gaining unfair advantage, not because the ‘wrong’ team has scored.”15 In any given case, and on any given court, differences will arise as to whether a constitutional court exceeded its referee role, but the analogy provides a measuring stick, and we know that when “a judge’s interpretations are sharply at odds with public policy preferences, political fallout can follow.”16 The typology offered by Guarnieri and Pederzoli, which classifies judges on the dimensions of autonomy and discretion, provides a useful framework for conceptualizing various judicial roles. Political autonomy refers to how effectively insulated the judges are from political attack by other power centers in government, whereas the discretion captures how 12 13 14

15

16

Vibert, The Rise of the Unelected. Clark, The Limits of Judicial Independence. H. Kelsen, General Theory of Law and State (Cambridge, MA: Harvard University Press, 1945). J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA: Harvard University Press, 1980), p. 103. C. G. Geyh, Courting Peril: The Political Transformation of the American Judiciary (Oxford: Oxford University Press, 2016), p. 30.

  



firmly decisions are grounded in existing, substantive law or permit judicial creativity. Judges can, then, using those two criteria be classified as executor, delegate, guardian, or political, and the ideal type of a guardian judge reflects ones that play a referee role and do not substitute their notions of good law for those of elected representatives. The guardian judge has high political autonomy but is allowed only a defined space for judicial discretion, whereas the political judge is one with high political autonomy and room for high judicial creativity, what would commonly be called an “activist.”17 Those are the judges who can become “intrusive political actors”18 to be guarded against. How might the Guarnieri and Pederzoli typology apply in the context of constitutional courts? The logic behind constitutional review – that ordinary laws must conform to higher or fundamental law – seems unassailable as a tenet of the rule of law. Nonetheless, constitutional courts’ primary function is to restrain legislative majorities and executive actors,19 and often is fulfilled not by annulling a law, but rather by providing an incentive for other political actors to self-police.20 The key to achieving equilibrium lies in creating motivations for all government actors to exercise constitutional restraint. The question becomes one of means, motives, and opportunities.21 Constitutional review ought only to set the parameters for actions, and constitutional courts should, therefore, serve merely as parametric actors. However, because decisions of a constitutional court typically occur at the end of sequential processes, its decisions are theoretically final and binding.22 Thus, constitutional court judges who see their role as one of guardians – high autonomy and restrained use of discretion – can set parameters and defend rights without intruding inappropriately on legislative or executive authority.

17

18

19

20

21

22

C. Guarnieri and P. Pederzoli, The Power of Judges: A Comparative Study of Courts and Democracy (Oxford: Oxford University Press, 2002). D. L. Horowitz, “Constitutional Courts: A Primer for Decision Makers,” Journal of Democracy 17 (2006), 126. G. Vanberg, “Legislative–Judicial Relations: A Game-Theoretic Approach to Constitutional Review,” American Political Science Review 45 (2001), 346–361. L. Epstein, J. Knight, and O. Shvetsova, “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Government,” Law and Society Review 35 (2001), 117–163. G. Grendstad, W. R. Shaffer, and E. Walterburg, Policy Making in an Independent Judiciary: The Norwegian Supreme Court (Colchester, UK: ECPR Press, 2015). Epstein et al., The Role of Constitutional Courts.



 

A number of constitutional courts in new democracies have had their, to borrow Ferejohn’s term, “Marbury moments” and acted as political judges.23 Due to miscalculation or overreaching, those heady actions did not necessarily enhance the court’s standing. The first Russian Constitutional Court acted assertively and was closed for “reconstruction” two years after its establishment, and its successor court was significantly reduced in authority.24 Likewise, the Hungarian Constitutional Court was aggressive, invalidating legislative inaction (unconstitutional by omission) 260 times over the course of a mere five years,25 and its ardor was neutralized through a series of new appointments.26 A similar fate befell the Egyptian Supreme Constitutional Court when it challenged the regime too aggressively.27 More recently, all courts in Poland escaped, at least temporarily, what constituted a purge only because of significant public protest and a presidential veto.28 The frequency and vigor of the exercise of constitutional review is also shaped by what the courts are charged with deciding. For example, in at least three Middle Eastern countries, navigation of the secular–religious divide has been shifted out of the political process and on to constitutional courts.29 In a number of Central and Eastern European nations, the constitutional courts decide issues of elections, referenda, executive impeachment, and lawfulness of political parties in addition to their core functions.30 In other places, notably Colombia, the courts became quite aggressive because of a crisis in representation and the weakness of both opposition parties and social movements.31 Constitutional judges may in those conditions find a strong temptation to reach beyond their role as 23

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28 29

30 31

J. Ferejohn, “Judicial Power: Getting It and Keeping It,” in D. Kapiszewski, G. Silverstein, and R. Kagan (eds.), Consequential Courts: Judicial Roles in Global Perspective (Cambridge: Cambridge University Press, 2013), pp. 349–362. Horowitz, Constitutional Courts; K. L. Scheppele, “Constitutional Negotiations: Political Contexts of Judicial Activism in Post-Soviet Europe,” International Sociology 18 (2003), 219–238; C. Thorson, “Why Politicians Want Constitutional Courts,” Communist and Post-Communist Studies 37 (2004), 187–211. Horowitz, Constitutional Courts. Scheppele, Constitutional Negotiations. T. Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007). “Objection Sustained: Illiberalism in Poland,” Economist, July 29, 2017, 41. R. Hirschl, “Constitutional Courts vs. Religious Fundamentalism,” Texas Law Review 82 (2004), 1819–1859. Horowitz, Constitutional Courts. R. Uprimny, “The Constitutional Court and Control of Presidential Extraordinary Powers in Colombia,” Democratization 10 (2003), 46–69.

  



guardians and move into a role of political judges. How vigorously constitutional review is wielded also depends on the cases that reach the courts; potential litigants must have incentives and ability to bring litigation.32 The exercise of constitutional review sometimes reaches beyond a court’s core functions and even ancillary charges. Sometimes, in situations in new democracies undergoing massive transformation, such a South Africa, courts ignored separation of powers and “intrude[d] further into politics than their colleagues in mature democracies would not deem necessary or prudent.”33 Likewise, in India, in an effort to preserve what was called “fundamental rights,” the Supreme Court declared some aspects of the constitution unamendable.34 The Peruvian Constitutional Tribunal, by contrast, acted deferentially in the exercise of constitutional review if the political actor implicated in an unconstitutional activity remained in power.35 The blade of constitutional review can usually be blunted by constraints imposed or anticipated from other political actors. Therefore, Argentine judges “strategically defected” as presidential terms were nearing their conclusion,36 whereas in Colombia the Constitutional Court was more likely to uphold presidential decrees than ordinary legislation.37

Judicialization Judicialization is a term about which considerable confusion swirls, but generally the term implies that courts have expanded their reach at the expense of other political actors or at least have introduced legal-like 32

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D. Kapiszewski, “Power Broker, Policy Maker or Rights Protector?,” in G. Helmke and J. Ríos-Figueroa (eds.), Courts in Latin America (Cambridge: Cambridge University Press, 2011), pp. 154–186. T. Roux, “Legitimating Transformation: Political Resource Allocation in the South African Constitutional Court,” Democratization 10 (2003), 108. M. P. Jain, “The Supreme Court and Fundamental Rights,” in S. K. Verma Kusum (ed.), Fifty Years of the Supreme Court of India (Oxford: Oxford University Press, 2000), pp. 1–100. L. Brashear Tiede and A. F. Ponce, “Evaluating Theories of Decision Making on the Peruvian Constitutional Court,” Journal of Politics in Latin America 2 (2014), 139–164. G. Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge: Cambridge University Press, 2005). J. C. Rodríguez-Raga, “Strategic Deference in the Colombian Constitutional Court, 1992–2006,” in G. Helmke and J. Ríos-Figueroa (eds.), Courts in Latin America (Cambridge: Cambridge University Press, 2011), pp. 81–98.



 

terminology and processes across the larger political system. Vallinder conceived the term as having several potential connotations: (1) courts actively insert themselves in the political sphere; (2) courts evolve into a role in that sphere through a process of delegation; or (3) courtlike processes manifest themselves in other political contexts.38 Stone Sweet contends that the process depends on a political environment that permits delegation to courts, along with a legal record of judicial resolution of constitutional conflicts and the subsequent effect of those judicial pronouncements on the legislative process in the future.39 Judicialization creates, in other words, a feedback loop that makes the process regenerative. At its core, judicialization presumes that judges face few or no constraints.40 The process of judicialization can also be propelled by legal mobilization,41 particularly in newer democracies, when civil society actors utilize courts and legal processes to advance their agendas.42 These and multiple other elaborations of “judicialization” all encompass the idea that courts, whether by their own choice or through delegation, have overstepped the prescribed role of the judiciary and forayed into the political sphere and, in doing so, have overlaid the legislative process with a quest to anticipate how a court might rule on legislation. The underlying assumption is that courts are somehow acting inappropriately or at least pushing the boundaries of their proper role directly, by voiding legislative policies, or indirectly, by deterring policy adoption.43 The other implicit assumption that seemingly undergirds scholarly discussions of “judicialization” is that the phenomenon is positive. Shapiro (1999) argues that “successful” constitutional review results when courts begin by asserting authority in division of powers disputes and then reach into the realm of rights adjudication. Mark Tushnet even

38

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41 42

43

T. Vallinder, “Then the Courts Go Marching In,” in C. Neal Tate and T. Vallinder (eds.), The Global Expansion of Judicial Power (New York: New York University Press, 1990), pp. 13–26. A. Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford: Oxford University Press, 2000). C. Hönnige, “The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts,” West European Politics 32 (2010), 963–984. C. R. Epp, The Rights Revolution (Chicago: University of Chicago Press, 1998). P. Domingo, “Judicialization of Politics or Politicization of the Courts?,” Democratization 11 (2004), 104–126. Hönnige, The Electoral Connection.

  



advises strategies for assertion of judicial authority. A constitutional court early in its existence can take on a highly controversial political case and decide against the ruling party – “one and done” – and then back away. The court subsequently steps out of the political fray but has established its authority and independence. Judges can alternatively act incrementally and regularly invalidate multiple but minor laws.44 Blondel sees the accretion of power from politicians to the benefit of judges as causing distrust of politicians,45 and Tate adds that, when judges have more respect than politicians, it accelerates.46 When judicialization occurs, it reverses the normal division of powers such that “judges have the upper hand and assess the actions of politicians.”47 Or, the danger to democracy derives instead from “an excess of constitutional jurisdiction and an overloading of the political process with legal arguments.”48 Thus, a “gouvernement des juges,” so dreaded in the French ancien régime, becomes possible. That possibility can more easily become a probability in new democracies “where the rules of the political game are in flux”49 and in which governing institutions lack longstanding traditions and democratically sustaining precedents.

Accountability How, then, particularly in new democracies, can judges with the power of constitutional review be insulated from political repercussions for their decisions and yet sufficiently, but not excessively, empowered? Constitutional design or redesign is pivotal in the transition to democracy because it sets the “rules for subsequent political contestation.”50 One constitutional amendment in Costa Rica creating a constitutional 44

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47 48

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M. Tushnet, Advanced Introduction to Comparative Constitutional Law (Cheltenham, UK: Edward Elgar , 2014). J. Blondel, Comparative Government: An Introduction (London: Prentice-Hall, 1995). C. N. Tate, “Why the Expansion of Judicial Power?,” in C. Neal Tate and T. Vallinder (eds.), The Global Expansion of Judicial Power (New York: New York University Press, 1990), pp. 27–38. Blondel, Comparative Government, p. 351. C. Landfried, “Introduction,” in C. Landfried (ed.), Constitutional Review and Legislation (Baden-Baden, Germany: Nomos, 1988), p. 9. V. Beširvić, “Governing without Judges: The Politics of the Constitutional Court in Serbia,” International Journal of Constitutional Law 12 (2015), 954–979. J. K. Jung and C. J. Deering, “Constitutional Choices: Uncertainty and Institutional Design in Democratizing Nations,” International Political Science Review 36 (2015), 60–77.

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chamber for the Superior Court, for example, ushered in the “single most profound change in Costa Rican politics since the end of the 1948 civil war.”51 Possible configurations of constitutional review are extensive. First are the issues of authority: diffused or centralized review, a posteriori or a priori, concrete or abstract, and access,52 as well as how to reverse constitutional review decisions and the effect of judicial declarations of unconstitutionality.53 The reach of constitutional review is undoubtedly relevant as abstract versus concrete arrangements determine who can seek review. How constitutional review decisions can be reversed and the effects of the invalidation of laws form an important part of a structure of reciprocal accountability or, in other words, institutionalizing legal mistrust.54 The institution of constitutional review implies that the court or courts will referee among competing national power centers, between levels of government in federal systems and between individuals and the government. The ideal type of the guardian judge requires that those exercising constitutional review be granted high autonomy but endowed with a measured degree of discretion to exercise judicial creativity. Just as democracies inherently embody the paradoxes of conflict and consensus, representativeness and governability, and consent and effectiveness,55 so too must independence be reconciled with accountability. Judicial independence can be justified as promoting government by law, procedural fairness and the pursuit of justice.56 However, judicial independence constitutes a value to be prized only if it fosters judicial impartiality.57 Obviously, judges should possess job security because judges who can easily be dismissed can be motivated to rule consistent with the wishes of 51

52 53 54

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B. M. Wilson, “Enforcing Rights and Exercising an Accountability Function,” in G. Helmke and J. Ríos-Figueroa (eds.), Courts in Latin America (Cambridge: Cambridge University Press, 2011), p. 56. Epstein et al., The Role of Constitutional Courts. Horowitz, Constitutional Courts. G. O’Donnell, “Horizontal Accountability: The Legal Institutionalization of Mistrust,” in S. Mainwaring and C. Welna (eds.), Democratic Accountability in Latin America (Oxford: Oxford University Press, 2003), pp. 34–54. L. Diamond, “Three Paradoxes of Democracy,” in L. Diamond and M. F. Plattner (eds.), The Global Resurgence of Democracy (Baltimore: Johns Hopkins Press, 1993), pp. 95–107. Geyh, Courting Peril. C. Guarnieri, “Courts as an Instrument of Horizontal Accountability,” in J. Maravall and A. Przeworski (eds.), Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003), pp. 223–241.

  



those who might remove them.58 More blunt instruments of coercion, such as removing judges summarily, packing courts, taking away jurisdiction, and threatening or corrupting judges, obviously must be precluded. Life tenure for judges or lengthy, nonrenewable terms generally protect judges, but can also lead to judges so insular that they disregard appropriate considerations in rendering decisions.59 Some supermajority requirement for selection that forces political/ideological sharing of appointments can enforce a degree of ideological and partisan moderation on a constitutional court that constrains political behavior.60 One need not look far in the annals of constitutional courts, particularly in new democracies, to isolate why some courts were curbed and others were not. The eventually defanged Hungarian Constitutional Court in the single year of 1991 invalidated 19 percent of parliamentary acts and 47 percent of decrees that it reviewed.61 Similarly, the Lithuanian court in 1993 deemed approximately half of the laws that it reviewed invalid in whole or in part.62 The Polish constitution drafters chose a means to limit court-legislative conflicts by allowing the legislature to repass a law invalidated by the constitutional court, if the law was passed a second time by the same majority required to pass a constitutional amendment.63 Even so, the Polish Constitutional Court came under fire from the newly elected Law and Justice government in 2015.64 Courts deciding constitutional disputes should be cautious because the losing party in any case will be displeased.65 Careful calibration is necessary in fashioning how judges are selected, their tenure in office, and processes for removal, along with how 58

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63 64

65

S. Basabe-Serrano, “Determinants of Judicial Dissent in Contexts of Extreme Institutional Instability: The Case of Ecuador’s Constitutional Court,” Journal of Politics in Latin America 6 (2014), 83–107. G. Vanberg, “Establishing and Maintaining Judicial Independence,” in K. E. Whittington, R. D. Kelemen and G. Caldiera (eds.), Law and Politics (Oxford: Oxford University Press, 2008), pp. 99–118. S. Amaral-Garcia, N. Garoupa, and V. Grembi, “Judicial Independence and Party Politics in the Kelsenian Constitutional Courts,” Journal of Empirical Legal Studies 6 (2009), 381–404. A. Sajó, “Reading the Invisible Constitution,” Oxford Journal of Legal Studies 15 (1995), 253–267. L. Sabaliumnas, “Comparative Perspectives on Judicial Review in Lithuania,” Europe-Asia Studies 48 (1996), 783–796. Horowitz, Constitutional Courts. R. D. Kelemen and M. A. Orenstein, “Europe’s Autocracy Problem,” Foreign Affairs, January 7, 2016, www.Foreignaffairs.com/articles/Poland/2016-01-07/. Tushnet, Advanced Introduction to Comparative Constitutional Law.

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constitutional review decisions can be reversed and the effects of the invalidation of laws. The presence of constitutional review in a political system implies that the court or courts will only referee, but achieving the ideal of guardian constitutional judges requires that some checks must exist to hold the judges to account or to encourage, if not impose, selfcontrol on judges.66 The most effective check on excessively aggressive judges lies in creating a system wherein courts exercising constitutional review must confront roughly equivalent countervailing powers. Such a configuration can similarly serve as an incentive for courts to harness impulses to substitute their policy preferences over those of electorally accountable politicians except when a clear breach of constitutional principles has occurred. The range of judicial discretion allowed by constitutional design should also include the option not to decide certain categories of cases. Any court exercising constitutional review, particularly if judges are acting as guardians, should be sufficiently politically and strategically savvy to acknowledge that they act within a democratic framework and act only with a legal, not an electoral, mandate. Most observers of constitutional courts posit the separation of powers game as one played between legislative and executive powers, but if courts can interpret the constitution they also become veto players67 and enter the equation,68 but only if they are not “absorbed” into the “unanimity core” of other veto players.69 Outside of parliamentary regimes, the executive is clearly a player and, even within parliamentary systems, a number of variations are possible for legislative-executive interactions.70 That is particularly true in parts of Latin America71 and Africa,72 where hyper-presidentialism has occurred. But courts can also serve less as a veto point in the political scheme and more of a coalition partner, relying on a partnership with at 66

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68 69 70

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C. D. Kenney, “Horizontal Accountability: Concepts and Conflicts,” in S. Mainwaring and C. Welna (eds.), Democratic Accountability in Latin America (Oxford: Oxford University Press, 2003), pp. 55–76. G. Tsebelis, Veto Players: How Political Institutions Work (New York: Russell Sage Foundation, 2000). M. M. Taylor, “Veto and Voice in the Courts,” Comparative Politics 38 (2006), 337–355. Tsebelis, Veto Players. M. Laver and K. A. Shepsle, Making and Breaking Governments (Cambridge: Cambridge University Press, 1996). S. Gloppen, B. M. Wilson, R. Gargarella, E. Skaar, and M. Kinander, Courts and Power in Latin American and Africa (New York: Palgrave Macmillan, 2010). P. Vondoepp, “The Problem of Judicial Control in Africa’s Neopatrimonial Democracies,” Political Science Quarterly 120 (2005), 275–301.

  



least one other institutional player at the national level to achieve effectiveness and efficacy;73 some courts, like the Italian Constitutional Court, “never sing[] solo,” but always acts as “a member of a choir, within which many other institutional actors have their parts as well.”74 Courts can only invalidate, not initiate, policies except by the process of eliminating options. When courts and legislatures act together, building on what the other has done and anticipating what the other might need, a constructive policy process emerges in which courts play a role, but not the leading one. Legislatures and courts can also engage in destructive processes, whereby each works at cross-purposes with the other, undoing what the other proposed but replacing it with a weaker foundation. The former may be seen in how the US Supreme Court and Congress worked constructively on environmental policy, but destructively in the policy area of campaign finance.75 Whether intentionally or not, the two institutions can further a single policy agenda or sabotage it. The essence of horizontal accountability rests in the fact that both the subjects and the objects of answerability are state authorities and limited strictly to actions or inactions as defined by law.76 The reciprocal oversight by other agents of the state relates to unlawful encroachment of one on the authority of another or corruption involving gaining unlawful advantages.77 The complicating factor in this configuration lies with who determines what is lawful and unlawful. Because authority for interpretation and application of law resides in courts, are courts the only judges of their own actions? Horizontal accountability functions most effectively among the executive, legislative, and judicial when the tensions of reciprocal obligations are sufficient to force self-restraint on each.78 When each actor knows that it must anticipate the potential reactions of the others, a form of mutual self-discipline is imposed. Hence, the coalition analogy: Courts exercising constitutional review are most likely to act in a restrained 73

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M. L. Volcansek, “Constitutional Courts as Veto Players,” European Journal of Political Science 39 (2001), 347–372. V. Barsotti, P. G. Carozza, M. Cartabia, and A. Simonchini, Italian Constitutional Justice in Global Context (Oxford: Oxford University Press, 2016), p. 235. G. Silverstein, Law’s Allure: How Law Shapes, Constrains, Saves, and Kills Politics (Cambridge: Cambridge University Press, 2009). Kenney, Horizontal Accountability: Concepts and Conflicts. O’Donnell, Horizontal Accountability: The Legal Institutionalization of Mistrust. Vibert, The Rise of the Unelected.

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manner when confronting a united executive-legislative coalition.79 By the same reasoning, if at least one of the other two powers acts in partnership with the court, then the court’s decisions carry more political clout and also gain some democratically or electorally derived legitimacy. Relationships among powers of government need not be zero-sum games, whereby courts gain power through exertion of constitutional review at the expense of the other authorities or vice versa.80 When all branches, or at least two, act in concert to further government policies, the constitutional framework grows stronger and engagement develops constructively.81 Enforcing accountability for constitutional courts in ways that do not undermine independence and its corollary of impartiality becomes more muddied because judges can claim no direct democratic mandate. Constitutional courts are, though not elected, vertically connected to the public in two ways: In most systems someone other than the judges must institute constitutional litigation, and, if countervailing powers are in place, the people’s elected government representatives must either enforce or block implementation of constitutional court decisions. Because of the peculiar characteristics of courts, they are only indirectly vertically accountable to society, but courts can and do seek vertical support from the public.82 Definition of the terms, conditions, and selection of judges; jurisdictional overrides; and access are important in creating a viable body to exercise constitutional rule in new democracies. Presumably democratic elections create vertical accountability for executive and legislative authorities because citizens can hold officeholders to account through elections that relay the public voice through representatives. Political parties serve, however, as the organizing and channeling vehicles through which the citizens speak. Unless an electoral system functions to encourage competitive elections and rotation in power, constitutional review may be a dead-letter or a hyperactive court may result. Neither alternative is desirable. 79 80

81 82

Volcansek, Constitutional Courts as Veto Players. D. Kapiszewski, G. Silverstein, and R. Kagan, “Expanding Judicial Roles in New or Restored Democracies,” in D. Kapiszweski, G. Silverstein, and R. Kagan (eds.), Consequential Courts (Cambridge: Cambridge University Press, 2011), pp. 1–44. Silverstein, Law’s Allure. J. K. Staton, “Constitutional Review and the Selective Promotion of Case Results,” American Journal of Political Science 50 (2006), 98–112; J. N. Krehbiel, “The Politics of Judicial Procedures,” American Journal of Political Science 60 (2016), 1–16.

  



Horizontal accountability functions well only if vertical accountability works. Elections are but a clumsy mechanism to enforce political accountability; they occur only intermittently, voters lack sufficient information to assess performance, votes are often cast for the least bad option, and no one can insure that candidates, once elected, will act as they promised.83 Political parties emerge, as a result, as an essential link between the electorate and public officials; party labels offer voters cues at the ballot box, aggregate interests to win elections, and gain power and to make policy.84 One-party dominance, however, erases all vestiges of both electoral and horizontal accountability. Conversely, highly fragmented political conditions invite or even force constitutional courts to enter into the political arena.85 Competitive elections tend to render legislative policies transparent and require that an opposition party or parties always credibly challenge and thereby force even a dominant party to contemplate policies that appeal to voters.86 Moreover, when the public is aware of legislative and judicial considerations of a policy, public support can enhance judicial authority.87 The precise electoral system that will encourage both vertical and horizontal accountability without sacrificing governability obviously varies by country and will be driven by history, culture, and social cleavages. Nonetheless, crafting an electoral system that nurtures sufficient tension to accommodate viable horizontal accountability among the legislative, judicial, and executive also creates space, what Ginsburg called “institutional tolerance zones,”88 for independent, guardian-style exercise of constitutional review. Fragmented political systems afford more latitude for judicial systems to exert political power89 and can lead to gridlock, which may motivate those trying to secure change in the status 83

84 85

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S. Mainwaring, “Introduction,” in S. Mainwaring and C. Welna (eds.), Democratic Accountability in Latin America (Oxford: Oxford University Press, 2003), pp. 3–33. H. Daalder, State Formation, Parties, and Democracy (Colchester, UK: ECPR, 2011). J. Ríos-Figueroa, “Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994–2002,” Latin American Politics and Society 49 (2007), 31–57. G. A. Almond and G. Bingham Powell Jr., Comparative Politics (New York: Harper Collins, 1996). A. Dyevre, “Unifying the Field of Comparative Judicial Politics,” European Political Science Review 22 (2010), 297–327. T. Ginsburg, Judicial Review in New Democracies (Cambridge: Cambridge University Press, 2003). J. Ferejohn, F. Rosenbluth, and C. Shipan, “Comparative Judicial Politics,” in C. Boix and S. C. Stokes (eds.), Comparative Politics (Oxford: Oxford University Press, 2007), pp. 727–752.

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quo to resort to constitutional review rather than legislative majorities or compromise.90 In such situations, politicians may also find themselves unable to muster the forces to counteract a politicized court.91 A system of three-way equilibrium constrains constitutional courts to their role of setting boundaries for legislative or executive actions. However, the equilibrium breaks down when one party dominates as in Italy (1952–1994), Japan (1952–2009), and Mexico (1929–1994). Short durations of one-party dominance allow that party to gain control over the constitutional court that even supermajority appointments and life tenure (assuming a mandatory retirement age) cannot overcome. Likewise, levels of political fragmentation that result in legislative-executive gridlock can encourage an overly zealous, political constitutional court. No party or government power can check a constitutional court that may be tempted to step into a political vacuum, and the disgruntled parties are more likely to litigate policy questions when political processes become unable to resolve them. The political process, once excessively judicialized, can find itself mired in excessive legal arguments in the legislative chambers. Courts then become politicized.

Conclusion Definitions of a constitutional court’s jurisdiction and methods of appointment and tenure can only set the de jure limits for a court’s independence and authority. Reality will be determined by the political process, the interplay between competing government powers. Because the democratic voice of the voters is channeled through political parties, the constitutional design of an electoral system will in turn drive the character and number of political parties on the playing field. A clear distinction emerges in the literature between mature and nascent democracies in the accepted, expected, and tolerated behavior of constitutional courts. In established democracies the rules are clearer perhaps, but also those exercising constitutional review likely have built a reservoir of public support and legitimacy that deters disgruntled politicians.92

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H. Shambayati and E. Kirdiş, “In Pursuit of ‘Contemporary Civilization’: Judicial Empowerment in Turkey,” Political Research Quarterly 62 (2009), 767–780. Ferejohn, Judicial Power. Epstein et al., The Role of Constitutional Courts.

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Even so, “[C]ourts cannot consistently buck clear trends in public attitudes and expect to maintain their independent status.”93 If judges are motivated to restrain themselves, act prudently and strategically,94 and recognize that legislatures are better placed to adapt to social change,95 constitutional courts in new democracies can accumulate the requisite public support and respect to exercise their guardian role. This occurs most often when countervailing powers are in play. Otherwise, resort to the legal process and constitutional review becomes no more than a means of gaining time because of the notorious slowness of the legal process96 or judges, acting as legislators, become seen as taking “the law in their hands as if there was nothing more to it than having a winning hand.”97 93 94 95 96 97

Vanberg, Establishing and Maintaining Judicial Independence. L. Epstein and J. Knight, Choices Justices Make (Washington, DC: CQ Press, 1998). Landfried, Constitutional Review and Legislation. J. Linz, The Breakdown of Democratic Regimes (Baltimore: Johns Hopkins Press, 1998). G. Sartori, The Theory of Democracy Revisited (Chatham, NJ: Chatham House Publishers, 1987), p. 326.

4 European Judicial Appointments Reform A Neo-Institutionalist Approach

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Introduction The relationship between the legitimacy, effectiveness, and methodology of the two great European courts – the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) – is decidedly opaque. Indeed, one would be hard-pressed to find any official European pronouncement that overtly targets these three issues, links them clearly together, and takes an affirmative stance with regard to how they should properly be aligned. To examine how leading European judicial and political actors conceive of the links between the legitimacy, effectiveness, and methodology of the ECJ and the ECtHR is therefore to engage in a decoding exercise: One must first hunt for adjacent policy debates that address some of these issues and then piece together how these assorted debates link the issues to each other, often in rather oblique and implicit ways. The debates over reforming the judicial appointments processes to the ECJ and the ECtHR – when combined with those concerning judicial independence, judicial quality, and judicial councils – offer a promising opportunity for engaging in such an analytic exercise. In 2009–2010, these debates culminated in a nearly simultaneous set of developments: Both the European Union and the Council of Europe adopted new procedures that required judicial candidates to the Luxembourg or Strasbourg courts to be vetted by newly created blue-ribbon panels of experts. Why did these reforms come to pass? What do they tell us about how the key domestic and European players conceive of the legitimacy, effectiveness, and methodology of the two great European courts? And what are we to make of these judicial appointments’ debates and reforms? There are many ways to try to make sense of the debates and reforms undertaken in 2009–2010. I have recently published a book chapter that 

   



puts forward a predominantly intergovernmentalist account of these European developments.1 This chapter builds on that account by offering a predominantly neo-institutionalist perspective. Rather than focusing primarily on state actors and the national interests they seek to promote, this neo-institutionalist approach trains its attention primarily on the institutional players who populate this drama. These institutional actors range from national institutions (such as national judicial councils) to European ones (such as the new blue-ribbon judicial appointments panels), to European institutions composed of national representatives (such as the Committee of Ministers of the Council of Europe). This chapter examines the European reforms as a phenomenon that reproduces familiar institutional forms even as it represents the outcome of relatively unpredictable and unintended institutional actions. The chapter concludes on a cautionary note: It questions whether the current package of European reforms is likely to have much effect on the overall legitimacy of the European high courts, even if it might in some circumstances impact upon their effectiveness and methodology.

Historical Developments This chapter treats the rise of European judicial power as a given. The story of the emergence of the ECJ as a major player in the European Union’s development; its shrewd and decisive action during long stretches of European legislative stagnation; its elaboration of the seminal doctrines of the supremacy and direct effect of European law; its recruitment of the domestic courts in the construction of a legalized and judicialized Europe; and thus of its pivotal role in the very constitution of Europe, is simply too well-known to rehearse again here.2 The rise of the ECHR as a major policy player may be somewhat more recent, but has certainly not gone unnoticed either, given the Strasbourg Court’s 1

2

See M. Lasser, “Judicial Appointments, Judicial Independence and the European High Courts,” in S. Rodin and T. Perisin (eds.), The Transformation or Reconstitution of Europe: The Critical Legal Studies Perspective on the Role of the Courts in the European Union (London: Hart, 2018), pp. 121–122. See, e.g., A.-M. Slaughter, A. Stone Sweet, and J. Weiler (eds.), The European Court and the National Courts – Doctrine and Jurisprudence: Legal Change in Its Social Context (Oxford: Hart Publishing, 1998); J. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999); K. Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford: Oxford University Press, 2001).

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jurisdiction over such thorny issues as politically charged policing practices, gay rights, prisoner voting rights, Iraqi detentions, and so on.3 Even if one leaves aside the loaded arguments over the use of the term constitutional, no one can reasonably deny that the ECJ and the ECtHR have played a major formative role in the ongoing development of the European legal and political landscapes, on both the structural and the substantive fronts.4 Given the evermore conspicuous rise of European judicial power, it is not terribly surprising that the ECJ and the ECtHR should have received increasing levels of regulatory attention. Indeed, this attention could prove quite negative, including such blatant attempts to contain this judicial power as the three-pillar structure of the Treaty of Maastricht, which quite plainly sought to limit the capacity of the ECJ to intervene in such sensitive policy domains as foreign policy and military matters (the second pillar’s Common Foreign and Security Policy) and criminal justice and cooperation in civil matters (the third pillar’s Justice and Home Affairs).5 These long-standing power dynamics should prompt us to put the 2009–2010 judicial appointment reforms in some historical perspective. Those reforms did not fall suddenly from the sky. To the contrary, they were part of a much longer and more elaborate set of interwoven debates and reforms over such issues as judicial independence, judicial qualifications and quality, gender balance on the European bench, judicial councils, and so on. Viewed in this more holistic perspective, the judicial appointments debates and reforms should be dated not to the 2009–2010 3

4

5

Ireland v. UK, Application (5310/71) [1978] ECHR 1; Dudgeon v. UK, 45 Eur. Ct. H.R. (ser. A), 14 (1981); Hirst v. UK (No 2), [2005] ECHR 681; Al-Jedda v. UK (27021/08) [2011] ECHR 1092. For more on the debates over the use of the term constitutional to describe the European courts and treaties, see, e.g., F. Jacobs, “Is the Court of Justice of the European Communities a Constitutional Court?,” in D. Curtin and D. O’Keeffe (eds.), Constitutional Adjudication in European Community and National Law (Dublin: Butterworth, 1992), pp. 25–32; A. Arnull, “A Constitutional Court for Europe?,” Cambridge Yearbook of European Legal Studies 6 (2003–2004), 1–34; L. Azoulai, “Le rôle constitutionnel de la Cour de Justice des Communautés européennes tel qu’il se dégage de sa jurisprudence,” Revue trimestrielle de droit européen 44.1 (2008), 29–45; A. Stone Sweet, “A Cosmopolitan Legal Order: Constitutional Pluralism and Rights Adjudication in Europe,” Global Constitutionalism 1 (2012), 53–90. Martin Shapiro has biting words on this exclusion of jurisdiction. See M. Shapiro, “The European Court of Justice,” in P. Russell and D. O’Brien (eds.), Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville and London: University of Virginia Press, 2001), pp. 273–300 [297].

   



period that culminated in the creation of the expert panels to vet judicial candidates to the Luxembourg and Strasbourg courts, but at least to the mid-1990s, when these issues first emerged in what would become a long and often repetitive series of debates and reforms. Nor, for that matter, did the establishment of the expert panels in 2009–2010 put an end to developments on these fronts. As we shall see, the panels and their institutional interlocutors have continued to press the debates and reforms forward.

The Prehistory From the very inception of the two European high courts, the member state governments effectively controlled judicial appointments to Luxembourg and Strasbourg with little in the way of interference. The 1957 Treaty of Rome declared that appointment to the ECJ was to be made “by common accord of the Governments of the Member States for a term of six years.”6 Although this language suggests that any member state could veto the appointment of the judicial candidate proposed by any other, the reality was effectively the opposite: Every government could freely appoint its own judge, lest it play tit for tat with any government inclined to challenge the appointment. In theory, appointment (formally: “election”) to the ECtHR was somewhat more complicated, as it called for the Parliamentary Assembly of the Council of Europe (PACE) to elect the judge from a list of three candidates put forward by the member state. Once again, however, the reality was more cut and dried. National governments could easily make their preferences known, and because the PACE was composed of representatives of national parliaments, its membership was hardly inclined to override the revealed governmental preferences of neighboring parliamentary democracies. The establishment in 2009–2010 of the expert vetting panels for the two European high courts broke quite visibly with this long-standing tradition of more or less total national governmental control over European judicial appointments. But the seeds of this seemingly sudden transformation had been germinating for some 15 years. Although it was Article 255 of the 2009 Treaty of Lisbon that formally established the ECJ’s vetting panel (appropriately – if unimaginatively – known as the Article 255 Panel), debates over reforming the appointments process date 6

Treaty of Rome, Article 167.

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 

back at least to 1995, when the ECJ produced a report in preparation of debates over the eventual Treaty of Amsterdam, in which the Court openly discussed the possibility of moving to a longer, nonrenewable judicial term of office.7 And the idea of a vetting panel was first formally proposed by the “Ole Due Report,” commissioned in 1999 by the European Commission: The Working Party would suggest that, to ensure the smooth working of both courts, the term of office of their Members should be increased to twelve years as from the date of actual appointment and that this term should not be renewable. The Working Party would also suggest that the appointment of all Members of the Court of Justice and the CFI should be scrutinised on the basis of a comprehensive file submitted by each Member State. To assist the Member States in their deliberations, an advisory committee consisting of highly-qualified independent lawyers should be set up to verify the legal competence of candidates.8

The debates over reforming ECJ appointments thus long precede the establishment of the 255 Panel. Developments in Strasbourg date back a little further yet and led to greater intervening reforms. These debates and reforms date from roughly 1994, that is, exactly when the Committee of Ministers was signing onto Protocol 11 to the European Convention on Human Rights, which finally established a “new,” permanent, full-time, and single Court with compulsory jurisdiction over individual complaints.9 That same year, the Committee of Ministers passed its recommendation “On the Independence, Efficiency and Role of Judges,” addressing judicial appointment processes at the national level, which states: All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that,

7

8 9

“Report of the Court of Justice on Certain Aspects of the Application of the Treaty on European Union,” in Court of Justice, 1995 Annual Report, p. 19 (paras. 17–21). http://ec.europa.eu/dgs/legal_service/pdf/due_en.pdf, 51. See Council of Europe, “Explanatory Report to Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Restructuring the Control Machinery Established Thereby,” https://rm.coe.int/CoERMPublicCommonSearchSer vices/DisplayDCTMContent?documentId=09000016800cb5e9.

   



for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.10

The institutions of the Council of Europe then enacted increasingly precise measures directing national governments to adopt this vision when making judicial appointment decisions for both the domestic and the supranational (i.e., European) courts.11 These measures, such as the “Standards Concerning the Independence of the Judiciary and the Irremovability of Judges” eventually passed in 2001 by the Consultative Council of European Judges (which had been established the year before by the Committee of Ministers), not only called for the establishment of formal norms to govern all aspects of the judicial profession (from hiring, to promotion, to discipline) but also for these norms to be applied through “formal procedures” by a formally established “independent authority with substantial judicial representation.”12 Such measures, which had initially been directed at the domestic judiciaries, had rather seamlessly been extended to the domestic selection of European judicial candidates.13 But that was not all: The institutions of the Council of Europe instituted explicit procedural changes for appointment/election to the ECtHR. Judicial candidates were now “to fill in a model curriculum vitae, so that the Assembly will have comparable information at its disposal” when selecting among the three candidates for election. Member state governments were also to transmit these three curriculum vitae in alphabetical order, rather than in order of governmental preference.14 Next, the candidates would “be interviewed by a sub-committee of the Assembly, for their qualities to be assessed,” which

10

11

12

13 14

Committee of Ministers, Recommendation Rec R (94) 12 on independence, efficiency and role of judges (October 13, 1994), 6, www.coe.int/t/dghl/standardsetting/cdcj/CDCJ% 20Recommendations/CMRec(2010)12E_%20judges.pdf (“1994 Recommendation on the Independence of Judges”). See, e.g., PACE Committee on Legal Affairs and Human Rights (Rapporteur: Lord Kirkhill), Report on the procedure for examining candidatures for the election of judges to the European Court of Human Rights 1, Doc 7439, 1403–15/12/95–1-E (1995) (“PACE Report for Examining ECHR Judicial Candidatures”); The European Charter on the Statute for Judges, https://rm.coe.int/16807473ef. Consultative Council of European Judges, “Opinion No 1 on Standards Concerning the Independence of the Judiciary and the Irremovability of Judges,” CCJE (2001) OP No 1 (“CCJE Opinion 1 on the Independence of the Judiciary”). See, e.g., ibid., paras. 55–56. See PACE Recommendation 1429 (1999), 2004 PACE Recommendation 1649 (2004), and PACE Resolution 1432 (2005).



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would then lead to a recommendation to the Assembly.15 These procedural reforms would, the Committee stated, “improve [the PACE’s] own procedure for examining the candidatures and for the selection of candidates, for more efficiency and professionalism.”16 Further measures – including the 1999, 2004, and 2009 PACE Recommendations on “National procedures for nominating candidates for election to the [ECtHR],” “Candidates for the [ECtHR],” and “Nomination of candidates and election of judges to the [ECtHR]”17 – were taken to shape the processes used at the national level to select candidates proposed for election in Strasbourg: The domestic authorities would have to issue a formal call for candidates in the specialized press; establish and apply formal and transparent procedures for the selection of candidates; include at least one woman in their slate of three nominated candidates’; and so on.18 To sum up, the establishment in 2009 and 2010 of blue-ribbon panels of experts to vet judicial candidates proposed to sit on the ECJ and the ECtHR was by no means a freestanding and precipitous development. It was but the next stage – though undoubtedly a particularly important one – in an ongoing process of European judicial reforms.

The Panels Only a few months apart, the European Union and the Council of Europe each set up their own expert panels. Article 255 of the Treaty of Lisbon, which entered into force at the end of 2009, established the European Union’s version for candidates to sit on the ECJ: A panel shall be set up in order to give an opinion on candidates’ suitability to perform the duties of Judge and Advocate-General of the Court of Justice and the General Court before the governments of the Member States make the appointments. The panel shall comprise seven persons chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognised competence, one of whom shall be proposed by the European Parliament. The Council shall 15 16 17

18

PACE Report for Examining ECHR Judicial Candidatures. Ibid. PACE Recommendation 1429 (1999), PACE Recommendation 1649 (2004), PACE Resolution 1646 (2009) on the Nomination of Candidates and Election of Judges to the European Court of Human Rights. See ibid.

   



adopt a decision establishing the panel’s operating rules and a decision appointing its members. It shall act on the initiative of the President of the Court of Justice.19

The Committee of Ministers followed suit with its version a few months later for candidates to sit on the ECtHR: It established a panel “of seven members, chosen from among members of the highest national courts, former judges of international courts, including the [ECtHR] and other lawyers of recognized competence.”20 The panel members would be “geographically and gender balanced” and would be appointed to once renewable three-year terms by the Committee of Ministers, “following consultations” with the president of the ECtHR.21 Despite their obvious historical and institutional parallels, the panels were going to have to operate in somewhat different procedural and political contexts. The more straightforward job fell to the European Union’s 255 Panel. Because each government only puts forward a single judicial candidate for the member states to appoint “by common accord,” it was rather easy to insert the 255 Panel’s vetting work between the governmental proposal and the member states’ decision (in Council) to appoint. In practice, the 255 Panel would receive the government’s proposal of its judicial candidate; interview the candidate in private; and then render its assessment in an opinion that would be forwarded to all the member state governments.22 If so inclined, the member states would then appoint by common accord.23

19

20

21

22

23

Article 255, Consolidated versions of the Treaty on European Union and the Treaty on the functioning of the European Union (Treaty of Lisbon), http://register.consilium .europa.eu/doc/srv?l=EN&f=ST%206655%202008%20INIT. Committee of Ministers, Resolution CM/Res(2010)26 on the Establishment of an Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights (November 10, 2010). Ibid. at paras. 2–3. Furthermore, “Proposals for appointment [to the panel] may be submitted by the High Contracting Parties.” See Council Decision 2010/124/EU of 25 February 2010 relating to the operating rules of the panel provided for in Article 255 of the Treaty on the Functioning of the European Union [2010] OJ L50/18. An important feature of this procedural and institutional setup was that the member state governments would have to decide unanimously to override a negative (or, for that matter, a positive) assessment by the 255 Panel. The 255 Panel has proudly trumpeted that this has never happened. See J.-M. Sauvé, “Selecting the European Union’s Judges: The Practice of the Article 255 Panel,” in M. Bobek (ed.), Selecting Europe’s Judges: A Critical Review of the Appointment Procedures to the European Courts (Oxford: Oxford University Press, 2015), pp. 78–85 [82–83].



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The Council of Europe’s Advisory Panel of Experts on Candidates for Election as Judge to the ECtHR (APE) would, however, be much more difficult to fit into the ECtHR’s judicial appointment process. First, each government would as always put forward three candidates, not one. Second, the APE would not only have to get between the member state governments proposing the candidates and the PACE electing one of them to sit on the Court, but would also have to figure out its relation to the PACE’s Sub-Committee on Elections of Judges to the ECtHR. This powerful subcommittee (now a full-fledged committee) was, as per the 1995 procedural developments, already interviewing the judicial candidates to “assess” “their qualities” and provide a recommendation about the impending judicial election to the PACE as a whole.24 The solution was for the APE to vet the candidates prior to their names being forwarded to the PACE for election, but to do so based solely on the basis of their paper records. If the APE found any of the proposed candidates unsuitable to sit on the Strasbourg Court, it would inform the proposing government in a confidential manner, and matters would proceed from there.25 Once established, however, both panels proved remarkably forceful in the discharge of their vetting tasks. For its part, in its first four years of operation (2010–2013), the Article 255 Panel rejected almost a quarter of all new judicial candidates put forward by the member states to sit in Luxembourg.26 This is an impressive statistic, given that until the Treaty of Lisbon came into effect in 2010, “[N]o nominee was ever officially rejected in the fifty plus years since the creation of the ECSC, although the governments of the Member States theoretically possessed the power to refuse to grant their ‘accord’ to any nomination.”27 24

25 26

27

PACE Report for Examining ECHR Judicial Candidatures. See supra text accompanying note 15. Committee of Ministers, Resolution CM/Res(2010)26 at para. 5. Third Activity report of the panel provided for by Art 255 of the Treaty on the Functioning of the European Union Activity Report, SN 118/2014 at 9. That rejection rate fell to one out of every six candidates in the 2014–2016 period. See Fourth Activity Report of the panel provided for by Art 255 of the Treaty on the Functioning of the European Union, https://curia.europa.eu/jcms/upload/docs/application/pdf/2017–03/rap port_activite__c255_-_en.pdf. Though this rate is a little lower, it still represents a very healthy percentage of the candidates, given that the member states had most certainly been put on notice by then about the panel’s willingness to reject candidates. T. Dumbrovsky, B. Petkova, and M. van der Sluis, “Judicial Appointments: The Article 255 TFEU Advisory Panel and Selection Procedures in the Member States,” Common Market Law Review 51 (2014), 455–482 [458].

   



Meanwhile, the APE was every bit as active. Although the precise numbers are fairly difficult to piece together with certainty (given the intentional opacity of the APE’s public report of its activities), one can conclude that in its three-year term of operation, the APE found less than half (8 of 17) of the member state lists of three candidates to be suitable without further ado. It “requested additional information” for 20 of the 51 candidates, which suggests that it deemed some 40 percent of all candidates to be questionable to one degree or another. Ultimately, it concluded that 7 of 46 candidates were formally unqualified and another five remained suspect (as the APE was – for reasons we will discuss in the following text – never in a position to give its final assessment).28 As in the Luxembourg context, the vetting panel had therefore been extremely active and forceful. Far from performing a merely symbolic (never mind rubber-stamping) role, both panels have exercised their powers aggressively, rejecting a substantial percentage of judicial candidates put forward by the member states to sit on the ECJ and the ECtHR.

An Intergovernmentalist Explanation There are many ways to try to make sense of the judicial appointments debates and reforms that ultimately led to the establishment of the vetting panels in 2009–2010. Arguably the most compelling is intergovernmentalist in orientation, focusing primarily on state actors and the national interests they seek to promote. But such an explanation is initially counterintuitive. Why would member state governments that had intentionally established and preserved judicial appointments mechanisms designed to maximize their capacity to select their preferred judges suddenly decide to hamper their capacity to do so in the future? In this part, I will only briefly summarize my intergovernmentalist explanation. I do so to ground the neo-institutionalist explanation that is the true focus of this chapter.29 The key to understanding the advent of the European judicial appointments reforms is to shift one’s focus from the 2009–2010 establishment 28

29

Advisory Panel of Experts on Candidates for Election as Judge of the ECHR, Final Activity Report for the attention of the Committee of Ministers, Advisory Panel (2013) 12EN (December 11, 2013). For a more detailed exposition of this intergovernmentalist reading, see Mitchel Lasser, “Judicial Appointments, Judicial Independence and the European High Courts.” The fullblown version will appear in M. Lasser, Judicial (Dis-)Appointments: European Judicial Independence, Quality and Reform (forthcoming).



 

of the vetting panels to the 1990s, when the judicial appointments debates and reforms began in earnest. This historical perspective, suggested in the preceding “Historical Developments” section, forces the observer to recognize that the central motivating historical events lie in the fall of the Berlin Wall in 1989. Although 2004 marks the magical date for the European Union’s large-scale Eastern enlargement, almost all the countries of central and Eastern Europe formally applied for admittance into the European Union sometime in the mid-1990s. The sheer magnitude of the impending enlargement and the simplicity of the resulting math suffice to convey the daunting political realities that faced the existing European Union member states. In 1995 and 1996, when the European Union only possessed 12 member states, no less than 10 former Eastern Bloc countries formally applied for accession to the European Union.30 The political risks were obviously colossal, even if their exact implications were less than obvious. The resultant uncertainty posed problems that could – with some creativity, if perhaps somewhat less effectiveness – be addressed within the political and institutional domains. The voting rights of the new member states within the European Union political institutions could be (and indeed were) fiercely contested and bargained over. And in an unabashedly protectionist move, the application of the European Union’s cherished free movement norms was intentionally delayed for up to seven years, much to the detriment of the new member states’ labor force.31 But the radical instability and uncertainty threatened by the Eastern enlargement could not be so readily addressed and managed in the judicial arena. Both the ECJ and ECtHR functioned on the classic basis of appointing one judge per member state. This meant that both courts would almost double in size virtually overnight.32 And unlike in such 30

31

32

In chronological order, those countries were Hungary, Poland, Slovakia, Romania, Latvia, Estonia, Lithuania, Bulgaria, Czech Republic, and Slovenia. See http://europa.eu/legisla tion_summaries/enlargement/2004_and_2007_enlargement/e50017_en.htm. See European Commission, FAQ on the Commission’s free movement of workers report, MEMO/06/64, Brussels, 8th February 2006, http://europa.eu/rapid/press-release_ MEMO-06–64_en.pdf. See also G. Vobruba, “Borders within the Dynamism of Europe: European Migration Regimes between Exclusion and Inclusion,” in D. Leal and N. Rodríguez (eds.), Migration in an Era of Restriction and Recession: Sending and Receiving Nations in a Changing Global Environment (Cham, Switzerland: Springer, 2016), pp. 165–174 [168]. Large-scale Eastern accession to the Council of Europe predated European Union accession for the simple reason that it was far easier to sign onto a human rights convention than to integrate into an economic and political union. As a result, 16 Central

   



political institutions as the European Union’s Council or Parliament, the blunt numerical voting power of the Latvian and Slovene judges would be identical to that of their French and German colleagues. Given the tremendous power exercised by the European courts, this could not be help but pose a grave threat to the settled legal expectations of the longstanding member states, such as those painstakingly developed under the rubric of the acquis communautaire. An intergovernmentalist perspective, therefore, suggests that we understand the European judicial appointments reforms as tactically oriented developments designed to manage the far-reaching uncertainty triggered by the mass accession of former Eastern Bloc countries into the European Union and the Council of Europe, compounded by the selfevident power of the two European courts to function as game changers at both the domestic and the supranational levels.33 As soon as we approach the appointment reforms as mechanisms to manage such uncertainty, it becomes evident that several associated debates and reforms need to be addressed as well. The most important and persistent of these debates and reforms are those that center on the theme of “judicial independence.” Tellingly, these debates and reforms also date from the mid-1990s, that is, precisely the era when the former Eastern Bloc countries were signing onto the ECHR and applying for admission to the European Union.34 The judicial independence debates gradually elaborated an ever-expanding set of themes and principles, eventually yielding increasingly precise measures. These debates – typical of the 1990s “transitional democracy” period35 – harped

33

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35

and Eastern European countries joined the Council of Europe and the ECtHR accordingly jumped from 23 to 39 judges in barely six years (from November 1990 to November 1996). There now exists a rich literature that reads judicial independence, especially in the constitutional context, in such a tactical fashion. See, e.g., W. Landes and R. Posner, “The Independent Judiciary in an Interest-Group Perspective,” Journal of Law and Economics 18 (1975), 875–901; Shapiro, “The European Court of Justice”; L. Epstein, J. Knight, and O. Shvetsova, “Selecting Selection Systems,” in S. Burbank and B. Friedman (eds.), Judicial Independence at the Crossroads: An Interdisciplinary Approach (Thousand Oaks, CA, London, New Delhi: Sage, 2002), pp. 191–226; R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004). See, e.g., Committee of Ministers, 1994 Recommendation on the Independence of Judges 23. See, e.g., R. Cooter, ”The Rule of State Law and the Rule-of-Law State: Economic Analysis of the Legal Foundations of Development,” in Annual World Bank Conference on Development Economics 1996 (Washington, DC: The World Bank, 1997), pp. 191–217;



 

on the importance of a powerful and independent judiciary to a properly functioning constitutional democracy.36 Explicitly targeting “countries which do not have other long-entrenched and democratically proved systems” for curtailing “undue political influence” over judicial appointments,37 these arguments came to insist – in a manner that was, however, by no means typical of Western European legal traditions – on the constitutional entrenchment of judicial independence;38 on independent judicial decision-making free of party, executive, legislative, or other improper influence; on the establishment of judicially dominated judicial councils that would apply formally established norms on the basis of formally established procedures to govern all aspects of judicial appointment, training, promotion, and discipline; and so forth.39 And it did not take long for these judicial independence demands – complete with their institutional and procedural entailments – to be transferred from the domestic to the European arenas, leading to increasingly detailed requirements regarding judicial appointments to the European courts.40 To these judicial independence measures, one should add the flurry of demands regarding judicial competence and quality, which led to the establishment of the two expert panels for vetting judicial candidates and to their eventual elaboration of detailed substantive criteria for their assessment.41 All these measures can and should be read as tactically savvy mechanisms for managing the political and legal uncertainty generated by the

36

37 38

39

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41

M. Golding, ”Transitional Regimes and the Rule of Law,” Ratio Juris 9 (1996), 387–395; A. Rapaczynski, “The Rule of Law in Theoretical and Comparative Perspective,” in R. Michener (ed.), The Balance of Freedom: Political Economy, Law, and Learning (St. Paul, MN: Paragon House, 1995), pp. 81–106. See, e.g., Committee of Ministers, 1994 Recommendation on the Independence of Judges (2). See ibid. See Venice Commission, “Report on the Independence of the Judiciary – Part I: The Independence of Judges,” CDL-AD(2010)004 (para. 82). See, e.g., CCJE, Magna Carta of Judges (Fundamental Principles) CCJE (2010) 3 final (17 November 2010); CM/Rec(2010)12 (paras. 44–58). See PACE Recommendation 1429 (1999), PACE Recommendation 1649 (2004), PACE Resolution 1432 (2005), PACE Committee Report on the Procedure for Examining Candidatures, PACE Resolution 1646 (2009) on the Nomination of Candidates and Election of Judges to the European Court of Human Rights. See, e.g., European Charter on the Statute for Judges, DAJ/DOC (98) 23 (1998) (para. 1.1); Record of the meeting on 17 February 2003 of the discussion circle on the Court of Justice, CONV 573/03, http://european-convention.europa.eu/pdf/reg/en/03/cv00/ cv00573.en03.pdf; First Activity report of the panel provided for by Art 255 of the Treaty on the Functioning of the European Union, Brussels 17 February 2011, 6509/11 Cour 3 Jur 57 (“First Annual Report”), 8–11.

   

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mass accession of former Eastern Bloc countries into the European Union and the Council of Europe. The key to doing so, however, depends on making two distinctions. The first distinguishes between the domestic and the European levels of the judicial appointments and independence debates. The second distinguishes between the institutional and the individual levels of the judicial apparatus. When combined, these two distinctions allow us to see that these judicial independence measures function primarily on the domestic (rather than the European) plane and on the individual (rather than the institutional) level. That is, the ECJ and the ECtHR have been, by almost all accounts, tremendously powerful institutional players in the European legal and political arenas. Time and again, they have handed down rulings that have fundamentally altered the European and domestic constitutional orders, both structurally and substantively. But the tremendous power of these courts has traditionally been coupled with a significant vulnerability of their judges when they function as individuals relative to their own governments. These judges have had to depend on governmental support (1) of their candidacies to be appointed to the European courts in the first place; (2) of their reappointment to those positions at the end of their judicial terms; and (3) of their successful reinsertion into the domestic judicial, governmental, or professorial hierarchy upon their return home. As can readily be seen, this combination of institutional power and individual vulnerability only magnified the instability provoked by mass Eastern accession. If the new member state governments from Central and Eastern Europe could appoint judges that would be dependent on their goodwill, and if those judges were going to represent almost half of the ECJ and ECtHR bench, then the long-term stability of the European acquis was necessarily put into question. Once viewed in this manner, it takes little imagination to understand the tremendous interest of the existing European member states to institute judicial independence measures that would insulate insofar as possible the new European judges from their newly acceded governments. This tactical mechanism would help to entrench existing European arrangements against judicial reversal at the hands of Eastern European judges beholden to their as-yet unproven governments. The protection thus provided by the judicial independence measures was then compounded by the judicial competence and judicial quality measures that were enacted for both courts. These measures, developed before and after the establishment of the expert panels, demanded that

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 

judicial candidates possess threshold levels of seniority, experience, language skills, and so on. Such professional requirements would significantly impact upon the capacity of the new member state governments to play favorites between possible judicial candidates on ideological or other grounds and to demand fealty in return. After all, the total population of seven of the eight Central and Eastern European countries that joined the European Union in the great eastern accession of 2004 (total population 33.5 million) is dwarfed by the population of Spain (46 million);42 and seven of the eight smallest European Union member states by population joined the European Union in or after that accession.43 Furthermore, those new accession states have hardly had the time to train a generation or two of highly qualified European jurists from which to pick and choose judicial candidates. These demographic and educational realities mean that the judicial competence and judicial quality requirements really do limit the sphere of action for the governments of the new accession states from the East in a manner that they simply do not for those of the larger and older member states from the West. Viewed from an intergovernmentalist perspective, therefore, the judicial independence, judicial competence, and judicial quality measures combine to protect the powerful and long-standing Western European states, whose political, economic, and institutional interests had for decades coevolved with the European acquis communautaire.44 They significantly hamper the ability of the new member states to disrupt the legal status quo through tactical judicial appointments. The price that those established member states had to pay for such protection was a certain loss of control over their own judicial appointments. But as the demographic and educational realities suggest, this loss was likely to be relatively minor. And to the extent it was real, it was evidently a price worth paying. 42

43

44

Those seven are the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia, and Slovenia. Poland (pop. 38.5 million) is the one large European Union member state from Central or Eastern Europe. Those countries are Croatia, Cyprus, Estonia, Latvia, Lithuania, Malta, and Slovenia. Luxembourg is the eighth. One might make a similar (if more difficult) argument concerning European acquis humanitaire developed largely by the ECtHR. For the use of the term acquis humanitaire in the international humanitarian law context, see D. Cubie, “Clarifying the acquis humanitaire: A Transnational Legal Perspective,” in D. Caron, M. Kelly, and A. Telesetsky (eds.), The International Law of Disaster Relief (New York: Cambridge University Press, 2014), pp. 338–360.

   



A Neo-Institutionalist Explanation Although the intergovernmentalist analysis provided in the preceding text provides an insightful account of the otherwise perplexing decision of the member states to place restrictions on their own ability to appoint and control their desired judicial candidates, it also faces significant difficulties. The first is that it is not entirely clear which governments one should be considering, never mind which parts of those governments. While it is easy, for example, to imagine why the governments of France and Germany might be interested in imposing judicial independence and quality measures that would limit the Czech government’s capacity to appoint judicial flunkies, it is far less obvious why the Czech government would be interested in doing so. Providing an account for such behavior would require, at the very least, that we question which institutional players within the Czech government might be inclined to support such a project and why. Before we venture into such analyses, we should begin with a more straightforward institutionally oriented observation. The institutional form of the APE and of the 255 Panel – seven prominent jurists of largely judicial background charged with overseeing judicial appointments – did not come out of nowhere. To the contrary, the panels represent the transplantation at the European level of national judicial councils tasked with overseeing a wide panoply of judicial matters, ranging from appointments, to training, to discipline, to organization. Such judicial councils have exploded worldwide, spreading with such success from their initial establishment in France to so much of the world that “the World Bank and other multilateral donor agencies have made judicial councils part of the standard package of institutions associated with judicial reform and rule of law programming.”45 As might be inferred, the spread of the institutional form of the judicial council was not merely a matter of coevolution or of straightforward and enlightened borrowing. In Europe, the first step – taken in the midst of the great wave of Eastern enlargement – was for international/ supranational institutions to encourage the establishment of national judicial councils for the selection of national judges to national courts. Thus, for example, the Committee of Ministers’ 1994 Recommendation on Judicial Independence explicitly declared: 45

N. Garoupa and T. Ginsberg, “Guarding the Guardians: Judicial Councils and Judicial Independence,” American Journal of Comparative Law 57 (2009), 103–134 [109].

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  All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency. The authority taking the decision on the selection and career of judges should be independent of the government and the administration. In order to safeguard its independence, rules should ensure that, for instance, its members are selected by the judiciary and that the authority decides itself on its procedural rules.46

The next step was to propose that national judicial councils also be used as the mechanism to select candidates to serve as judges at the European and international levels.47 Then came the establishment of the Article 255 Panel and of the APE, which were patterned on such national judicial councils but designed to operate at the European level. Following the seemingly inexorable spread of the logic, it was only a matter of time before the leadership of the 255 Panel began not only to refer to the panel as a sort of proto-European judicial council that vetted judicial candidates but also to propose that it play a more active and discretionary role: President Jean-Marc Sauvé openly argued that the panel should take on the task of evaluating and ranking candidates who might respond to an open European call to fill positions on the European Union’s General Court.48 The institutional form of the judicial council had effectively migrated from national councils overseeing national candidacies for national judicial posts, to national councils overseeing national candidacies for European judicial posts, to European councils overseeing national candidacies for European judicial posts, to European councils overseeing open calls for European judicial posts. The first important conclusion to draw from this arc of developments is that it has been ongoing. Even the eventual establishment of the European panels in 2009–2010 did not put an end to the reform process. To the contrary: Once established, the APE and the 255 panels proved enormously ambitious. As we have seen, they immediately rejected or called severely into question about a quarter of all new judicial candidates

46

47 48

Committee of Ministers, 1994 Recommendation on the Independence of Judges, 2. The 1998 European Charter on the Statute for Judges echoed these recommendations. See European Charter on the Statute for Judges, DAJ/DOC (98) 23 (1998) at Parts II–VII. So did the CCJE’s 2001 Opinion on the Independence of the Judiciary. See, e.g., CCJE Opinion 1 on the Independence of the Judiciary at para. 56. J.-M. Sauvé, “Le rôle du ‘comité 255’ dans la séparation des pouvoirs au sein de l’Union européenne,” pp. 10–11, www.conseil-etat.fr/content/download/3672/11044/version/1/ file/261113separation_pouvoirs_droit_union_euro_comite255.pdf.

   



put forward by the member states to sit in Luxembourg and Strasbourg – a sudden sea change in European judicial appointment practice. But they did more. The 255 Panel, for example, took it upon itself to generate an annual report of its activities, when nothing in the treaty or other European measures called for one. As mundane as such an annual report may sound, it was a brilliant institutional coup. The panel’s leadership used this report not only to publicize the panel’s impressive statistics but also to elaborate an extended explanation of the standards the panel had been – and would be – deploying in evaluating the judicial candidates. This explanation, repeated almost verbatim every year thereafter, effectively established and entrenched the norms that govern the judicial appointments to Luxembourg. Substantively, these norms elaborate six measures for assessment that sketch the basic profile of a good European judge.49 Among other qualifications, that judge should have a minimum of 20 years of “discharge of high-level judicial, administrative or academic duties, university degrees (such as a doctorate) and experience of teaching or training, as well as experience as a legal expert or consultant to supreme courts or very important institutions, or participation in scientific associations devoted to the study of law.”50 The panel should be able to recognize “the candidates’ knowledge of the major judicial issues, the challenges involved in the rule of law, and the key aspects of the Union’s legal system and EU law, as well as the candidate’s ability to reflect on the application of this law by Member States’ legal systems, and on the relationships between these systems and European law.”51 Although the Court’s working language is French (no small stumbling block for candidates from Eastern Europe, where German and Russian have been more important for the last 50 plus years), the panel explains that it considers it “an advantage, although not a determining factor,” that a candidate be proficient in “several” of the European Union’s official languages. Indeed, it “may take into consideration published texts written by the candidates in a language other than their mother tongue and, for example, their participation in the work of 49

50

51

“The panel’s assessment . . . is therefore made on the basis of six considerations: the candidate’s legal expertise, professional experience, ability to perform the duties of a Judge, assurance of independence and impartiality, language skills and aptitude for working as part of a team in an international environment in which several legal systems are represented.” First Annual Report, 8–9. Ibid., Candidates for the General Court should possess “twelve or even fifteen years” of experience “to be deemed sufficient.” Ibid.



 

international organisations or in international meetings, seminars or conferences.”52 Finally, the panel assesses the candidate’s “aptitude for working in an international environment,” including the “ability to comprehend the broad categories and principles of the legal systems of the Member States of the European Union.” In short, the panel had dictated a rather detailed, demanding, and distinctive judicial profile. The candidate would very likely be a highly professionalized state actor (either a high-ranking judge or executive branch actor) or experienced academic. Who else would have the ability and opportunity to engage for 20-plus years of reflection on the interface between the European and domestic legal regimes and to publish on such matters, perhaps in foreign languages? And even if such a candidate were an executive branch actor, she or he would be far more likely to be of a technocratic than a political bent, especially given independence requirements. The panel had effectively demanded a 50-year-old judge, academic or high-level civil servant of a highly internationalized kind. Indeed, the panel went even further. Not limiting itself to imposing such substantive requirements, it also made thinly veiled demands on the procedural front: To support its assessment of the candidate’s legal expertise, experience, suitability for the office of Judge, independence and impartiality, the panel may take into account the conditions under which the Member State concerned selected the candidate and, in particular, whether there is a national merit-based selection procedure and, if so, how it is organised (transparency and objectivity of the procedure, involvement of a national selection committee, composition of that committee, and so on). The panel may also take into account other selection procedures offering at least equivalent guarantees, such as choice of the candidate by a Member State’s highest court. It may also check whether the candidate proposed by the Member State government was adopted at the conclusion of the national procedure”53

The establishment of the 255 Panel had led to patently unintended consequences: By cleverly inventing its annual report, the panel had leveraged its screening role to create both substantive and procedural norms out of whole cloth, including selection/nomination procedures henceforth to be deployed at the national level. It was the 255 Panel that was now leading the European Union’s judicial appointments project. 52 53

Ibid., 11. First Annual Report, 7.

   



The APE was no less institutionally ambitious; and judging by the member states’ reactions, one can see all the more clearly just how unintended – and undesired – the consequences really were. Although it was less inclined than the 255 Panel to publish its own set of substantive criteria for successful judicial candidacies, the APE worked to improve its command over appointments to the ECtHR. The APE’s struggle for institutional power exploded into the open very quickly, when it became all too apparent that a large number of governments had no desire to permit the APE to question their choice of judicial candidates effectively. The APE, which had promptly raised objections to a high percentage of the lists of candidates sent to Strasbourg, suddenly found that more and more governments were simply refusing to go along with the APE process in good faith. At first, some member states simply submitted their list of three judicial candidates to the APE and the PACE at the same time, effectively refusing to give the APE the opportunity to vet the candidates before they would be forwarded for PACE consideration and election.54 As if this were not bad enough (and it was), on several other occasions, governments forwarded their lists to the PACE without even waiting for the APE’s opinion. And in yet another case, the government had simply dismissed the APE’s formal determination that one of its candidates was unqualified to sit in Strasbourg: It sent the list unchanged to the PACE for election.55 Worse yet, the PACE elected that candidate to the Strasbourg Court! The APE’s response and its aftermath demonstrate the full extent to which the appointments developments were a function of interinstitutional dynamics, rather than the simple playing out of intergovernmental interests. The APE argued that it should have the effective power to veto the appointment of any judicial candidate it deemed unfit. But the other affected institutions vehemently refused. The PACE – which elects from among each country’s three judicial candidates – already had its own Committee (previously, subcommittee) on the Election of Judges to the ECtHR that interviewed and assessed the suitability of the candidates; and neither this committee nor the PACE as a whole had any interest in having its prerogatives preempted or nullified by the newfangled APE. 54

55

Steering Committee for Human Rights, Ministers’ Deputies Exchange of Views with Mr. Luzius Wildhaber, Chairman of the Advisory Panel of Experts on Candidates for Election to the European Court of Human Rights (4 April 2012), in DH-GDR (2013)005, 5 February 2013 (5). Ibid.

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 

Indeed, the PACE had refused to back up the APE: Instead of refusing to consider candidates until they had been properly vetted, the PACE simply went forward with its elections. Nor, judging by their behavior, were the member state governments overjoyed at the prospect of the APE taking on such powers. As we have seen, a healthy number of governments thumbed their noses at the APE, either by failing to present it with their lists prior to submitting them to the PACE for election or by outright refusing to heed their (negative) judgments. And lest there be any misunderstanding: One of the most embarrassing episodes involved the French government of Nicolas Sarkozy, which refused to pull its political ally Michel Hunault from its list when the APE had found him unsuitable to sit on the ECtHR.56 Such perplexing behavior, which would appear to fly in the face of the governments’ own decision to create the APE in the first place only a few months before, helps to elucidate the institutional features of what may at first blush have been described as governmental decisions. The key to understanding these developments is to recognize that the term government is an extremely broad catchall phrase. In this case, the “French government” includes at least two very distinct sets of institutional players. The first is what might be termed the government proper, that is, the close associates of President Sarkozy and his ministers in Paris. But the second is the set of civil servant actors who act in the name of the French government while serving in assorted regional, supranational, and international institutions. In the Strasbourg context, this means especially the Committee of Ministers. But the Committee of Ministers is the intergovernmental arm of the Council of Europe, is it not? After all, it is composed of the foreign ministers of the contracting parties to the ECHR. This is only partly true: It only meets in such august formation once a year. The rest of the time it is run by ambassadorial permanent representatives and other staff who live in Strasbourg and meet weekly in thematically organized formations and subformations. In other words, the Committee of Ministers is a large institution of senior civil servants, most of whom are long-term executive branch diplomats and legal specialists committed to the ECHR project and its Court. Although these career civil servants hail from the member states, they should not be readily assimilated to the governments that sent 56

N. Engel, “More Transparency and Governmental Loyalty for Maintaining Professional Quality in the Election of Judges to the European Court of Human Rights,” Human Rights Law Journal 32 (2012), 448–455 [451].

   



them to Strasbourg. They are generally very high-grade professionals with significant legal expertise and a commitment to the European human rights project and its institutions, not (as classic intergovernmentalist theory might suggest) national politicians who reside in their national capitals and engage in arm’s-length bargaining in their country’s predetermined self-interest. Indeed, this institutional understanding of the Committee of Ministers helps to explain why and how the APE would have been created in the first place, given that the member states had zealously protected their judicial appointments powers from the very beginning. The answer is that it was the Committee of Ministers, not the governments back home, that established the APE. Indeed, the almost immediate governmental resistance to the APE only demonstrates the institutional divides that lurk beneath the catchall phrase of “government” or “state.” Many of the “governments” in the national capitals objected quite strongly to what those same “governments” – this time in the form of the Committee of Ministers – had done in Strasbourg. And what they had done was to create an elite college of international judges to run interference against judicial appointments decisions made by self-serving national politicians back home. Viewed from this perspective, it is the delegation of authority to national governmental players operating at the European institutional level (e.g., civil servants attached to the Council of Europe) that yielded unintended consequences in the form of the judicial vetting panels (e.g., the APE), which then yielded further unintended consequences, and so forth, leading eventually to increasingly pitched battles between national political actors “back home” and institutions operating at the European level. Indeed, there is also good reason to understand the vetting panels as the institutional outgrowth of the judicial appointments that the national governments have made to the European courts: These judges, now sitting in Luxembourg and Strasbourg, have acted to free themselves from further executive branch authority by calling publicly for the establishment of vetting panels that effectively place judicial authorities in a position to oversee executive branch appointment decisions.57

57

See Letter from Jean-Paul Costa, President of the European Court of Human Rights, addressed to member states’ Permanent Representatives (Ambassadors) on 9 June 2010, in Committee on Legal Affairs and Human Rights (Rapporteur: Wohlwend), Report on National Procedures for the Selection of Candidates for the European Court of Human Rights, PACE document 12391 (6 October 2010) Appendix, http://assembly.coe.int/nw/ xml/XRef/X2H-Xref-ViewPDF.asp?FileID=12764&lang=en.

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 

In short, the European judicial appointments reforms can be seen as resulting from an alliance between two sets of institutional players: knowledgeable civil servants and high-ranking judges who are each committed to the European institutions in which they serve and to the European projects they represent and promote.

Conclusion Although this chapter has stressed a neo-institutionalist over an intergovernmentalist analytic perspective, these methodological approaches should be understood not as alternative, but as cumulative: What creates the momentum for the ongoing European judicial appointments reforms is that some governments and institutional players do understand themselves as playing a game to protect their state interests and the European acquis communautaire and acquis humanitaire against the disruption threatened by mass Eastern accession, while other players understand themselves as trying to improve and empower European judicial institutions and to free them from all misguided political meddling. It is precisely the capacity of the judicial appointments debates to sustain multiple and overlapping projects that gives them their reformist potential and staying power. At the same time, it is important that we recognize what the judicial appointments debates almost invariably obfuscate, namely, that these debates evince a good deal of conceptual/ideological malleability and change. The idea that the judiciary is and should be a full-fledged political power, is comparable in its domestic and European variants, should be cut free from the executive branch power that traditionally operated at both the domestic and the international levels, should control a good bit of its own judicial authority and of its appointments affairs, and so on; These notions hardly reflect preexisting and widely shared norms or practices for any of the European Civilian legal and political orders in question, at either the national or European levels. Such a set of propositions is the product of large-scale changes that need to be understood in constructivist terms: They have been elaborated over time through the interaction between a broad set of different actors operating in divergent institutional contexts. Indeed, it would be a mistake to assume that the meaning of these judicial appointments debates and reforms is stable, never mind settled. To the contrary, for some, the rallying cry of “judicial competence” is used as a means to entrench the European courts, settle their “authority,”

   



and (most often) promote relatively broad and sympathetic readings of their European projects.58 But for others, the promotion of “judicial competence” signals something entirely different: It means selecting judges who would be of sufficient “quality” to understand that the European courts must no longer be “activist” in their readings of European law and its supposed entailments.59 Although the meaning of judicial competence and its consequences is thus very much up for grabs, what is striking is the dominance of the former (“sympathetic”) reading within the judicial, institutional, and academic literatures related to judicial appointments reform.60 Time and again, the authors stress the pressing need to shore up the bases of European judicial authority and legitimacy, primarily through the operation of proper judicial appointments mechanisms, including not only proper judicial selection mechanisms at the national level, but especially proper judicial vetting panels at the European level. Judicial quality, competence, and independence properly assured, the legitimacy of the European courts would apparently follow suit. I would like to suggest in closing, however, that this dominant narrative represents but self-referential professional responses to problems whose dimension far surpasses the professional level. The last 20 years have seen a dramatic rise in overt critiques of the European courts in the popular press, critiques that are strikingly vehement and unabashedly nationalistic in tone.61 These critiques, which have reached their greatest visibility in the British tabloid press, have undoubtedly helped to provoke policy interventions, such as the British attempts to use the Brighton Declaration as a means to disable the ECtHR.62

58

59

60 61 62

See Steering Committee for Human Rights, CDDH Report on the Longer-Term Future of the System of the European Convention on Human Rights, CDDH(2015)R84 Addendum I, www.coe.int/t/dghl/standardsetting/cddh/reformechr/CDDH(2015)R84_ Addendum%20I_EN-Final.pdf. For more on the “activism” of the European courts, see, e.g., P. Neill, The European Court of Justice: A Case Study in Judicial Activism (London: European Policy Forum, 1995); M. Dawson, B. De Witte, and E. Muir (eds.), Judicial Activism at the European Court of Justice (Cheltenham, UK, and Northampton, MA: Edward Elgar, 2013). See, e.g., Bobek, Selecting Europe’s Judges. The Daily Mail represents of course the gold standard in this regard. See https://ukhumanrightsblog.com/2012/04/22/the-brighton-declaration-and-the-meddlingcourt. See also the first draft of the Declaration that sought to limit the ECtHR’s powers, https://ukhumanrightsblog.com/ 2012/03/08/reforming-or-redefining-the-european-courtof-human-rights-noreen-omeara/; http://libertes.blog.lemonde.fr/2012/02/27/menaces-surla-cour-europeenne-des-droits-de-lhomme/; www.bbc.com/news/uk-politics-17201024.

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 

That said, I cannot help but think that it is strikingly myopic to assume that such overheated critiques can be fruitfully addressed “on the merits,” especially through technical adjustments to the European judicial appointments processes. When few know the difference between the ECJ and the ECtHR, can anyone reasonably believe that Brexiteers will come around to the virtues and legitimacy of the European courts if only those courts’ judges have been properly vetted for linguistic competence in French? The radical mismatch between the tenor of the critiques and the nature of the responses could hardly be more striking (or, frankly, more tragicomically revealing). The currently vitriolic focus on the European courts, like the focus on the Commission in days of old, is as a symbol of European power over claimed domestic prerogatives and traditions. To take them literally as earnest substantive critiques is really to miss the point. The old tirades against the Commission never could be usefully addressed by convincing the public that there were no European regulations banning curved cucumbers,63 never mind that an expert vegetable-vetting panel had been set up to regulate the matter in an appropriately professional manner. Another way to think about this dilemma is in classic Weilerian terms. During the 1980s, well-meaning European Union observers argued compellingly that the problem with European legitimacy was that the European Union institutions were structurally undemocratic: European Union political structures had substituted executive for parliamentary authority by transferring domestic parliamentary power to domestic executives operating at the European level (i.e., as the Council). Indeed, they argued, this structural problem was compounded by the Luxembourg Accord, which effectively permitted particular national executives to wield veto power in Council, singlehandedly frustrating the parliamentary will of the rest of the European people. Their solution – which was utterly irreproachable as a matter of formal democratic theory – was to reverse the parliamentary loss both by increasing the legislative authority of the European Parliament and by doing away with the Luxembourg Accord and its attendant veto. Joe Weiler had a devastatingly insightful response. Not only were such critiques beside the point, but their supposed solutions were downright counterproductive. The legitimacy issue was not a problem of formal democratic theory. Indeed, few European citizens could even list the 63

The European Commission maintains an online index of such “Euromyths.” See http:// blogs.ec.europa.eu/ECintheUK/euromyths-a-z-index.

   



European Union institutions to begin with. The problem was instead a matter of social legitimacy: These citizens didn’t really understand themselves as European in the first place. As a result, the prospect of further empowering the European Union to act (regardless of whether it did so through the European Parliament) was only to aggravate the problem; and such European power became all the more threatening if one did away with the comforting notion that national executives could as a last resort “protect” their countries by deploying the veto power promised by the Luxembourg Accord.64 The same set of mentalities remain dishearteningly present today; only this time the fashionable target consists of the ECJ and the ECtHR, rather than “Brussels.” As the recent revelations of the British political class (and, perhaps surprisingly, of the British civil service) make all too clear, however, few indeed are well informed regarding the basics of European governance, never mind the finer points regarding the difference between the jurisdictions, mandates, compositions, judicial terms, and appointments processes of the ECJ and the ECtHR. All that really matters is the vague and familiar sense of disempowerment that comes from some European institution (it matters not which) “imposing” some kind of judgment or rule on a poor defenseless member state. To this recurring and now decades-old feeling of popular alienation, it is cold comfort to respond by promoting the professional competence of the sitting European bench, any more than it would have answered the anti-Brussels tirades of yore by touting the professional competence of high-ranking Commission staff within its specialized Directorates-General. Indeed, one can reasonably question whether the judicial quality measures are even likely to do much to improve the standing of the European Union courts in the eyes of skeptical – if more knowledgeable – domestic legal players. To my mind, perhaps the most intriguing finding of the well-known study by Çalı, Koch, and Bruch on the social legitimacy of the ECtHR is that the Strasbourg Court’s standing with domestic legal elites has more to do with domestic self-perception than with a clear-eyed assessment of European judicial strengths and weaknesses: When “domestic institutions are valued highly or/and the [domestic] human rights situation is assessed as positive,” those local elites are protective of domestic institutional control and suspicious of the quality

64

See J. H. H. Weiler, “The Transformation of Europe,” Yale Law Journal 100 (1991), 2403–2483 [2428–2430, 2473–2474].

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 

of European judges and their decisions.65 This suggests that the European judicial appointments reforms, however well intentioned, may in the end do relatively little to impact (either positively or negatively) upon domestic perceptions of European judicial legitimacy, even in relatively knowledgeable professional quarters. In conclusion, the judicial appointments reforms that resulted in the establishment of the APE and of the 255 Panel in 2009–2010 can and should be understood in several different ways. First, they are geopolitical interventions by member state governments seeking to manage the uncertainty generated by the large-scale accession of former Eastern Bloc countries into the European Union and the Council of Europe. In this guise, they represent thinly veiled moves by longstanding Western European member states to control the governments of new accession states from the East. Second, they are institutional power plays undertaken by assorted domestic and international actors intent on leveraging or limiting the opportunities afforded by European institutional structures. In this guise, they offer unforeseen tactics played by such institutional creations as the APE or the 255 Panel. Third, they are professional and ideological interventions by well-placed judges, academics, and executive actors. In this guise, they represent bold and creative reconstructions of the European legal, political, institutional, and ideological fields by such savvy personalities as Jean-Marc Sauvé. Taken as a whole, however, these interventions generate developments whose path and consequences are so multifaceted, intertwined, and uncertain that they can perhaps best be described as unintended. Finally, taken at their word as measures designed to increase the public legitimacy and authority of the European courts, these interventions might unfortunately be best described as ineffectual. 65

See B. Cali, A. Koch, and N. Bruch, “The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights,” Human Rights Quarterly 35 (2013), 955–984 [976–981].

5 The Law of Democracy and the European Court of Human Rights         .     

Introduction The “margin of appreciation” (MA) is a principal means through which the European Court of Human Rights (ECtHR) sometimes defers to the national democratic and judicial processes within the member states. The doctrine reflects the precarious political position of a supranational constitutional court tasked with applying “human rights” framed in the European Convention on Human Rights in general, universal terms to the differing institutional forms, and cultural understandings of democracy in the signatory states. By acknowledging an appropriate MA in how these rights are understood across different countries, the ECtHR essentially struggles to balance the legitimate role of national democratic self-governance with the legitimate demands of human rights and the European Convention on Human Rights (ECHR). Put another way, the MA reflects the Court’s view that not all human rights recognized in the ECHR should be understood as universal, at least in application. Democratic states can legitimately interpret these rights differently, to some extent. The ECtHR has identified a variety of specific factors that purportedly influence how it applies the MA. Yet underlying these specific doctrinal factors is the more general question of the extent to which rights adjudication in the Court ought to defer to the democratic processes in the member states. But how does the Court understand the nature of democracy? To examine that question concretely, I explore the subset of cases in which the ECtHR is asked to judge the structure of democracy in various For a lengthier analysis of these issues, see R. H. Pildes, “Supranational Courts and the Law of Democracy: The European Court of Human Rights,” Journal of International Dispute Settlement 8 (2017), 1–26. This chapter is a shorter and modestly adapted version of that fuller analysis.

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member states. In an important set of cases, the Court has been asked not to weigh the rights of individuals against state interests in matters like national security, but to determine whether the very processes of democracy are structured in a manner consistent with the ECHR. Among the human rights the Convention expressly protects are some of the central rights of democratic participation: the right to freedom of expression, thought, assembly, and association (but not the right to vote, as discussed in the following text). How does the Court apply these rights to the different ways democracy is institutionalized and structured in various states? Does – or should – the Court embrace the view that there is a universally correct way to structure the rights of democracy? Or does – and should – the Court apply the MA doctrine to the structure of democracy? To shed light on the debates about the proper role of the MA doctrine, this chapter engages that question more directly by exploring how the Court assesses the structure of democracy and democratic rights. The chapter will do so focusing on three areas in which the ECtHR has confronted challenges to the democratic processes of various states: the role of political speech in elections, the rules concerning how elections can be financed, and judgments about who can be excluded from exercising the right to vote. There are other aspects of democratic processes the Court has confronted, such as whether certain kinds of purportedly “antidemocratic” political parties can be banned or restricted under the ECHR, but those cases have already received sufficient attention in the academic literature.1 Consistent with the more activist role the ECtHR began to take on in the 1970s,2 the ECtHR in recent years has taken on the role of determining whether the democratic processes within otherwise democratic states are nonetheless consistent with the ECHR. The Court’s actions in this sphere have been erratic; the pattern of decisions shows a series of forward movements to apply the Convention aggressively, followed by a significant retreat that is difficult to explain or rationalize in purely doctrinal terms. 1

2

See, e.g., S. Issacharoff, “Fragile Democracies,” Harvard Law Review 120 (2007), 1407–1467; P. Harvey, “Militant Democracy and the European Convention on Human Rights,” European Law Review 29 (2004), 407–420. See M. R. Madsen, “The Protracted Institutionalization of the Strasbourg Court: From Legal Diplomacy to Integrationist Jurisprudence,” in J. Christoffersen and M. R. Madsen (eds.), The European Court of Human Rights between Law and Politics (Oxford: Oxford University Press, 2011), pp. 43–61.

       t 

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Instead, the Court has learned that judicial intervention into the way the democratic processes of democratic states are designed can trigger some of the most significant domestic political backlash against a supranational court like the ECtHR of almost any area of law. National polities appear to experience perhaps the most powerful sense of moral ownership over the terms of their own systems of democratic self-governance. As this chapter shows, when the Court intervenes to declare a longstanding aspect of those systems now to be in violation of an evolving ECHR – as the Court interprets it – there has been a powerful reassertion of national self-determination against the Court. This has led, in at least one well-known instance, to the Court’s declarations being affirmatively and aggressively defied by the United Kingdom.3 In other areas, the Court has ended up crafting rules that appear to apply differently in the less powerful than in the most powerful member states. Or the Court has been forced to back down from its most aggressive initial rulings. The first part of this chapter identifies the general conceptual and practical issues that arise from the context of a supranational court seeking to apply the democratic rights in a charter like the ECHR to the democratic systems of nation-states. The second part examines how the ECtHR has played this role in certain key areas involving the organization of democracy. The conclusion raises larger questions about what kind of role the ECtHR ought to play in this area in the future, and what role the MA ought to play, in light of the ECtHR’s experience to date.

General Considerations Involving Constitutionalizing Democratic Politics The question of how to apply individual rights to the processes and structures of democracy is an exceptionally complex one, even for national constitutional courts. Few judicial roles seem more important than protecting the integrity of the democratic process; from a theoretical perspective, it has long been argued that the most justified role for constitutional courts is ensuring that the processes of democratic debate, decision-making, and elections remain open and fairly structured.4 Moreover, the temptation for those currently in power to use that power 3

4

See the discussion of the Hirst case in the section “The ECtHR’s Attempt to Define Democratic Rights.” The first and still most classic statement of this position is J. H. Ely, Democracy and Distrust (Cambridge, MA: Harvard University Press, 1981).

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to structure in their favor the rules of democratic contestation is clear and, by this point in our experience with democracy, well-known.5 The need for judicial protection of the fundamental rights of democratic engagement is widely recognized and reflected in the ECHR. Yet at the same time, an aggressive judicial role in overseeing the way a polity structures its democratic processes can be highly problematic.6 There is general consensus among democratic countries on certain core features of a legitimate democratic system, but beyond this core, there are many diverse ways of institutionalizing and organizing a democratic system – with the differences between proportional representation and first-past-the-post systems being the most immediate and obvious. Any time judges conclude that individual rights are violated by the way a polity chooses to structure its processes, outside of the core area of consensus on the content of these rights, the courts risk freezing in place one vision of proper democratic processes over another. Doing so takes off the table democratic decision-making about how democracy ought to be structured. If the democratic rights courts enforcement were specific enough, this tension might be reduced. But in both domestic constitutions and international texts like the ECHR, these rights are typically framed in highly general terms, such as the right to freedom of expression or to political assembly and association. These texts might also include, as does the ECHR, a limitations clause, which limits the scope of the rights enumerated, but these limitations clauses are also framed in highly general terms. Thus, given the thin guidance available to courts from the texts of charters like the ECHR, judges inevitably have considerable discretion in deciding how the rights of democracy are to be applied in specific cases. And depending on how that discretion is exercised, it can lead courts into dramatic restructuring of a polity’s democratic institutions. In addition, courts run particular risks when they engage with the political process. To the extent there are clear winners and losers in partisan or ideological terms from judicial decisions, there is the likely prospect that courts will be perceived as themselves partisan political

5

6

See, e.g., R. H. Pildes, “The Inherent Authoritarianism in Democratic Regimes,” in A. Sajó (ed.), Out of and into Authoritarian Law (New York: Kluwer Law International, 2003), pp. 125–151. For a general discussion of the conceptual complexities in the judicial application of constitutional rights to the processes of democracy, see R. H. Pildes, “Foreword: The Constitutionalization of Democratic Politics,” Harvard Law Review 118 (2004), 28–152.

       t 

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actors supporting the side that benefits from the courts’ rulings. Partly for that reason, the political backlash against courts for intervening in the democratic process also tends to be greater. And the perception that courts are taking over citizens’ moral right to define the terms of selfgovernment for themselves can also be distinctly aroused in the process of judicial determination of the “rights” of democratic politics. If courts were enforcing textual rights with clear, determinate content that would perhaps reduce these pressures. But, as already noted, that kind of clarity tends not to exist in the way constitutional texts define the rights of democracy. Thus, even domestic courts enforcing domestic constitutions face powerful competing pushes and pulls in carving out their appropriate role in enforcing vaguely defined democratic rights. Yet those pressures are compounded for a supranational court such as the ECtHR. That court sits atop the democratic systems of 47 countries covering roughly 800 million people. Those various countries differ greatly, especially since the ascension of the Central and Eastern European countries to the Convention, in their histories, cultural understandings, and institutional designs of democracy.7 Some of these democracies are long-standing and securely established; others are more recent and more fragile. Yet the interpretations of rights the ECtHR generates are designed to apply uniformly across these countries. Indeed, while some commentators go so far as to call the ECtHR a constitutional court for Europe with respect to human rights, others suggest the Court has not achieved all the attributes of typical domestic constitutional courts and is still an institution in flux.8 Moreover, although the term legitimacy is overused, there are indeed particularly pressing questions about how legitimate the decisions of a supranational court will be perceived to be within the domestic democratic systems of various member states. While even domestic constitutional courts can be controversial, those courts at least are embedded within the democratic systems of their particular states. Domestic democratic understandings inevitably mediate the role of these courts, at least to some extent. Judges are sometimes appointed through processes that

7

8

For discussion of how this ascension has affected the ECHR system, see the fine work by W. Sadurski, Constitutionalism and the Enlargement of Europe (Oxford: Oxford University Press, 2012). Ibid., pp. 44–51.

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incorporate some role for domestic political forces to find expression; the judges are likely to pay attention to local media and to have internalized the political culture of their particular countries. While there is, of course, a political process involved in the appointment of judges to the ECtHR, there is no democratic “state” at the Convention-wide level within which those judges are embedded, and they are considerably more distant from the domestic systems of most of the member states, other than their own, than any domestic judge. Each state has one judge on the Court, meaning that Germany and tiny San Marino have the same amount of representation; and the judges now have nonrenewable nine-year terms.9 Particularly when judging whether the democratic processes within democratic states are structured consistently with the ECHR, as the Court understands it, the ECtHR judges are more likely to be viewed as lacking legitimacy than their domestic counterparts, particularly when attempting to restructure a state’s basic democratic processes.10 The role, then, that a supranational court should take in evaluating challenges to the democratic practices of many and diverse states when enforcing a charter, like the ECHR, that inevitably defines the rights of democracy and their limitations in highly general terms is thus an exceptionally freighted one. The second part now turns to exploring the role the ECtHR has carved out for itself in this area.

The ECtHR’s Attempt to Define Democratic Rights This part focuses on three areas of the Court’s jurisprudence concerning claims of democratic rights: the right to engage in political messaging through paid advertisements, the right to vote, and the right to spend money to attempt to influence electoral outcomes.

9

10

ECHR Ar. 20, 22. A judge from the state in question in a case sits as an ex oficio member of every chamber and Grand Chamber proceeding. ECHR Art. 26(4). When terms are renewable, a judge’s potential interest in renewal might be considered one mechanism through which domestic political values would have greater capacity to be reflected in judicial behavior. For discussion of the resistance of Austrian, Spanish, and French courts toward decisions of the ECtHR, see N. Krisch, “The Open Architecture of European Human Rights Law,” Modern Law Review 71 (2008), 183–216 [196].

       t 

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Restrictions on Paid “Political Advertising” Nowhere is the ECtHR’s tentative and ambivalent stance toward its role of overseeing national democratic processes more evident than in its inconsistent and intellectually meandering series of cases addressing the legality of bans on paid political advertisements. Political advertisements are what would be called “issue ads” in American election law; they are not election ads, which advocate the victory or defeat of particular candidates or parties, but ads designed to move public opinion on particular issues. In the Convention countries, the majority of the Western European countries statutorily ban paid political advertisements on certain media, as do several countries from Central and Eastern Europe (the specifics of these bans vary).11 Some countries in Western Europe, by contrast, do permit these ads, as well as many of the Central and Eastern European countries. Typically, these restrictions apply only to nonprint media, such as television and radio. The breadth of these restrictions is remarkable, from an American perspective in particular. Unlike regulation of the more narrowly bounded electoral process, which applies only during the limited time frame of what is known as “the election period,” these restrictions apply at all times. The restrictions apply to political parties and candidates, as well as any organization whose paid messages are directed to a political end. Consider the structure of the bans in the main cases that have come before the ECtHR. In Norway, for example, the relevant 1992 statutory provision stated that “[b]roadcasters cannot transmit advertisements for life philosophy or political opinions through television. This applies also to teletext.”12 In Switzerland, the law provided that “[r]eligious and political advertising is prohibited, as is advertising for alcoholic beverages, tobacco and medicaments. To protect juveniles and the environment, the Federal Council may ban other advertisements.”13 In the United Kingdom, the 2003 Act’s (enacted without dissent) prohibitions on paid political advertising on television and radio states that the prohibition is violated by “(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political 11

12 13

A relatively recent summary of state practices can be found in Case of Animal Defenders International v. UK ECHR 2013-II 211. TV Vest AS and Rogaland Pensjonistparti v. Norway ECHR 2008-V 265, 277, para. 22. Case of Verein Gegen Tierfabriken Schweiz (VgT) v. Switzerland App no 24699/94 (ECtHR, June 28, 2001), para. 28.

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nature; (b) an advertisement which is directed towards a political end; or (c) an advertisement which has a connection with an industrial dispute.”14 The principal justification for these bans is essentially that they level the playing field of public debate by avoiding the risk that those with greater resources will dominate the most important modes of communication affecting public discourse. Thus, the UK Parliament had concluded that the prohibition was necessary to “avoid the unacceptable risk that the political debate would be distorted in favor of deep pockets funding advertising in the most potent and expensive media.”15 Arguing that the objective of the law was to “enhance the public debate,” the United Kingdom asserted that “[u]nregulated broadcasting of paid political advertisements would turn democratic influence into a commodity which would undermine impartiality in broadcasting and the democratic process.”16 In addition to this justification, states argue that such restrictions improve the “quality” of public debate because paid political ads on issues are conveyed without any immediate opposition or critical journalistic filter, and hence would paint a “manufactured picture” not all that different in tone or substance from that “found in propaganda in totalitarian regimes.”17 Some states also claim the absence of such bans would increase social divisiveness. Context matters in assessing how the ECtHR has applied the human rights provisions of the Convention to these restrictions. Thus, in the first of the most important cases in this series, Verein Gegen Tierfabriken (VgT, 2001), the challengers were an organization devoted to animal protection, which centered on the use of animals in industrial food production. They wanted to run a paid ad showing poor conditions for pigs reared for industrial food production that ended with the line: “Eat less meat, for the sake of your health, the animals and the environment.”18 The ad, they argued, was in response to commercial touting the meat industry. Animal rights were also the basis for the challenge in the recent Animal Defenders case from the United Kingdom, in which a non-governmental organization wanted to run a 20-second television ad against locking up primates; the ad involved the image of an animal cage 14 15 16 17 18

Animal Defenders International, para. 58. Ibid., para. 88. Ibid. TV Vest AS and Rogaland Pensjonistparti, para. 43. Verein Gegen Tierfabriken Schweiz, para. 56.

       t 

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in which a girl in chains slowly emerged from the shadows. In yet other cases, the challengers have been minor political parties; in Norway, “the Pensioners Party” wanted to run ads identifying that party’s issues that ended by asking for the viewer’s vote.19 The party argued that, as a minor party, it had trouble attracting media attention and did not have the same access the larger parties had to debates and other initiatives in the news, nor was the Pensioners Party identified in opinion polls. Absent these paid ads, the party argued it had little possibility of being heard. From the perspective of American constitutional law concerning the freedom of speech, these are all extremely easy cases: They involve content-based regulation of political communication and would be transparently unconstitutional. Indeed, most American constitutional lawyers would likely find it shocking that other democracies have these bans on paid political ads; legally sophisticated Americans are perhaps aware that European states ban hate speech, or use public financing of elections, but the idea that it could be legal to ban paid advertising on public issues of the day would probably astound even these sophisticated American lawyers, even astound them. These would not be controversial issues in American constitutional law, where overwhelming doctrinal consensus has always been that the free speech guarantees of the First Amendment would be violated were government to try to ban paid ads that seek to persuade people on matters of public policy outside the context of elections. From its position as a supranational court, faced with different approaches in practice to this question across the Convention countries, how does the ECtHR instead address the issue? In all these cases, the restrictions had been approved by the highest-level domestic court applying domestic law, including any domestic constitution. The legal challenge arises under Article 10 of the ECHR, the provision that protects “freedom of expression” as a fundamental human right across the signatory countries. After recognizing this right in Section 1, Article 10 goes on in Section 2 to delimit in general terms the kind of justifiable reasons that states can limit this freedom by law if such limits are “necessary in a democratic society” and rest on certain legitimate aims. The enumerated legitimate aim states offer for these restrictions is “the protection of the rights of others”; fairly quickly in its jurisprudence and without extensive analysis, the ECtHR accepted that the “rights of others” could be 19

TV Vest AS and Rogaland Pensjonistparti.

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understood to include the right to “protect the democratic process” and the “impartiality” of broadcast media on matters of public interest.20 Thus, the cases turn on whether these restrictions are also “necessary in a democratic society.” One sign that the ECtHR cannot resolve what its proper role ought to be in overseeing the designing of democratic processes is that the Court cannot reach consistent answers on a technical or methodological question. The question is whether the Court ought to address legislatively created regulations of the political process, such as these restrictions, as a matter of what American courts would call the “facial” constitutionality of the restrictions or at the level of the effect in application of these restrictions on a case-by-case or “as applied” level of analysis.21 In the ECtHR context, this involves review of what are called “general measures,” meaning policies that operate in terms of general rules. If the Court assesses Convention compliance in terms of the “facial” constitutionality of these provisions, that means evaluating whether the rule as a rule has sufficient justification. If it does, then the rule is valid, regardless of whether as applied in specific contexts the operation of the rule might seem overinclusive, with respect to the general purposes of the legislation. If the Court takes an as-applied approach, in contrast, the Court then asks on a case-by-case basis whether the legitimate justifications for such restrictions are furthered – in the Court’s view – by permitting the legislative rule to be applied to the particular actor before the Court. Initially, the ECtHR was somewhat sympathetic to these kinds of challenges to bans on political advertising through employing an asapplied method to resolving these cases.22 In the VgT case, the Court accepted the general legitimacy under the Convention of these bans. But having done that, the Court decided to apply Article 10 differently depending on the type of group and ads involved. Thus, the Court looked 20 21

22

Verein Gegen Tierfabriken Schwei, para. 24. The most thorough summary of these issues is R. H. Fallon Jr., “As-Applied and Facial Challenges and Third-Party Standing,” Harvard Law Review 113 (2000), 1321–1370. One of the tensions in the Court’s decision is that, in the context of a ban on paid advertising for religious or political purposes, the Court earlier had been willing to accept a general ban on religious ads. In the aptly titled case of Murphy v. Ireland, the Court essentially addressed the challenge there in facial terms and upheld the general validity of an Irish ban on religious ads, even though the particular challenger claimed that his ad would not offend anyone’s religious sensibilities and was innocuous. The Court took the position that states had a greater MA in regulating religious advertising than political advertising, at least at a time when Verein Gegen Tierfabriken Schweiz defined the law with respect to regulation of the latter.

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at the particular animal rights group involved there and concluded that it was too small and financially low-scale to pose the risks the ban was designed to avoid. The Court concluded that it did not constitute “a powerful financing group which, with its proposed commercial, aimed at endangering the independence of the broadcaster, at unduly influencing public opinion or at endangering equality of opportunity among the different forces of society.”23 In addition, the Court suggested that the fact that these bans applied only to certain media and not others undermined the claim that the measures were “necessary” in a democratic society. Through this style of decision, the ECtHR seemed to position itself as a case-by-case arbiter throughout Europe of which kinds of groups and ads to which these bans could be applied. Which groups would be financially “small enough” to be protected under Article 10? Which ads would “unduly influence” public opinion or “endanger equality of opportunity”? Applying this same approach to the efforts of a minor political party to run its ads in Norway, the Court similarly applied this case-by-case approach and concluded that a minor political party was not the kind of group meant to be a target of the ban, which was aimed at parties that “because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising.”24 The Court accepted that the paid ads were the only effective way for the minor party to get its message out, and it was also willing to judge that nothing in the ads would lower the “quality” of public debate. Yet having decided these cases in the last 15 years, the ECtHR turned around in its most recent confrontation with these issues and took a fundamentally different approach and reached essentially the opposite conclusion. After the VgT case, some of the Convention countries modified their restrictions on political advertising in efforts to comply with the decision.25 The United Kingdom, however, did not. As noted previously, the UK restrictions are particularly broad: They are triggered by the political nature and character of either the organization paying for the 23 24 25

Verein Gegen Tierfabriken Schweiz, para. 75. TV Vest AS and Rogaland Pensjonistparti, para. 72. R. English, “Strasbourg Ties Itself in Knots over Advertising Bans,” UK Human Rights Blog, April 23, 2013, https://ukhumanrightsblog.com/2013/04/23/strasbourg-ties-itselfin-knots-over-advertising-ban/ (accessed September 5, 2016). (“Vgt inspired a number of member States to repeal their general ban – a change that was effected without major difficulties.”)

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ad or the political character and content of the ad. The term political encompasses most issues of public interest and is applied outside any narrowly defined “electoral period.” As in VgT, the challengers were an animal rights organization; as noted previously, they wanted to run ads condemning the keeping and exhibition of primates and their use in television. Based on the Court’s prior decisions, it would seem clear that the Court would require the United Kingdom to make an as-applied exception to permit the Animal Defenders organization to run its paid ads. Yet the Court nonetheless decided to uphold the United Kingdom’s restriction and refusal to permit this group to run its ad. I will first explore how the sharply divided 9–8 Court justified this result in legal terms before turning to assessing the larger political and cultural context in which this decision took place. Formally, the Court began its analysis by proclaiming that the MA was a “narrow one” in cases such as this, given that the regulation arguably impinged on rights of free expression. Yet having announced that, the Court later in the opinion manifested its uncertainty in overseeing national democratic processes by turning around and “recalling” that “there is a wealth of historical, cultural and political differences within Europe so that it is for each State to mold its own democratic vision.”26 The Court then relied heavily on what it considered a highly deliberative legislative process within the United Kingdom that had produced this restriction, along with the processes of judicial review in the United Kingdom (both the High Court and the House of Lords) that had held the restriction to be consistent with the Convention, as the domestic courts interpreted the Convention. To the Court, it seemed to matter both that the United Kingdom had a more than 50-year history of having such restrictions in place, that the UK parliament had extensively reviewed this restriction in the context of reassessing communications policy more generally, and that in the recent Communications Act of 2003, the restriction had been reenacted in Parliament without dissent. The Court called the domestic processes in the United Kingdom “of central importance” to its decision to uphold the restriction. Beyond accepting the judgment of UK authorities as to the necessity and proportionality of the restriction, the ECtHR’s decision contains precious little actual analysis explaining why it is now upholding this kind of restriction and exactly why this case is so different from the

26

Animal Defenders International, para. 11.

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prior ones coming out the other way. Indeed, the key move in the opinion is the Court’s implicit shift to analyzing this kind of restriction in “facial” rather than “as-applied” terms; the Court hardly even directly acknowledges this shift, let alone explains why such a radical break from the prior cases is warranted. The Court essentially simply announces that to determine proportionality, it must primarily assess the legislative choices underlying the policy – that is, it must assess the policy as a rule, on its face. The closest the Court comes to acknowledging how dramatic a change it is making from its prior cases is through the (mysterious and incoherent) statement that “the more convincing the general justifications for the general measure are, the less importance the Court will attach to its impact in the particular case.”27 In other words, if a measure is really valid, the Court will not engage in any as-applied analysis, but if a measure is partially pregnant – if it is merely valid, but not really really valid – the Court might engage in as-applied, case-by-case application of the rights analysis the Convention entails. Yet these are not the only technical areas in which the Court’s analysis is radically different from that in the Swiss and Norwegian cases. While the Court in those cases considered singling out only radio and television for the restrictions, as opposed to including newer media as well (such as the Internet) to undermine the state’s case for how necessary the measure was, in Animal Defenders the Court concluded that precisely this difference marked a “coherent” distinction based on “the particular influence of the broadcast media.”28 And while the Court noted that there had been some movement away from employing these restrictions in the Convention states, partly in response to the Court’s own earlier decisions, that too did not weigh heavily against the UK restriction, for the Court celebrated the value of national diversity in choosing how to structure the democratic process. In a cogent concurring opinion, the British judge argued more explicitly that facial analysis was the appropriate judicial methodology to apply to legislative regulations of the democratic process and much more directly acknowledged the conflict with the Court’s earlier cases. He essentially urged the Court to overrule those earlier decisions. And an impassioned eight-Justice dissent correctly and sarcastically proclaimed that the “inescapable conclusion” was that a prohibition on political advertising was proportionate and necessary for Swiss democracy but 27 28

Ibid., para. 109. Ibid., para. 119.

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not for that in the United Kingdom. Calling this a “double standard,” the dissenters called the restriction “well-intentioned paternalism” and a “benevolent silencing of all voices (except those of the political parties)” that ought to violate Article 10.29 Even sophisticated academic commentators on the Court who praise the decision in Animal Defenders acknowledge how surprising the outcome was, in light of the prior cases on this issue.30 One cannot understand the dramatic change in approach taken in Animal Defenders without appreciating how much the Court’s approach to other areas of the law of democracy, under the ECHR, spawned a profound political backlash against the Court in at least some countries, particularly the United Kingdom. There is a direct linkage, in my view, between how the ECtHR addressed other areas involving claims of democratic rights, particularly the issue of access to the vote the next section addresses, and the Court’s about face in the political advertising cases. After surveying two other areas of the Court’s work concerning democratic rights, we will look at the broader political and institutional context in which the Court has come to function.

Access to the Vote for Prisoners A similar battlefield pattern of advance and retreat characterizes another series of ECtHR cases involving the structure of democracy. These cases involve direct access to the ballot box and arise in the context of those disenfranchised because they have been convicted of crime and are currently serving prison sentences. The ECtHR has faced enormous political backlash from the United Kingdom in this area, a backlash that has surely been on the minds of the judges in subsequent ECtHR cases involving democracy. The saga begins with the well-known Hirst case from 2005. A 1983 UK statute barred convicted prisoners during the period of their penal detention from voting in national or local elections.31 Among the Convention countries, 29 30

31

Ibid., Joint Dissent, para. 14. J. Rowbottom, “Animal Defenders International: Speech, Spending, and a Change of Direction in Strasbourg,” Journal of Media Law 5 (2013), 1–13; J. Rowbottom, “A Surprise Ruling? Strasbourg Upholds the Ban on Paid Political Ads on TV and Radio,” UK Constitutional Law, April 22, 2013, https://ukconstitutionallaw.org/2013/ 04/22/jacob-rowbottom-a-surprise-ruling-strasbourg-upholds-the-ban-on-paid-politicalads-on-tv-and-radio/ (accessed September 5, 2016). Hirst v. UK ECHR 2005-IX 187.

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18 imposed no restrictions on prisoner voting, 13 barred voting, and 12 imposed some restrictions on prisoner voting. The UK provision had been unanimously held by the domestic courts to be consistent with the ECHR, but the ECtHR declared that the UK ban violated Article 3 of the ECHR. Despite the fact that the United Kingdom has a relatively small prison population compared to the United States (though average for Europe),32 the decision triggered an enormous outcry in the United Kingdom, both in Parliament and the media, and to this day, the United Kingdom has continued not to implement the Hirst decision – in probably the single most noteworthy act of political defiance of the Court by a major Western European country. Hirst exemplifies the ECtHR in its boldest and most assertive phase. The original ECHR does not contain any provision that expressly protects the right to vote, unlike the other individual rights provisions in the Convention. Presumably this absence reflects the fact that the contracting states understood they varied in some respects regarding aspects of how they regulated the voting process. Instead of any individual-rights recognizing provision, the Convention contains a more structurally oriented committed to free and fair elections. Thus, Article 3 of Protocol 1 to the Convention provides that “[t]he High Contracting parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.”33 The Court acknowledged that “at first sight” this provision did not appear to guarantee any individual right, but it reaffirmed its earlier momentous decision interpreting the provision to nonetheless secure an individual right to vote and hold office.34 The Court also acknowledged that the MA was “wide” in this area.35 Yet the Court concluded that the UK law had to be subjected to the kind of analysis required to protect those rights the Convention expressly granted, namely whether the law reflected a legitimate aim and was proportionate to its purpose. 32

33

34 35

The Institute for Criminal Policy Research puts the England/Wales population at around 85,000, compared to around 2.2 million in the United States, with the per capita rate in the United States about five times that in the United Kingdom. See www.prisonstudies.org/sites/default/files/resources/downloads/world_prison_popula tion_list_11th_edition.pdf. Convention for the Protection of Human Rights and Fundamental Freedoms (2010), Protocol 1, art 3. Mathieu-Mohin v. Belgium App no 9267/81 (ECtHR, March 2, 1987). Hirst, para. 82.

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Hirst also exemplifies the bizarre methodological approach we have seen in other cases from the ECtHR in the democracy area. The Court did not hold that disenfranchisement for those serving sentences was a per se violation of the Convention; it recognized that states were pursuing a legitimate aim in disenfranchising at least some serving time. As examples, the Court observed that those who had abused a public position or whose conduct threatened to “undermine the rule of law or democratic foundations” could be barred from voting while serving their sentences.36 Thus, the ban was not unconstitutional in principle. Instead, the problem with the UK ban was procedural: The problem was that the bar was automatic and applied to all convicted prisoners. At some point, the Court seemed troubled by the fact that there was no judicial procedure involved in determining whether a specific convicted individual should lose the right to vote. Yet the Court left it mysterious as to what specific questions should be adjudicated on a case-by-case basis and what kind of evidence would be sufficient to enable a judge to determine that loss of the right to vote in a specific case was appropriate.37 It was the automatic nature of the rule, which applied to all those convicted of crimes serious enough to warrant imprisonment, that led the Court to conclude that the UK rule could not be sustained. Thus, Hirst reflects, again, the Court’s strange discomfort with legislative rules that function as rules; the decision requires some kind of individualized determination in each case as to whether disfranchisement is warranted, based on some unclear calculus of considerations (the decision also seems at odds with the Court’s decision seven years earlier upholding the principle that deprivation of the vote for criminal conviction does “not affect the expression of the opinion of the people in the choice of legislature.”).38 The ECtHR presumably did not anticipate the outrage with which Hirst would be greeted in the United Kingdom. Indeed, aspects of the opinion suggest the Court might have thought the ban rested on outdated moral judgments that the United Kingdom had not revisited and that did not necessarily reflect contemporary values in the United 36 37

38

Ibid., para. 71. At other points, the Court came closer to suggesting that the problem with the ban was that it applied without regard to the length of the sentence or the severity of the crime, which suggested that perhaps a more narrowly tailored, but still per se, ban for certain offenses or sentences might have been upheld – but the opinion is far from a model of clarity on the fundamental flaw in the UK ban. Holland v. Ireland App no 24827/94 (ECtHR, April 14, 1998), para. 2.

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Kingdom. If that was the Court’s view, it was disastrously wrong. For Hirst was one of the most important triggers to the most consequential political backlash against the Court since its creation. Indeed, Hirst has become the source of one of the greatest tests between the Court and national democratic authorities in the Court’s existence. It is hard to overstate the resistance in the United Kingdom, across the political spectrum, to complying with the decision in Hirst. Neither Labor nor Conservative governments have sought to implement the decision. In a nonbinding 2011 vote, Parliament overwhelmingly rejected any change to the existing legislation. In 2010, the ECtHR tried to add to the pressure on the United Kingdom with its follow-up judgment in the Greens case, in which the Court used its new “pilot judgment procedure” (in which the Court orders a specific remedy, in contrast to ordinary judgments that leave to the states the means of compliance) to instruct the United Kingdom to introduce legislative proposals within six months to comply with Hirst.39 A special Joint Committee of the UK Parliament was then created, which issued a report in 2013 concluding that compliance would require only minor changes. But Parliament did nothing to act on that report. Upping the level of confrontation, the Committee of Ministers, which monitors compliance with the Court’s orders and seeks to ensure implementation, passed the second of two resolutions highly critical of the United Kingdom’s defiance. Yet the United Kingdom continues to maintain its ban on prisoner voting. Moreover, Hirst has become the most visible flashpoint in the United Kingdom – perhaps because the issue is so easily understandable – in the conflict between domestic sovereignty over democratic processes and the authority of the Court in Strasbourg. Indeed, when the United Kingdom took over leadership of the Council of Europe, during a Conservative and Liberal coalitional government, Prime Minister Cameron’s important speech on the future of the ECtHR invoked Hirst as a prime example of why there had come a need to rein in the Court. Calling the prisoner voting rights issue a source of “democratic anxiety” about the proper role of the Court, Cameron asserted that the Court had failed to recognize a proper “MA” when it came to the authority of the member states.40 Instead, he demanded that there be greater respect for subsidiarity and 39 40

Greens and M.T. v. the United Kingdom (application nos. 60041/08 and 60054/08). D. Cameron, “Speech on the European Court of Human Rights,” Cabinet Office (London, January 25, 2012), www.gov.uk/government/speeches/speech-on-the-european-court-ofhuman-rights (accessed September 5, 2016).

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argued that the Court was discrediting the notion of rights through decisions such as Hirst. These principles in Prime Minister Cameron’s opening speech eventually found expression in the jointly issued Brighton Declaration, to be discussed in the following section. Perhaps not surprisingly in the wake of this political storm, the Court then backed away from its initial bold ventures into this terrain. By 2012, the Court stepped back from Hirst and accepted a rulelike policy on prisoner disenfranchisement from Italy that was in considerable tension with the position the Court had marked out in Hirst. By statute, Italy effectively denied the vote to those sentenced to more than three years in prison and to those convicted of certain specific offenses, regardless of the length of sentence, such as abuse of public office, “market abuse,” and offenses against the judicial system. No provision existed for individual judicial determination of the appropriateness of the disenfranchisement. As in the United Kingdom, this was an automatic or blanket withdrawal of the vote from those convicted of certain crimes or receiving sentences of more than a certain length. Yet now the Court upheld this ban and sought to rewrite the basis of Hirst. In the wake of Hirst, the First Section the ECtHR in Frodl v. Austria had invalidated an Austrian voting ban that applied only to those convicted of crimes of intent who had received sentences of more than one year. Frodl understood Hirst to require an individualized judicial determination before the vote could be withdrawn.41 And yet, the Grand Chamber in the Italian case, Scoppola, unconvincingly disclaimed that any such principle underlay Hirst. In language purporting to distinguish Hirst, the Scoppola Court now asserted that “[w]hile the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge.”42 The Court then upheld the automatic, general disenfranchisement of those sentenced to more than three years because 41

42

Frodl v. Austria App no 20201/04 (ECtHR, 08 April 2010). As the Court in Frodl understandably understood Hirst: “Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions (ibid., § 82).” Ibid., para. 34. Thus, the ECtHR judges in Frodl took Hirst to impose the requirement that the Grand Chamber of the Court rejected as required in Scoppola. Scoppola v. Italy (No. 3) App no 126/05 (ECtHR, May 22, 2012), para. 99.

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“the measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more.”43 In the Court’s view, this made the measure proportionate. (Hirst had been convicted for manslaughter, Scoppola for murder.) As a purely legal matter, it is hard to accept the Court’s attempt to rewrite the basis for Hirst.44 Instead, Scoppola is better seen as a fundamental retreat from the principles of Hirst, presumably in response to the critique of the Court launched against the Hirst decision in the United Kingdom and the refusal of a major country to accept the decision in Hirst. As the dissenting judge in Scoppola wrote: “The present judgment offers a very narrow interpretation of the Hirst judgment and [is] in fact a retreat from the main arguments advanced therein. Regrettably the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.”45 As in the campaign-finance area, discussed in the following section, the ECtHR’s advance and retreat in this area now puts the Court in an even more difficult position going forward. Once again, it has made itself the arbiter of questions of degree, rather than principle – in this context, with regard to which forms of prisoner disenfranchisement provisions are valid. Had the Court stuck to the principle that only judges could make decisions about disenfranchisement, the Court would at least have rested on a clear legal principle (although a bizarre one). Had the Court ruled that disenfranchisement for criminal conviction was a per se violation of the Convention – or that disenfranchisement while serving a criminal sentence was a valid basis for disenfranchisement – the Court would also have rested on clear legal principles. Instead, the Court will now assess on a case-by-case basis whether particular criminal disenfranchisement provisions rest on “serious” enough crimes or “long” enough sentences. That approach is almost certain to create greater political friction with the Convention countries that restrict prisoner voting rights, to the extent the Court upholds and rejects various provisions based not on clear, general principles, but on these judgments on much more nebulous questions such as “how long” a sentence is long enough to justify loss of the right to vote while in prison. 43 44 45

Ibid., para. 106. Frodl. Scoppola.

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Campaign Finance The ECtHR has not yet faced many cases raising challenges to the more aggressive forms of campaign finance regulation that exist in many Convention countries compared to in the United States, and which could certainly be challenged under Article 10 as violations of the right to freedom of expression. But the way the Court has intervened in its one major decision suggests that, here too, the Court might be setting itself up in a difficult position that it might have to back away from should many future challenges be brought before it. Most European countries use public financing of elections, and most systems of public financing require a panoply of ancillary regulations and restrictions to be effective. In particular, these systems typically tightly regulate or prohibit spending first by the political parties, which receive the public funds, and then by outside, nonparty entities as well. The case the ECtHR faced provided virtually the perfect circumstances to present the image of an overweening state seeking to oppress textbook political speech. Arising in 1998, the case again involved the United Kingdom. Domestic UK law criminalized any spending during the “election period” in excess of the princely sum of 5 pounds. (In the United Kingdom, the election period typically lasts four to six weeks, from the time the incumbent prime minister announces the date of the general election until it is held.) The restriction applied to spending designed to promote the election of a particular candidate but not to spending designed to express opinions or communicate political information more generally, including to support political parties. In addition to promoting political equality, the restriction was defended by the government as designed to prevent political debate from being “distorted” by being shifted from matters of general concern to single-issue politics. Ms. Bowman was a right-to-life activist concerned that the major political parties had endorsed no general policies with respect to abortion and had left votes on these issues to the conscience of individual members of Parliament. She and her organization sought to inform the public, therefore, of how various individual candidates stood with respect to these issues. To do that, she arranged to have more than a million leaflets made and spread throughout the United Kingdom. Doing anything to communicate such information costs more than 5 pounds, and she was charged with a criminal offense, with that charge upheld in the UK courts. The major political parties had made abortion an issue of private conscience for their parliamentary members, meaning there was

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no party position as such on the issue. From one perspective, then, Ms. Bowman might be viewed as trying to force the political process, during the election period, to confront a major issue that the large parties had sought to keep off the agenda as too threatening to party cohesion. In a short, confident 14–6 opinion, the ECtHR held that this bar on outside spending violated Article 10.46 The Court did not take issue with the general validity of spending restrictions but with how low the limit had been set in the United Kingdom. The Court simply concluded that the UK limit resulted for all practical purposes in a “total barrier” to Ms. Bowman publishing information with a view to influencing voters in favor of various antiabortion candidates, though the material did not advocate voting for or against any specific candidate. The Court did not examine the legislative or judicial processes in the United Kingdom that had led to the adoption of this policy in any detail, nor did it engage in significant comparisons of the level at which these limits were set in various Convention countries. But what does the Bowman decision mean in terms of how much the ECtHR is going to police the campaign spending regulations of countries throughout Europe? The Court did not decide the case in terms of any broad general principle. In the United States, the Supreme Court has held that the First Amendment prohibits any restrictions on independent election spending. Yet the ECtHR instead decided Bowman in terms of questions of degree: At some point, a cap on third-party spending was too low to be valid under the ECHR. Of course, that raises the question of how the Court is going to decide how low is too low. In response to the decision, the United Kingdom kept its spending restrictions but raised the amount of the limit to 500 pounds in general elections and 50 pounds in local elections; no case has yet challenged those caps.47 The situation of Ms. Bowman is compelling from any perspective on democracy. Although she had a small organization behind her, she is much like the solitary pamphleteer seeking to raise an issue the major parties were avoiding and to inform voters of the candidate’s positions. Can a democratic system really make it a crime to do that? Much like the animal rights organizations in the “political advertisement” cases, she and her organization hardly look like the deep-pocketed commercial organization that reformers fear will undermine political equality by 46 47

Bowman v. UK App no 24839/94 (ECtHR, February 19, 1998). See J. Rowbottom, Democracy Distorted: Wealth, Influence and Democratic Politics (Cambridge: Cambridge University Press, 2010), p. 120.

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dominating the airwaves through greater access to financial resources. Thus, as in the early political advertisement cases, the Court tried to carve out an exception for small players by declaring the UK system unlawful. Yet by going about that in the way the Court did, it of course has put itself in a difficult, perhaps untenable position and created considerable legal uncertainty.48 Is the Court going to decide – and on what basis – what levels of caps on third-party spending across Europe are high enough to be acceptable under the ECHR? Or, as in other areas of its confrontation with the basic democratic structures of the Convention countries, is the Court going to back down after this initial foray into applying the right of free expression to caps on election spending? The affirmative right to freedom of expression in Section 1 of Article 10 and the limitations in Section 2 are all framed at a high enough level of generality – and do not address election spending specifically – that the text alone could be read to permit the Court to uphold or invalidate all regulation on election spending, including by third parties. Yet it is hard to imagine the Court invalidating across the board these spending restrictions, which would be in effect to take the position the US Supreme Court took in Buckley v. Valeo.49 Given the hostility to the way American elections are financed throughout much of Europe, few decisions would cause more of a backlash against the ECtHR than that. But at the same time, it was also too difficult for the Court to accept the principle, when faced with a context like that of Ms. Bowman, that all caps on third-party spending are consistent with Article 10. The Court thus left itself in an undefined intermediate space, in which some caps are fine and others are not. We might speculate that Bowman is going to turn out to be cabined in narrowly and not lead the ECtHR to invalidate many more spending caps, if further cases arise. The domestic courts in some individual states might use domestic constitutional provisions to invalidate certain spending caps as violations of the right of freedom of expression. But even though the provisions in the ECHR on these matters read much the same way as many of the state constitutions of the contracting parties,

48

49

See K. Ewing, The Cost of Democracy: Party Funding in Modern British Politics (Oxford: Hart Publishing, 2007), p. 51 (“This uncertainty about the amount of permissible limits on third-party spending is only one of a number of problems associated with spending limits as a regulatory strategy.”) 424 US 1 (1976).

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the legitimacy and role of a supranational court is different. In recent years, we have seen the ECtHR back away from its more aggressive forays into declaring long-standing features of democracy to violate the Convention. I suspect the same will be true in the area of campaign finance, and that Bowman will turn out to be a mostly symbolic case – one expressing the point that some limits do indeed exist on how far states can go in shutting down third-party spending during election periods – but not a case that will spawn a series of cases declaring other limits invalid as well.

Of Britain, Brighton, Brexit, and Judicial Exits Hirst, which received extensive coverage in the UK press, was perhaps the most significant catalyst for formidable UK-led pushback against the ECtHR.50 As noted previously, resistance to the Court’s decision was immediate across the major political parties and Parliament unanimously reenacted the ban to express rejection of the Court’s decision. The United Kingdom continues to defy the Court on this issue. But Hirst was only perhaps the most charged, direct confrontation between the United Kingdom and the Court; cases in which the Court precluded the United Kingdom from deporting radical Islamic clerics similarly spawned

50

See, e.g., J. Robbins, “What Now for Human Rights in the UK Post-Brexit,” Halsbury’s Law Exchange, July 4, 2016, www.halsburyslawexchange.co.uk/what-now-for-humanrights-in-the-uk-post-brexit/ (accessed September 14, 2016) (“Unsurprisingly, antihuman rights sentiment cropped up in the official Leave literature which blithely asserted: ‘If we vote to remain, EU laws will overrule UK laws and the European Courts will be in control of our trade, our borders, and big decisions like whether prisoners are allowed to vote.’”); T. Bale, “Banging on about Europe: How the Eurosceptics Got Their Referendum,” Brexit Vote Blog, June 23, 2016, http://blogs.lse.ac.uk/brexit/2016/06/23/bangingon-about-europe-how-the-eurosceptics-got-their-referendum/ (accessed September 14, 2016) (“The ECHR was not, as sceptics knew full well, an EU institution, but its ability to override British sovereignty was, as far as they were concerned, all of a piece with Brussels and therefore grist to their mill.”); “European Convention of Human Rights: Pros and Cons of Leaving,” The Week, April 26, 2016, www.theweek.co.uk/72028/euro pean-convention-of-human-rights-the-pros-and-cons-of-leaving (accessed September 14, 2016) (“Opponents often cite a controversial ruling on prisoner voting and the cases of clerics such as Abu Hamza and Abu Qatada, who . . . avoided extradition from the UK for long periods due to legal battles with the ECHR.”); A. Reuben and P. Barnes, “Reality Check: Checking the Vote Leave Leaflet,” BBC News, April 11, 2016, www.bbc.com/news/ uk-politics-eu-referendum-36014941 (accessed September 14, 2016) (“Over the past 43 years, the EU has taken control over more and more areas which don’t have anything to do with trade – such as our borders, our public services and whether prisoners have the right to vote.”).

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intense British political reaction against the Court.51 Calling the ECtHR a “court of fourth instance,” on top of the domestic courts, David Cameron, when prime minister, led an effort to rein in the Court; in doing so, he explicitly invoked Hirst as representative of the Court having gone too far. This resistance took concrete shape when the UK government took over the chairmanship of the Committee of Ministers of the Council of Europe in 2012. The United Kingdom led an effort to cut back on the general scope of the Court’s authority for the first time in the history of the ECtHR.52 This effort culminated, initially, in the Brighton Declaration of 2012, a “watershed” in the history of the ECtHR,53 in which 47 Council of Europe states agreed to amend the Court’s charter. Although the final version of the declaration was milder than the initial drafts, it was clear to all that the message of Brighton was that some member state governments were prepared to exercise their political muscle to constrain the Court; indeed, since Brighton, the rhetorical challenges to the Court have become more pronounced in many European countries.54 Protocol 15, which if it becomes adopted will give effect to the principles of Brighton,55 would add to the Convention’s Preamble express references to the principle of subsidiarity and the doctrine of the MA. The commitment to subsidiarity would mean that national authorities should be understood to have the primary responsibility for giving effect to the Convention’s rights. There was no mistaking the fact that Protocol 15 was designed to press the Court to take a more limited role in overturning the judgment of domestic actors concerning the meaning of Convention rights, including the democratic rights that had been the basis for Hirst.

51

52 53

54

55

See www.nytimes.com/2012/01/18/world/europe/european-court-overrules-britainon-terror-detainee.html?_r=0; www.theguardian.com/uk/2010/jul/08/abu-hamza-humanrights-ruling. See www.publications.parliament.uk/pa/jt201415/jtselect/jtrights/71/71.pdf. L. R. Helfer, “The Burden and Benefits of Brighton,” European Society of International Law: Reflections 1 (2012), http://esil.sedi.eu/node/138. See Madsen, “The Protracted Institutionalization of the Strasbourg Court,” p. 175 (“Since the Brighton Declaration Europeans have gotten accustomed to a different kind of discourse where both the judgments and the judges are scolded by not only fuming heads of state but also the press and senior members of the legal profession.”). Protocol 15 enters into force only if ratified by all the Convention state parties. As of the date this chapter went to press, around 41 states have done so. See www.coe.int/en/web/ conventions/full-list/-/conventions/treaty/213/signatures?p_auth=205qv74f.

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After the drafting of Protocol 15, the ECtHR also became embroiled in the Brexit debate, as the decisions of the Court to declare certain UK practices in violation of the Convention – such as the disfranchisement policy in Hirst – became flashpoints in that debate. All these developments – the immediate reaction to Hirst in the United Kingdom, the adoption of Protocol 15, the critique of the Court in the Brexit debates, and then Brexit – will likely lead to a further chastened Court, as perhaps is visible already in recent decisions such as the Animal Defenders case. Indeed, the ECtHR might already be signaling one “exit strategy” it will take to remove itself further from too explosive a continuing engagement with issues of democratic design. My co-author, Pamela Karlan, has identified various exit strategies the US Supreme Court has taken for extricating itself from complex, charged areas of democratic institutional design, after the Supreme Court took some initial steps to correct extreme deficiencies regarding American democratic structures.56 Having felt it necessary to undertake an initial intervention, the US Supreme Court came to recognize the risks of putting itself in the position of taking on a continuous role in overseeing certain aspects of American democracy; in response, according to Karlan, the Court developed various techniques for limiting its further involvement. In the context of the ECtHR, this is one way of understanding the Court’s move toward a more “procedural” mode of review, a movement in the Court’s cases that many ECtHR commentators have noted.57 Through this technique, the Court has indicated that it will give states a greater MA when the domestic parliamentary and judicial processes reveal that the state has paid proper attention to the Convention right at stake; if it has, the Court will be more deferential to the way the state has struck the balance between the right and the legitimate justifications for limiting it. Significantly, this approach was deployed most overtly, with the most direct justification from the Court, in the Animal Defenders case. Precisely because, in the Court’s view, the UK Parliament had extensively deliberated over the ECHR right to freedom of expression when deciding how to regulate political advertisements the Court majority was willing to 56

57

P. S. Karlan, “Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous Branch out of the Political Thicket,” Boston University Law Review 82 (2002) 82, 667–698. See also M. Saul, “The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments,” Human Rights Law Review 15 (2015), 745–774.

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defer to the resulting UK ban on paid political advertising. Through this shift toward a more procedural mode of review, the Court is suggesting that it will defer to domestic actors as long as they demonstrate that they have focused clearly and deliberatively on the relevant ECHR right when adopting policy that touches upon that right.58 To be sure, there are a variety of difficult normative questions about such an approach. Does it mean, for example, that the same policy might violate the ECHR in one country because the parliament there did not self-consciously address the Convention right when adopting that policy, but be acceptable in another country because there the Parliament did debate the issue? And how intensively is the Court going to be in assessing the “thoroughness” of any parliamentary consideration of an issue? Will it be sufficient if the parliament merely makes some reference to the relevant Convention right? But these questions aside, it is easy to see the attraction to the ECtHR of the move toward proceduralized judicial review, particularly for dealing with how various member states apply “democratic rights.” This approach enables the Court to continue to police – or give the appearance of policing – the Convention to ensure that the rights it demarcates are being taken seriously, without putting itself in the position of being directly at odds with a member state by declaring that a certain law violates the Convention. At most, the Court would declare that a parliament had not engaged in a thorough enough consideration of whether the Convention right needed to be impaired to realize some important, legitimate public policy. If the Court reached that conclusion, it would still be open, in principle, for the parliament to revisit the issue in a more extensive deliberation. This proceduralization of Convention rights thus keeps the Court at one remove from direct substantive confrontation with member-state political institutions, while still leaving the Court a role to play in ensuring that Convention rights are given due

58

This proceduralist style of judicial review resembles the way the Canadian Supreme Court handled the explosive question concerning basic democratic structures of whether Quebec had a right to secede under the Canadian Constitution. Rather than resolve this issue in substantive terms, the Court concluded that Quebec had the right to initiate a dialogue on secession with the national government, if a “clear majority” of Quebec voters voted in a referendum in favor of a “clear question” regarding their desire to secede. See S. Choudhry, “Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession,” in T. Kahana and R. Bauman (eds.), The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press 2006), pp. 480–498 [480, 487].

       t 



weight. The temptation for the Court of this approach is obvious. Through proceduralization of the MA in this way, the Court would be giving greater weight to the values of democratic self-government, without the Court appearing to withdraw from the field of enforcing democratic rights.59 The ECtHR’s pattern of initial articulation of a strong conception of fundamental rights, only to be followed by a substantial retreat in the face of sharp political opposition within powerful countries, is not limited to cases that involve the structure of democratic politics. The same pattern is evident in the way the ECtHR has addressed the issue of whole-life prison sentences. For a brief period starting around 2013, the ECtHR, in a series of cases centered around the decision in Vinter v. The United Kingdom, seemed to hold that the Convention was violated if a prisoner was given a whole-life sentence without domestic law providing an established mechanism for ongoing review of that sentence with the possibility of release and without a prisoner knowing what he or she had to do to be considered for release. But a few years later, after Vinter also triggered a major political backlash in the United Kingdom, the ECtHR walked back from this overture and accepted in Hutchinson v. The United Kingdom a regime of whole-life sentences from the United Kingdom that fell far short of what Vinter seemed to demand. Indeed, one of the leading experts on this issue has said the Hutchinson decision “makes no sense,” given the principle seemingly established in Vitner, and that the ECtHR has “simply funked the confrontation” with the United Kingdom and accepted a “wildly implausible” position to enable the issue to go away.60

Conclusion When the ECHR and the Court were first created, their main purpose was to provide institutional resistance against the feared return of totalitarian regimes to Europe. Ironically, the Court has turned out not to have 59

60

For an insightful article noting that the MA allows the court “to avoid a final determination of the content or scope of a particular Convention right while nevertheless maintaining its supervisory function and the possibility of revisiting the question,” see E. Delaney, “Analyzing Avoidance: Judicial Strategy in Comparative Perspective,” Duke Law Journal 66 (2016), 28–43. See Professor D. van Zyl Smit, Testing the Limits of Judicial Activism: The Life Imprisonment Jurisprudence of the European Court of Human Rights and Its Global Impact (Hoffinger Lecture, NYU School of Law, March 27, 2017).



 

played a significant role along that dimension in recent years; its willingness and capacity to do so will soon be tested by recent political transformations in countries like Hungary and Poland. Instead, when the Court has acted to resolve cases about the basic democratic processes and structures of the member states, it has often been in the context of assessing how politics and participation are structured within the otherwise democratic regimes of countries like Switzerland, Norway, the United Kingdom, Italy, and others. The Court has, to be sure, also at times addressed significant questions concerning the structure of democratic institutions in some of the countries of Central and Eastern Europe, and for a window of time, the Court’s decisions were viewed as having contributed to strengthening democracy in certain of these countries. In Hungary, for example, the Court handed down important judgments that the domestic courts followed on the right to vote, freedom of expression, and access to information.61 The Court had been less consequential on issues concerning democracy in other former Communist countries, such as Poland.62 With the recent rise in both Hungary and Poland of governing parties that are exceptionally aggressive in attempting to entrench themselves in power and subordinating all other institutions, it is too early to know how the Court will respond and whether any of its judgments will be effective in the face of these new challenges. But ironically, at this stage in the Court’s history, some of the strongest resistance to the Court in its decisions concerning the structure of democratic institutions has come from Western Europe, particularly the United Kingdom. As a supranational court not embedded in a larger democratic polity, the ECtHR is on particularly shaky ground when it seeks to challenge the democratic processes of essentially democratic states, particularly when the Court does not limit itself to “outlier” practices that only one or two member states employ. The result of the Court’s interventions has been

61

62

K. Bard, “Hungary: The Legal Order of Hungary and the European Convention on Human Rights,” in J. Motoc and I. Ziemele (eds.), The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge: Cambridge University Press 2016), pp. 176–199. A 2016 survey concludes that Polish cases concerning “democracy and pluralism” did not constitute a large portion of the cases concerning Poland that had gone to the ECtHR. Lech Garlicki and Ireneusz Kondak, “Poland: Human Rights between International and Constitutional Law,” in Iulia Motoc and Ineta Ziemele, The Impact of the ECHR on Democratic Change in Central and Eastern Europe: Judicial Perspectives (Cambridge: Cambridge University Press, 2016).

       t 



erratic doctrinal practice, in which the Court, first, veers inexplicably between whether it ought to review state laws “on their face” or “as applied.” Second, the Court is inconsistent regarding whether it ought to accept what it calls “general measures” regulating the exercise of democratic rights or demand that these measures be evaluated on a case-bycase basis. Third, the Court appears unable to settle on any clear set of legal principles in this area. Thus, the Court has not been willing to permit or forbid all bans on paid political advertising; to permit all or no bans on outside electoral spending; and to uphold or reject all bans on voting by those currently serving sentences for criminal convictions. Instead, the Court has put itself in the position of having to decide questions of degree that do not lend themselves to any clear resolution of principle: How low is too low for caps on outside spending, or how long a prison sentence is long enough to justify denial of the vote while in prison? That position reflects the Court’s tentativeness, and perhaps uncertainty about whether its decisions will be accepted as legitimate in the relevant country, when it takes on these issues. These doctrinal struggles are a manifestation of the deeper political environment within which the ECtHR operates.63 Various imperfections inevitably characterize democracy. But it does not follow that courts, let alone a supranational court, are the best or most legitimate institutional forums for resolving the issues concerning the structure of national democracy instead. There remains considerable moral and cultural value in the process of self-governance, and it is no surprise when national polities defend that value vigorously. Until a thicker sense of political union exists throughout the Convention states, it will remain difficult for the Court to impose a uniform understanding of democratic rights on those states. The Court has contributed to the integration of Europe through law. But there is a limit on the extent to which courts can play the leading role in any such project – and a limit on the extent to which various polities in Europe today want to be further integrated. 63

For an excellent analysis of the changing geopolitical contexts in which the Court has operated since its creation and the effects of those changes on the Court’s role, see Madsen, “The Protracted Institutionalization of the Strasbourg Court.”

PART II Democratic Effectiveness of Judicial Power

6 Constitutional Court and Politics The Polish Crisis

 

Introduction The Constitutional Court of Poland is more than 30 years old. It was created in 1982–1986, still under the Communist system, even if that system had then already reached a final stage of decline. There have been numerous writings on the Court, and it is not necessary to repeat what has already been said and published. For this presentation, it may only be repeated1 that, almost from the beginnings,2 the evolution of constitutional adjudication in Poland has often been regarded as a quite successful story. And it goes without saying that the Court’s success was but a manifestation of the general success of Polish transformation, of the transformation of economic and social fabric of the society. The development of constitutional adjudication in Poland may be organized into three basic periods: • 1982–1989: from the enactment of the constitutional amendment that provided for the creation of the Constitutional Court till the elections of 1989 that marked the end of the Communist regime; • 1989–1997: from the beginning of the democratic transformation till the enactment of the new Constitution of Poland that entered into life on October 17, 1997; and • 1997–2015: when the Court has been operating under the new constitution.

1

2

L. Garlicki, “Constitutional Court of Poland: 1986–2009,” in P. Pasquino and F. Billi (eds.), The Political Origins of Constitutional Courts (Rome: Fondazione Adriano Olivetti, 2009), pp. 13–39 with references to other works on the Constitutional Court. See M. F. Brzezinski and L. Garlicki, “Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?,” Stanford Journal of International Law 31 (1995), 13–60.





 

It seems that the end of 2015 marks the beginning of a new dramatic period in which, for the first time in the Court’s history, it was confronted with the crisis of a systemic nature.

1985–2015: The 30 Years of History The formative period of the Court began with the 1982 constitutional amendment (adopted three months after the martial law had been imposed by the generals), but the Constitutional Court Act (CCAct) was adopted only in April 1985, the first composition of the Court was appointed (by the Parliament) in November 1985, and the first judgment was adopted in May 1986. The Court was weak in almost all possible respects. Its jurisdiction as well as the authority of its judgments were limited (while the Court could decide on unconstitutionality of parliamentary statutes, such decisions required subsequent examination by the Parliament and could be nullified by a resolution adopted by a two-third majority of the Chamber). What seemed, however, decisive was that the Court was implanted into a system of the centralized political control exercised by the Communist Party. However, in the end of the 1980s, this system has already been crumbling. This left some space for more independent action. In brief, in 20-plus cases, the Court mostly reviewed (and invalidated) regulations issued by the cabinet and ministers. At the same time, the Court managed to avoid entering into more sensitive fields of political controversy. In other words, the Court maintained a low equilibrium,3 but it allowed the Court to gain some legitimacy – an asset necessary to survive the future process of transformation. The summer elections of 1989 marked the beginning of the transformation process. This was a genuine (albeit, peaceful) revolution and no area of public life was immune to profound changes. However, unlike as in most other countries of the region, Polish political elites appeared unable to agree upon a new constitution. It took eight long years before the Constitution of April 2, 1997 entered into life. In the meantime, there was a patchwork of constitutional texts of different political orientations and origins. The Constitutional Court had to find its place in this process. It successfully faced the first challenge, namely, to survive in the new political environment. Now, the problem was to establish a sufficient 3

Garlicki, Constitutional Court of Poland, p. 19, in reference to concepts developed by T. Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003), p. 74.

   



legitimacy for its actions. I do not think that the new political elites perceived the Court as an “insurance policy,” in Ginsburg’s understanding of this term.4 The, more or less, unanimous acceptance for the Court’s continuation should rather be explained by the “Westernoriented” perspective of the new regime. It was clear that constitutional adjudication (entrusted to a separate constitutional court) was regarded as one of the obvious features of the democratic constitutionalism. But, the powers of the Courts remained weak and its established case law was limited to a few areas of rather technical nature. Paradoxically, it was the lack of a new constitution that allowed the Court to find its place in the new reality. The very nature of the “rule-of-law” concept required that the transformation had to remain within a certain frame of higher norms. And, as long as the political branches were not able to provide such norms, it was the Constitutional Court that entered into this empty space. The Court’s activism provoked numerous discussions and, quite often, the legitimacy of judicial constitution-making was put in doubt. But, in the final outcome, the new role of the Court contributed to its institutional stabilization and to the reinforcement of its political recognition. The latter problem has played a prominent role in the constitutional debate in 1995–1997. While there was no disagreement as to the Court’s continuation in the new system, there were numerous differences as to the powers of the Court. Nevertheless, the new constitution strengthened the authority of the Court and removed most of the original limitations on its powers. The Court was included into a comprehensive system of “checks and balances” as well as into the system of human rights guarantees. In the political perspective, it seems that, unlike in 1982–1986 and 1989–1990, the drafters of the new constitution had in mind also the “insurance function” of constitutional adjudication. In more general dimension, the mission of the Court was to protect the essential features of the new constitutional order (described in the constitution as “the Third Republic”). In a more pragmatic dimension, the Court was meant as a “non-monopolization-guarantee,” that is, as an institution that should not be (immediately) affected by alternating political majorities and should ensure that political alternance remains within constitutionally established limits.

4

Ginsburg, Judicial Review in New Democracies, pp. 22ff.



 

The 1997 Constitution was drafted as a codification (confirmation) of concepts and practices that have developed in Poland since 1989 and reflected the European context of the Polish transformation. To a considerable extent, it was a constitution of continuation. Nevertheless, the role of the Court had to change. It was no longer operating in “a constitutional void,” thus, its basic mission, which, as before, required a good deal of creativity, was now to adjust its case law to the new constitutional context. As the new constitution was rather elaborate in respect to individual rights, it was quite natural that the Court’s jurisprudence began to focus on this area. It was natural that also the Court’s case law was based on continuation: Its assumption was that most of the preconstitutional interpretations (particularly in respect to the Rechtsstaat-principle) retained its validity. Within the next eight years (1997–2005), the Court was able to reconfirm its position and to develop into an obvious component of the new constitutional system. Its case law was, to a considerable extent, concentrated on fundamental rights, but it addressed also several institutional matters, particularly as concerned the judicial independence and the local government autonomy. The Court managed to act as an integrated body and to avoid “head-on collisions” with the political branches of government. The situation became less comfortable after the 2005 parliamentary elections when the new majority of the Law and Justice Party (LaJ) launched a new project that drastically differed from the hitherto established patterns. The political conflict soon expanded into the area of constitutional interpretation and, as neither the Constitutional Courts nor other supreme courts were ready to yield, it culminated in attacks on the judicial branch. It was only in the fall of 2007 when new elections restored the previous, more moderate, parliamentary majority. This was a good opportunity to put in motion the “insurance function” of constitutional adjudication. The Court emerged from the crisis with a strengthened authority. On the one hand, due to its courage and persistence, the leading lines of the case law remained intact. On the other hand, the Court demonstrated its ability to act as a check against projects and practices uniformly supported by the political branches of government. Although this success was not without price, it confirmed the legitimacy of the Court. It seemed, therefore, that – in the post-2007 period – the Court’s position became more recognized and more independent. Although,

   



more conservative trends were now more visible in the Court’s approach to fundamental rights, it did not divert it from the general principles of interpretation established under the 1997 Constitution.5 The Court had fewer opportunities to deal with the institutional constitutional law and, as in previous years, its decisions were focused mostly on the judicial branch and the local government. Several important judgments dealt with the position of European Union law and, in particular, with the assessment of constitutional aspects of the European integration. The Court elaborated a balanced jurisprudence, based on a “friendly approach” to the European Union law, but – at the same time – sending some warnings to Brussels and Luxembourg.6

October 2015–December 2016: The 15 Months of Crisis In 2015, presidential and parliamentary elections7 resulted in an entirely new political situation. The LaJ achieved an overwhelming victory allowing it to control the Parliament, cabinet, and presidency. It soon

5

6

7

Cf. J. Kantorowicz and N. Garupa, “An Empirical Analysis of Constitutional Review Voting in the Polish Constitutional Tribunal, 2003–2014,” Constitutional Political Economy 27 (2016), 66–92. See, e.g., K. Kowalik-Banczyk, “Sending Smoke Signals to Luxembourg: The Polish Constitutional Tribunal in Dialogue with the ECJ,” in M. Claes, M. de Visser, P. Popelier, and C. van den Heynig (eds.), Constitutional Conversations in Europe (Cambridge, Antwerp, and Portland: Intersentia, 2012) pp. 269ff. The presidential elections took place in May 2015 and on August 6, Mr. Duda (recommended by the LaJ Party) assumed the office. The parliamentary elections took place on October 25, 2015, the new Sejm held its first session on November 12, 2015, and, on the same day, the term of the 2011 Sejm ended. (The constitution provides that the term of office of the old Parliament comes to the end on the day of the first session of the new Parliament.) For more detailed presentations of the events see: L. Garlicki, “Die Ausschaltung des Verfassungsgerichtshofes in Poland? – Disabling the Constitutional Court in Poland?,” in B. Banaszak and A. Szmyt (eds.), Transformation of Law Systems in Central, Eastern and Southeastern Europe in 1989–2015. Liber Amicorum in Honorem Professor Rainer Arnold (Gdansk: Gdansk University Press, 2016), pp. 63 ff.; T. Koncewicz, “Of Institutions, Democracy, Constitutional Self-Defence and the Rule of Law: The Judgments of the Polish Constitutional Tribunal in Cases K 34/15, K 35/15 and Beyond,” Common Market Law Review 53 (2016), 1753–1791. See also factual information contained in opinions of the Venice Commission: Opinion no. 833/2015 On Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, 11 March 2016, CDL-AD(2016)001; Opinion no. 860/2016 On the Act on the Polish Constitutional Tribunal, 14 October 2016, CDL-AD(2016)026.



 

transpired that the new majority openly supported a systemic change in the system of government. As the LaJ Party did not reach constitutional majority, its actions had to be limited to legislative changes and new political practices. Inevitably, it had to produce a head-on confrontation with the Constitutional Court. Theoretically, the Court should remain safe, at least for the immediate future. Its status and jurisdiction were regulated by the constitution, so could not be modified but by a constitutional amendment. Furthermore, the constitution provided that the constitutional judges are appointed for nine years and cannot be removed by any political branch of government. The nine-years-term, combined with the parliamentary appointment of judges, was meant to serve as a check on concentration of political power: in principle, judges appointed by the outgoing Parliament should continue during at least one subsequent legislature. Such interpretation did not appear compelling to the new parliamentary majority. In a serious of measures, it decided to attack both the personal composition of the Court and its institutional capacity to operate. This particular “reconstruction technique” was, in many aspects, similar to measures applied, a few years earlier, by the Orbán government in Hungary. The first stage of the crisis was related to unsuccessful attempts to “pack” the Court with new judges. By a sheer coincidence, the term of office of five (out of 15) judges of the Constitutional Court was scheduled to elapse at the end of 2015: on November 5 (three judges) and in early December (two judges). In June 2015, the (old) Parliament adopted a new CCAct. This was, in general, a noncontroversial regulation, replacing the previous Act of 1997. However, the parliamentary majority could not resist the temptation to take care of all five vacancies in the Court. Accordingly, the new CCAct modified the existing deadlines and five new judges were appointed on October 8. While three of them could assume their seats before the end of the Parliament’s term, the mandate of two others would begin only in December well after the start of the new Parliament. This gave rise to a sequence of political and legislative moves, of – at best – a dubious compatibility with the constitution. The president of the Republic refused to administer the oath of office in respect to all five judges. The Parliament, in an unprecedented move, declared that all five October appointments had been invalid and appointed five new judges immediately sworn in by the president of the Republic.

   



These decisions were challenged by the opposition. The Constitutional Court, in the judgment of December 3, 2015 (K 34/15),8 examined the constitutionality of the provisions of the 2015 CCAct and held that appointments to the Court should be made by the Parliament that sits when the term of office of the departing judge has elapsed. It meant that while three October appointments should be considered valid and effective, the other two had been defective. In another decision, the Court refused to review the validity of individual appointments, arguing that its jurisdiction is limited to review of legal regulations and does not extend to individual measures.9 The president of the Republic declined to comply with the judgment K 34/15 and maintained (together with the ruling majority) that all new appointments had been validly made by the Parliament. Nevertheless, the president of the Court decided that only two “new” judges who had filled the vacancies arising only in December could assume their office and refused to accept appointments of the remaining three “new” judges. The net result of this confrontation was that the Court was composed only of 12 judges of uncontested mandate, whereas the three seats were claimed by two packs of three judges – “old” and “new” ones. As the three “new” judges were not allowed to sit by the president of the Court, the political branches of government began to contest the legitimacy of the actual composition of the Court and – very soon – this was extended to attacks on the legitimacy of the Court (and – on validity of its judgments). The “court-packing plan” was, therefore, unsuccessful on both sides: The outgoing majority was unable to secure effectivity of its appointments and the new majority was able to get only two judges of uncontested status. At the same time, it became clear that there was a strong majority of judges who were not ready to yield to constitutional interpretations defended by the LaJ Party. This opened the second stage of confrontation.10 Now, the ruling majority decided to attack the Court’s procedural capacity to operate.

8

9 10

For the English translation, see: http://trybunal.gov.pl/en/hearings/judgments/art/8748ustawa-o-trybunale-konstytucyjnym (accessed May 12, 2017). Decision of January 7, 2016, U 8/15 taken in a composition of ten “uncontested” judges. Cf., among others, P. Starski, “Poland at Crossroads – The Constitutional Tragedy Continues,” Junge Wissenschaft im öffentlichen Recht, August 1, 2016, www.juwiss.de/12016.



 

On December 15, 2015, a group of Law and Justice MPs initiated a bill amending several provisions of the CCAct (the so-called December Amendment). In an unusually accelerated procedure, the new law was signed by the president of the Republic on December 28 and, as no vacatio legis was provided, it entered into life on the same day. The December Amendment provided, in particular, that (1) almost all cases decided in the procedure of so-called abstract review shall be heard and decided by the plenary composition of the Court (under the Act of June 25, 2015 as well as under the two previous CCActs, such cases could also be decided by panels of five judges); (2) the plenary composition of the Court may sit only if at least 13 (out of 15) judges are present (all previous CCActs set this limit at nine); (3) the plenary composition shall adopt all judgments and decisions by the majority of the two-third of judges participating (the previous acts require the absolute majority of participating judges); and (4) the plenary composition shall hear cases according to the sequence of their arrival and is not allowed to give priority to any case. It was obvious that in the existing situation, the new regulation, if fully implemented, would deprive the Court of any real possibility to act. There were only 12 judges whose status was fully cleared, so the Court was not able to sit with the (now required) participation of 13 judges. On top of it, the two-third majority requirement, as well as some other procedural modifications, provided additional guarantees that the Court would not be able to take any decisions without the approval of judges appointed by the present majority of the Sejm. Thus, the December Amendment was intended to have a twofold effect. For the immediate future, it blocked the operational capacity of the Court so long as the appointment controversy had not been solved. From a more long-term perspective, it guaranteed that no important case would be decided without the participation and consent of the judges appointed by the new majority. The December Amendment was challenged before the Constitutional Court by the First President of the Supreme Court, the National Judicial Council, the Ombudsman as well as by two groups of the opposition members of Parliament (case K 47/15). However, as the December Amendment had already entered into life, it gave rise to an immediate question, namely to what extent the procedural provisions provided in the Amendment were applicable to the Court’s proceedings in this case. Its application would either force the president of the Court to recognize mandates of the “new” judges (which,

   



in all probability, would exclude any chance to reach the required majority of two-third) or to stop the proceedings as the Court was no longer allowed to proceed without at least 13 judges present. The Court held that in such an unusual situation, the general constitutional provisions should apply in a direct manner, that is, should replace the detailed regulation provided on the legislative level. Therefore, the Court – sitting in the composition of 12 judges – held that the case would be decided in this composition and that other provisions of the December Amendment would not be applied in the Court’s proceedings. Two newly appointed judges dissented. In the judgment K 47/15 of March 9, 2016, the Court (by a 10–2 vote) decided the case on the merits. The December Amendment was practically demolished. On the one hand, the Court declared its procedural unconstitutionality due to substantial vices in the procedure of its adoption by the Parliament. On the other hand, almost all reviewed provisions were held to be unconstitutional in their content and substance. The judgment should have ended the controversy about the December Amendment as the Court nullified it in its entirety and as Article 190 sec. 3 of the constitution provides that judgments of the Constitutional Court are final and universally binding. However, the Prime Minister’s Office reiterated the claim that the Court’s judgment had been adopted in violation of the procedure established by the December Amendment. Therefore, it cannot be regarded as a regular “judgment” and cannot be published in the Journal of Laws.11 The government’s position did not have any backing in the constitution12 but was, nevertheless, maintained in the subsequent months. This magnified the crisis well beyond its original confines. The uncertainty

11

12

In effect, the judgment K 47/15 (as well as the later judgment K 39/16 – see note 13, infra) was published only in the Official Collection of Judgments and Decisions compiled by the Constitutional Court. However, in spring of 2017, the new leadership of the Court decided, in a quite unprecedented manner, to remove both judgments from the Official Collection and to delete their English-language versions from the site of the Court. It was only one year later when, by a special legislative provision, both judgments were published in the Journal of Laws and reintroduced into the Official Collection. For the English version of both judgments see: http://konstytucyjny.pl/nieopublikowane-wyroki-tk-wwersji-angielskiey. See also the assessments of the Venice Commission (Opinion of 14 October 2016, CDLAD(2016)026, par. 74ff (see note 6) and of the European Union Commission (Commission Recommendation of 27.7.2016, C(2016) 5703 regarding the rule of law in Poland).



 

concerning the personal composition of the Court was now extended to its ability to decide cases and to the legal authority of its judgments. Although the Court continued to work, that is, to hear and decide cases, the number of judgments visibly decreased in the next months and no case of real political importance has been adjudicated. On top of that, it was unclear to what extent such “unpublished judgments” enjoy the binding authority. Most scholars were ready to agree that such judgments could not have an erga omnes annulment effect. At the same time, however, it was maintained that even an unpublished judgment removes presumption of constitutionality of provisions declared as unconstitutional. Hence, other courts are allowed to refuse to apply them in individual cases. The same interpretation was supported by two remaining highest courts: the Supreme Court and (albeit in a less direct manner) the High Administrative Court. The ruling majority responded to this stalemate by adopting a new Constitutional Court Act of July 22, 2016. The act was presented as a constructive response to the criticism expressed by the European Union Commission and the Council of Europe, in fact, however, several of the “disabling” procedural provisions of the December Amendment have been either maintained or developed. The new act was promptly challenged before the Constitutional Court and, before it entered into life, the Court, in the judgment of August 11, 2016 (K 39/16) managed to rule (by the majority 9–3) that most of the disabling provisions were unconstitutional and, therefore, null and void.13 The Court recognized that the 2015 CCAct was replaced by the new legislation, but held that unconstitutional provisions of the 2016 CCAct (particularly those dealing with procedural and operational matters) cannot bind the Court in future adjudication. As it was easy to foresee, the government disagreed. It was declared that the judgment was adopted in violation of the CCAct (as modified by the December Amendment), the official publication of the judgment was refused, and the 2016 CCAct was regarded as binding in its entirety. The spring scenario was, therefore, repeated almost without variations as all subsequent judgments of Court were regarded as irregular and remained unpublished. In the political dimension, the Court and its judges were a target of constant attacks, intimidation, and harassment.

13

For the English version of this judgment see http://konstytucyjny.pl/niepublikowanewyroki-tk-w-wersji-angielskiej. See note 11.

   



These moves did not remain totally unsuccessful. The Court was getting tired of the ongoing confrontation, the term of office of some judges (including its president) was approaching the end,14 and the general political situation in Poland showed more and more features of a “stabilized backsliding” from the rule of law. In brief, it began to transpire that very soon the Court may lose its will and ability to resist the political pressure. This was duly considered by the ruling majority. It was assumed that the Court may no longer be as dangerous as it was in the end of 2015 and, therefore, it would not be necessary to maintain procedural deformations of its operation. Furthermore, the “return to (legislative) normalcy” could appease the criticism arriving from the European Union and the Council of Europe. However, the key to such “success” was to control the appointment of the new president of the Court. This led to a particular bifurcation of legislative arrangements. On November 30, 2016, the Parliament adopted two new regulations: the Act on Judges of the Constitutional Court and the Act on Procedure and Organization of the Constitutional Court. Both, in general, reproduced most of the provisions of the CCAct adopted in June 2015. Almost all

14

The 1997 Constitution provided that the president of the Court is appointed by the president of the Republic from among candidates nominated by the General Assembly of the Court (i.e., the meeting of all 15 judges). In practice, the Assembly nominated (by absolute majority) two candidates, each judge being allowed to vote for two candidates. It meant that most of the Court was able to control both nominations, and it did not leave much political discretion to the president of the Republic. This system was mostly oriented at the preservation of the autonomy of the Court. In November 2015, the 2015 CCAct was modified. Now, the number of candidates was increased to three and each judge was allowed to vote only for one candidate. This would ensure that the Court’s “minority,” if sufficiently strong, is able to nominate “its” candidate. Accordingly, the political discretion of the president of the Republic would grow. The Court, in the judgment of 9 December 2015 (K 35/15) ruled that such modification had been unconstitutional. A similar attempt was taken in the CCAct of 22 July 2016. The Court, in its judgment of 11 August 2016 (K 39/16) decided that due to procedural grounds, it was not possible to rule on the matter. The problem was addressed only in the judgment of 10 November 2016 (K 44/16) in which the Court established a binding interpretation of the challenged provisions. The outgoing president of the Court decided then to convene the General Assembly to nominate candidates, but the “new” judges declined participation. Nevertheless, two candidates were nominated, but – as the president of the Republic refused to accept the validity of such nominations – it became obvious that the succession would not be decided before the mandate of the outgoing president has expired.



 

previous “disabling provisions” disappeared from the new texts. Thus, except for some problematic solutions, the new regulation fit to the framework provided by the 1997 Constitution. At the same time, however, the separate act, adopted on December 16, 2016, established socalled transitory provisions applicable to nomination and appointment of the new president of the Court as well as to some other problems in which, in the opinion of the ruling majority, it was still necessary to depart from this framework. The act of December 16, 2016, allowed the president of the Republic to appoint one of the judges as an acting Court’s president once the term of office of the current president has expired. The acting president was to convene the General Assembly of the Court (with the participation of all judges who have delivered an oath of office) to nominate at least two candidates to the presidency of the Court. There were no quorate requirements. Each judge was allowed to vote for only one candidate. The nominated candidates were presented to the president of the Republic who decided on the appointment. This was a “safe” solution because it guaranteed that at least one candidate would be nominated by the judges appointed by the new Parliament. It should be noted that this procedure was quite similar to regulations proposed in November 2015 and July 2016. On both occasions, the Court, in a direct or indirect manner, ruled that such limitations of the Court’s autonomy were unconstitutional. Although the “old” judges refused participation in the General Assembly, it was convened by the acting president. Two candidates (receiving five and one vote) were submitted to the president of the Republic who finally appointed Judge Przylebska as the new president of the Court. There were some attempts to question the validity of this process before ordinary courts, however, in the judgment of September 11, 2017 (K 10/17), the Constitutional Court held that such review remains outside the realm of their jurisdiction. The confrontation between the Court and political branches of government created a particular situation of “dualism.” Two parallel interpretations emerged with regard to the composition of the Court, its ability to operate, and the authority of its judgments. On the one hand, the Court (with support of the remaining segments of the judicial branch) claimed constitutional empowerment to continue its operations and rejected parliamentary interventions into its procedure and personal composition. On the other hand, the political branches of government supported an opposite interpretation, maintaining that, so long as all new

   



judges and all procedural deformations have not been accepted by the Court, its judgments could not be treated as binding. Even if the latter interpretation had no support in the text of the constitution, it was not without a serious factual and political impact. In brief, the one-year confrontation resulted in a tridimensional crisis of constitutional adjudication in Poland: personal, institutional, and jurisprudential. Nevertheless, the Court’s obstinacy allowed it to save its constitutional and political legitimacy (its position being also supported by both the European Union Commission and the Venice Commission).15 In other words, the Court managed to demonstrate that it was able to act in an extremely unfriendly environment and to resist attempts of political absorption. But, at the same time, the number of cases decreased in a visible manner and judgments of political importance became practically limited to regulations concerning the Court. It meant that the new majority appeared quite successful in neutralizing the Court’s potential to review other reforms effectuated since the 2015 elections. In other words, the “insurance function” was exercised only to a limited extent.

2017: The “New Constitutional Court” A combination of four factors became characteristic for the 2017 Court: return to procedural arrangements preceding the crisis, significant changes in the personal composition of the Court, a new composition and style of the Court’s leadership, and a new style of the judicial decisions. As was already mentioned, both acts of November 30, 2016, removed most of the “disabling” procedural provisions adopted previously by the new Parliament. In other words, they restored a satisfactory framework for the constitutional adjudication. What remained to be seen, however, is how this framework would be used by the “new” Court, particularly in protecting its independence and political impartiality. As regards the personal composition, already in the summer of 2017, the number of judges appointed by the current Parliament exceeded 50 percent of seats: The constitutionality of the appointment of two “new” judges was (indirectly) confirmed already in December 2015, the 15

See, however, criticism of the adequacy of the European action L. Pech and K. L. Scheppele, “Illiberalism within: Rule of Law Backsliding in the EU,” Cambridge Yearbook of European Legal Studies 19 (2017), 3–47.

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 

terms of two “old” judges expired during 2016, in December 2016, the new president of the Court unconditionally recognized mandates of the three “contested” judges appointed in December 2015, and finally, two other seats become vacant in January and June 2017. It ensured a solid majority for “new judges,” but – in the constitutional dimension – it did not end the controversy on the three appointments made in December 2015. As the validity of these appointments continues to be challenged, nationally as well as on the European level, it seems that the personal dimension of the crisis has not yet been extinguished. This gives rise to further questions concerning the authority of the judgments, in particular those taken with participation of the “contested” judges. It should be noted, however, that, in the judgment of October 24, 2017 (K 1/17), the Court upheld constitutionality of the provisions confirming the validity of the three appointments in question.16 On top of it, the participation of four “old” judges in adjudicative process was significantly curtailed: On the one hand, the vice president (whose term was to elapse in June) was compelled to use his four-month leave of absence, and on the other hand, the validity of appointment of three other judges (sitting since 2010) was challenged by the Prosecutor General.17 As regards the presidency of the Court, the style of leadership changed considerably. It seems to be less oriented toward continuation, the validity of some judgments adopted in 2016 is no longer recognized, there are problems with harmonious cooperation with other judicial institutions, and radical – institutional and personal – changes took place in the Court’s Registry. The most important question, however, is the content and style of judicial decisions. It is too early for any general assessments. Nevertheless, three observations may already be in place. First, the number of cases decided on the merits diminished: In 2017, the Court adopted 32 judgments.18 At the same time, there was a certain

16

17

18

Judgment of 24 October 2017, K 1/17, adopted by a 4–1 majority (it seems, however, that the authority of this judgment would be much higher had two of the “contested” judges not sat in the five-person composition deciding the case). Case U 1/17, lodged in January 2017, in which Prosecutor General attacked the constitutionality of several provisions of the Sejm Standing Order (as applied to the said appointments). While the case is pending, it was decided that the three judges may be disqualified in cases in which the Prosecutor General participates, i.e., in all important cases heard by the Plenary Court. In 2015, the Court adopted 63 judgments and 110 decisions on inadmissibility; in 2016 – 40 judgments and 61 decisions. So, the “paralyzing” arrangements of the 2016 legislation

   



increase of the number of cases that were found inadmissible due to the procedural reasons. Although, also in the past, the Court has never learned to resist inclination not to decide cases on the merits, the present statistics may signal a new trend. Furthermore, it seems that the Court is more deferential to new legislative measures, although only a handful of such cases have been decided until now.19 At the same time, the Court decided several cases addressing some pending political controversies, particularly in regard to the position of the judicial branch and attempts of its reform.20 As easy to

19

20

were only partially effective. At the same time, however, in 2016, those arrangements were effective in the practical sense: Whereas most of the politically important judgments dealt with the legislation on the Constitutional Court, other legislative arrangements of the new majority escaped the constitutional review. As no “paralyzing” arrangements continued through 2017, there had to be other reasons for the decrease of jurisprudential activity. It is worth observing that both the Ombudsman and the National Council of Judiciary retired several, potentially important motions, from the Court – a move that may be interpreted as a demonstration of their mistrust in the “new” Court. In the only significant case, the Court (judgment of 16 March 2017, Kp 1/17, adopted by a 7–4 majority) upheld modifications of the Assembly Act, in particular, provisions establishing a privileged position of so-called regularly held assemblies. In the judgment of 20 June 2017 (K 5/17), the Court held that some of the provisions of the 2011 National Judicial Council Act, dealing particularly with the procedure of election of judges to the National Judicial Council, were unconstitutional. The judgment was almost immediately invoked by the political branches of government to justify its proposal of a drastic reform of the National Judicial Council. See also judgment of 17.7.2018, K 9/17. In the judgment of September 11, 2017 (K 10/17), the Court ruled unconstitutional any interpretations of the Code of Civil Procedure that would allow ordinary courts (as well as the Supreme Court) to decide on the validity of appointment of judges and presidents of the Constitutional Court. The judgment was respected and several proceedings, particularly concerning the appointment of the Court’s president have been discontinued. See also judgment of October 24, 2017, K 1/17 (supra, note 14). In the judgment of October 24, 2017 (K 3/17), the Court ruled on unconstitutionality of some provisions on the nomination of candidates for the position of the First President of the Supreme Court. At the same time, the Court held that it could not affect the validity of the appointment of the current First President, as such decisions of the president of the Republic cannot be challenged before the Constitutional Court. Whereas the latter holding corresponded with the judgment of September 11, the whole case should be seen in the context of sharp attacks against the Supreme Court and attempts to a radical reform of that institution. Finally, in the controversy concerning the scope of the presidential pardoning power, the Supreme Court held that the president can act only after a final court verdict has been adopted in the case (interpretative decision of May 31, 2017, KZP 4/17). Before this decision could be applied in the case of a high-ranking politician, the speaker of the Sejm requested the Constitutional Court to clarify whether the Supreme Court has jurisdiction



 

guess, in none of them did the Court’s judgments collide with interpretations defended by the political branches of government. Finally, such evolution of the case law gave rise to negative appraisals in the doctrine as well as among other judicial bodies. On the one hand, it cannot be denied that jurisprudential changes may be perceived, at least to some extent, as a natural consequence of the changing personal composition of the Court. On the other hand, however, it was also alleged that, in some highly political cases, the timing and content of the Court’s decisions could have created an impression of certain coordination or cooperation with the political branches of government. Should the latter diagnosis be confirmed in the future actions of the Court, a new dimension of crisis would emerge enhancing not only the legitimacy of the case law but also the legitimacy of the Court as such. This would be a very dangerous evolution as it would affect the Court as an institution and confirm allegations as to the lack of independence and impartiality of the “new” Court. It should not be forgotten that the principal function of each constitutional court is to protect the constitution (and, in particular, its “higher values” resulting from the common constitutional tradition of Europe) from the political branches of governments and not to protect the political branches of government from the constitution. The key to a reasonable solution remains in the hands of the political world. At the same time, however, the present institutional and procedural arrangements allow the Court to act independently and in bona fide manner. It means that the definition of its ultimate role within the system of “checks and balances” lies also within the responsibility of the Court, its presidents, and its judges.

Conclusion The Polish crisis is not the only one in our part of the world. There are more examples of countries in which, quite suddenly, the constitutional system of government began to collapse in a well-orchestrated sequence of events.21 And, the departure (backsliding) from the established

21

to determine the scope of presidential powers. While the case (Kpt 1/2017) remains pending before the Constitutional Court, all procedures before the ordinary courts had to be suspended indefinitely. T. Ginsburg and A. Huq describe this as “constitutional retrogression,” i.e., “a process of incremental (but ultimately still substantial) decay in the three basic predicates of democracy – competitive elections, liberal rights to speech and association, and the rule of law” (“How to Lose a Constitutional Democracy,” 65 UCLA Law Review 78 (2018), 16.

   



patterns was not due to a military coup d’état or a revolution. It followed perfectly democratic elections won by parties (groups) openly rejecting the past and contesting the state constitution as one of the pillars of this past. In other words, it would be difficult to deny certain legitimacy to the new political configuration, at least within the traditional terms of democracy and electoral legitimation. Sometimes, as is also the case in Poland, the electoral support continues or even increases in the postelections period, even if the content of the “governmental program” may remain very far from concepts of democracy, rule of law, and separation of powers established in the European tradition. The term illiberal democracy was elaborated to describe such combination of electoral (democratic) legitimation and (to put it in mild terms) problematic (antidemocratic) content of the transition process. But, it should be kept in mind, that similar trends were present also in pre– World War II Europe and that the tragic experience of this period found its constitutional conclusion in the concept of “militant democracy” and in the determination of limits for democratically legitimated change. Both supranational organisms, the European Union and the Council of Europe, are based on such premise. As regards constitutional courts, criticism based on the “democracy argument” may be treated as another, not particularly refined, attempt to revive the debate on “counter-majoritarian difficulty.” But, at least in post-Soviet Europe, many arguments and proposals are not intellectually sophisticated. Rather, they fall not far from the traditional Communist idea that there can only be a single center of political power and decision. This may invite some analogies with both conceptual pillars of the Communist system: the dominant position of the party (or, rather, of its leadership) and the principle of “the unity of state power” (understood as rejection of separation of powers). Such an approach does not leave too much room for independence of a constitutional court. This is often accompanied by a nihilistic approach to the constitution (particularly, where constitutional amendments remain beyond the reach of the ruling majority) articulated in blunt statements like: “It is the will of the people, not the law that counts.”22 It leads to different forms of “constitutional nihilism”: abuse of “neutral” constitutional provisions,

22

Constitutional retrogression should be distinguished from “authoritarian reversion,” i.e., from a rapid, wholesale collapse into authoritarianism (ibid., 13). T. Koncewicz, “A Constitution of Fear,” Verfassungsblog, November 16, 2017. See http:// verfassungsblog.de/a-constitution-of-fear/.



 

elaboration of twisted constitutional interpretations, inflation of temporary/provisional regulations of exceptional nature, and – as the ultimate weapon – open disregard to certain constitutional rules and principles. All these techniques are based on a common premise, namely on challenging the role of the constitution as the “supreme law of the land.” In effect, the aggregation of ordinary laws and political practices creates a de facto change of the existing constitution.23 The present success of “illiberal democracies” can be attributed to both successful economic development and sociotechnical measures integrating voters around populistic slogans and concepts. In the legislative area, it finds its expression in the concept of “constitution of fear”: The process of changes “is defined by suspicion, exclusion, drive for retribution and settling the scores.”24 In the institutional dimension, this process is driven by the distrust toward a pluralistic concept of state and society, that is by the simple belief that if “we” are right then the “others” must be wrong. The analogy with the Communist vision of society as an aggregate of “working people” and of “enemies of the people” is here difficult to resist. A logical consequence of such an approach is the elimination of mechanisms based on the separation of powers and on the concept of checks and balances. Although illiberal democracies originate from electoral success, once the new majority acquires control over the legislative, cabinet, and presidency, there are no impediments to manipulative modifications of electoral laws for the future. There are also no obstacles against the political absorption of different bodies and authorities, which were meant to function as institutional checks, and therefore should remain separated from current political majorities. New legislation on civil service, public media, prosecutorial authorities as well as the army and state security institutions allowed a deep personal and structural

23

24

W. Sadurski describes this process as “basically a constitutional coup d’état” and observes that “in a very technical, descriptive sense, a de-facto change to the constitution without following the amendment procedure but through sub-constitutional laws is what I call a constitutional coup d’état. The principle of supremacy of the constitution is that you cannot change the constitution by simple statutes.” W. Sadurski and M. Steinbeis, “What Is Going on in Poland Is an Attack against Democracy,” Verfassungsblog, July 15, 2016. See http://verfassungsblog.de/what-is-going-on-in-poland-is-an-attackagainst-democracy/. Koncewicz, A Constitution of Fear.

   



modification of those institutions. In Poland, this process has already been completed almost in full.25 Two basic techniques have been used to achieve total control of the state machinery. Both evoke historical connotations of rather unfortunate nature. The technique of “absorption” (Gleichschaltung) relies on the sequence of provisional (one-time) measures starting with modifications on the legal status (in particular, the term of office) of a particular body or authority, always followed by personal changes and, sometimes, also by appropriate cuts in its powers and independence. In the end, such body or authority may reappear in almost identical “legal shell” but also under a full political control of the ruling structures. The technique of “neutralization” or “disablement” (Ausschaltung) is used where “absorption” is not possible due to the existing constitutional constraints. It is focused on measures attacking operational capacities of the body in question. Its personal composition may be challenged, in full or in part, its procedures may be complicated beyond any reasonable need, access to it may be curtailed, and the validity of decisions may be questioned or simply ignored. In effect, such body or authority may retain its previous personal composition and political independence, but its ability to act becomes seriously affected, de jure as well as de facto. This was exactly the experience of the Polish Constitutional Court in 2016. The constitutionality of particular measures may vary and, often, only few of them are blatantly incompatible with the constitution. What counts, however, is their cumulative effect on the affected body measured by its capability to exercise its functions in an independent and unbiased manner. Any destruction of such capability is, by itself, unconstitutional.26 25

26

As such absorption affects the very identity of the constitutional system, it is characterized by M. Wyrzykowski (“‘Hostile Take-over’ of the Constitutional Order,” in Challenges for Competition Protection and Market Regulation [Warsaw: C. H. Beck, 2017], pp. 831–832) as “hostile takeover” and T. Koncewicz, “Constitutional Capture in Poland 2016 and Beyond: What Is Next?,” Verfassungsblog, December 19, 2016. See http:// verfassungsblog.de/constitutional-capture-in-poland-2016-and-beyond-what-is-next/ as “(un)constitutional capture.” W. Sadurski, “How Democracy Dies in Poland: A CaseStudy of Anti-Constitutional Populist Backsliding,” Sydney Law School: Legal Studies Research Paper, January 2018, http://ssrn.com/abstract=3103491, proposes the term “Anti-Constitutional Populist Backsliding.” See, particularly, the judgments of the Constitutional Court in cases K 34/15 and K 39/16. The position of the Court found strong support in the Polish doctrine.

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 

The crisis of such magnitude could not leave the judicial branch untouched. From the ideological point of view, the strive for a total control over the state machinery cannot be completed so long as courts remain separate and independent. From the pragmatic point of view, independent courts may be cumbersome as they are vested with significant powers regarding legal (constitutional) dimension of the ongoing controversies. The latter reason becomes particularly compelling because the Polish variation of “illiberal democracy” invests a great deal of time and trouble into appearance of constitutionality and legality. Although, constitutional nihilism may determine the substance of many actions and measures of the ruling majority, there is still much political attractiveness in squeezing them into constitutionally required limits. It is particularly important due to the constraints resulting from Poland’s membership to the Council of Europe and the European Union.27 The courts (and, in particular, the Constitutional Court) represent both a danger and an asset in this respect. A danger because it is quite obvious that many steps of the ruling majority are hardly compatible with the existing constitution. This puts the Constitutional Court into a key position as only the Constitutional Court has a power to decide on the unconstitutionality of a disputed measure or regulation. Such decision ends the legal dimension of the controversy. Although the political branches may, as shown in the recent practice, refuse to comply, it destroys legitimacy of the contested measure and cast serious doubts on its validity, internally as well as internationally. In other words, the continuation of an independent exercise of “insurance function” by the Constitutional Court may easily deprive the governmental action of any “appearance of constitutionality.” An asset because once the courts (and, in the first place, the Constitutional Court) become absorbed into the “new order,” their decisions may legitimize new regulations and measures, particularly, by confirming their constitutionality. Furthermore, there are many other ways in which courts may be instrumentalized, that is, made to intervene in political controversies in the right time and in the right manner.28 So, absorption 27

28

See A. Drzemczewski, “The Council of Europe and the Rule of Law,” Human Rights Law Journal 37 (2017), 179–184. And, last but certainly not least, the courts have extensive powers to decide on the validity of elections whereas the Constitutional Court may review the constitutionality of electoral legislation.

   

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or (at least) neutralization of different segments of the judicial branch can hardly be skipped from the political agenda of any “illiberal democracy.” However, such absorption/neutralization appears not easy in practice, at least so long as the ruling majority has not decided to abandon the “appearance of constitutionality.” The experience of the Polish crisis showed that the Constitutional Court has been able to protect its independent position for about a year. Although, this stage seems now to be closed, it gave more time to the remaining segments of the judicial branch.29 The controversy around the Polish Constitutional Court is but an element of the general crisis of the existing constitutional and political system. The nature of the crisis reflects a systemic backsliding from the (dominating in Europe) understanding of such general concepts as democracy, constitutionalism, rule of law, and separation of powers. At the same time, the Polish situation is particularly interesting as (unlike in Hungary) the ruling party does not have a constitutional majority in Parliament and, due to diverse reasons, does not want to abandon its “appearance of constitutionality” approach. That was why the position and powers of the Constitutional Court made it one of the principal targets of the reform attempts of the new majority. But the Court (together with other segments of the judicial

29

Nevertheless, in the Spring 2017, a far-reaching reform of the judiciary (including the Supreme Court and the National Council of Judiciary) has been effectuated by the ordinary legislation. Although regulation concerning the Supreme Court and the National Council of Judiciary did not enter life due to the presidential veto, the position and independence of the ordinary courts was significantly affected. The new version of the vetoed laws was adopted by the Parliament in December 2017. For more detailed description and critical assessment see Opinion of the Venice Commission no. 904/2017 – CDL-AD(2017)031 (November 11–12, 2017) where it was observed that the commission “has come to the conclusion that the Act and the Draft Acts, especially taken together and seen in the context of the 2016 Act on the Public Prosecutor’s Office, enable the legislative and executive powers to interfere in a severe and extensive manner in the administration of justice, and thereby pose a grave threat to the judicial independence as a key element of the rule of law” (para. 129). The European Union Commission, reacting to new legislative measures, concluded that “there is a clear risk of a serious breach of the rule of law in Poland” and decided to propose to the council to launch the procedure under Article 7(1) of the Treaty on European Union (European Commission, press release, December 20, 2017, http://europa.eu/rapid/press-release_IP17–5367_en.htm).

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branch) was the only institution that had some resources to resist pressure. The 15-months-long controversy around the neutralization of the Court delivered an animated example of the rise and demise of the “insurance function” of constitutional jurisdictions. It also confirmed that, in the final effect, courts and judges may not survive a frontal collision with the political branches of government.

7 Democracy, Political Crisis, and Constitutional Jurisdiction The Leading Role of the Brazilian Supreme Court

  í                            

Introduction Brazil has been under civil rule since 1985 and under a democratic constitution since 1988. We are one of the largest contemporary mass democracies – about 140 million people voted in the 2014 presidential elections – and one of the ten largest economies in the world. In recent times, however, we have experienced an acute political, economic, and social crisis, with scandals of broad-spectrum corruption, economic recession, and social setback. The crisis has brought important challenges for the Brazilian democratic institutions, including the Supreme Court (Supremo Tribunal Federal, [STF]). Following a global trend,1 Brazil, particularly in the last two decades, has experienced a vertiginous institutional rise of the judiciary branch, most notably of the Supreme Court. This movement has been characterized by a transfer to judges and courts of the responsibility to decide relevant political, social, and moral issues, previously settled exclusively through the traditional political organs, namely the legislative and the executive. The civil society and the political actors started resorting to the judiciary for measures and solutions on the most varied array of issues. This is known as the phenomenon of judicialization. Judicialization is, most frequently, an inescapable fact, deriving from the institutional design adopted in the vast majority of democratic countries. In the Brazilian case,

The final English version was edited by Luna van Brussel Barroso (Harvard Law School exchange student, 2017). 1 C. N. Tate and T. Vallinder, The Global Expansion of Judicial Power (New York: New York University Press, 1995).

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this leading role is heightened by three singularities: (1) comprehensive constitutionalization, where the Constitution is used to regulate matters that in other parts of the world are regulated by ordinary legislation; (2) a hybrid system of judicial review, which facilitates access to the Supreme Court; and (3) an original jurisdiction of the Supreme Court in ordinary criminal proceedings against high-ranking authorities, which ultimately gave the Court great visibility and a leading role in the fight against corruption. Judicial activism, which is different from judicialization, is not a fact but an attitude, a deliberate choice for a specific and proactive way of interpreting the Constitution, so as to expand its meaning and scope. This activist approach manifests, among other ways, in the direct enforcement of the Constitution upon situations not expressly contemplated in the text; in declarations of the unconstitutionality of normative acts based on less stringent guidelines and abstract principles; and in an interference in the definition of public policies and in essentially political issues. Normally, it ensues in situations of retraction of the legislative branch, of detachment between the political class and civil society, which prevents social demands from being answered in an effective manner. Additionally, it may arise from the need for certain social advances that cannot be achieved through majority politics. The opposite of activism is judicial self-restraint, where the judiciary seeks to reduce its interference in the spheres of action of the other branches of government. In times of crisis, characterized by fragile political institutions and low representation, the tendency to judicialize life is amplified, as has recently been the case in Brazil. The question, therefore, is how to adjust the level of activism of constitutional courts and supreme courts in such delicate moments. The power of the Brazilian Supreme Court and the varied roles of constitutional jurisdiction are the subject of this chapter, which is divided into three parts. In the first part, we briefly outline some institutional factors of the Brazilian model of constitutional justice that have heightened judicialization in the country. In the second, we recollect some examples of the most politically and socially influential decisions in the recent history of the Supreme Court, which reveal that the Court, triggered by demands from social and political actors, has expanded its sphere of action. In the third, we seek to demonstrate that the supreme courts and constitutional courts in general, and the Brazilian Supreme Court in particular, play three different roles which may serve to justify this more expansive performance.

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The Constitutional Jurisdiction in Brazil: A Unique System The 1988 Constitution and the Profile of the Brazilian Supreme Court after Re-Democratization In Brazil, the 1988 Constitution represented the transition from dictatorship to democracy and, in a healthy euphoria of recovery of public freedoms, the constituent process enjoyed wide and intense popular participation. The document that resulted from this process is analytical (often redundant) and ambitious. It is vast – only the Indian and Nigerian constitutions contain more words than ours – and extensive – there are constitutional norms that define public policies and regulate, to a greater or lesser extent, different branches of law. Comprehensive constitutionalization has removed from the legislature matters that are typically subject to majority politics. It has, thus, favored the judicialization of several controversies of extreme relevance for the country. As intuitive, to the extent that an issue – whether an individual right, a positive obligation by the state, or a public policy – is disciplined in a constitutional norm, it becomes a potential judicial claim, which can be formulated in a lawsuit. Nevertheless, despite the fact that the 1988 Constitution made judicialization possible, the necessary conditions for a more expansive role of the Supreme Court took over a decade to arise. This is so because, even though the Constitution was replaced, the composition of the Court remained the same, with the justices appointed by the old regime, who adopted a “retrospective” interpretation of the constitutional text, to defer the effectiveness of its norms. It was only from the early 2000s that the Supreme Court, from then on composed of new justices who no longer owed their investiture to the military regime, began to occupy a prominent role in national life.

The Brazilian Model of Judicial Review In addition to the comprehensiveness of the constitution, the Brazilian model of constitutional jurisdiction is also responsible for a certain prominence of the Supreme Court. Brazil adopts a hybrid or mixed judicial review system, which combines aspects of the American and the European systems. From the American system, we adopted the decentralized and concrete review: Each judge or court interprets the Constitution when judging the cases submitted, having the prerogative to reject the application of a norm considered to be unconstitutional. The

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constitutional issues decided by judges and courts may be submitted, as last resort, to the Brazilian Supreme Court through a petition known as extraordinary appeal. From the European system, we adopted the possibility of filing actions directly before the Supreme Court, in which cases the constitutionality of a law is discussed in the abstract (i.e., independently of a case or a controversy). There are several instruments for this centralized judicial review, such as the direct action of unconstitutionality (ADI), the direct action of unconstitutionality due to omission (ADO), the declaratory action of constitutionality (ADC), and the claim of noncompliance with a fundamental norm (ADPF). The range of bodies, public agents, and private entities that have the legitimacy to file direct constitutional actions before the Court is extremely wide: this power may be exercised, for example, by the president of the Republic, the prosecutor general, the state governors, the federal Senate, the Chamber of Deputies, and the state legislative bodies, as well as by any political party, the National Bar Association, and associations representing class interests on a national scale. As an outcome of this model, each and every issue of some relevance can be brought for discussion to the Supreme Court. Yet, the facilitated access to the STF’s jurisdiction is complemented by two mechanisms oriented toward the democratization and openness of the judicial review to the influxes of civil society. The first one is the possibility that the Rapporteur Justice convene a public hearing, intended to gather depositions from civil society and experts with experience and authority on the subject under discussion, before the trial occurs. The second is the admission of amici curiae, or entities and representative bodies that participate in the suit by giving opinions on the constitutional issues relevant to the case, although they are not formally parties to the suit. Both instruments allow the Court to broaden the dialogue with society, opening itself to the varied points of views on the issues under discussion and enabling the gathering of information for the settlement of the constitutional controversy. Another peculiarity of the constitutional justice system in Brazil is the live broadcast, on public TV and YouTube, of the entirety of the Court’s sessions, including hearings, debates, justices’ individual votes, and announcement of the Court’s decision. There are many critics of this model, who argue that it hinders achievement of consensus and presents the risk of judicial populism, insofar as justices become public figures and tend to be more heavily influenced by public opinion. In practice, one of the major problems caused by broadcasting was the increase of votes’

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length, verified in empirical research.2 This is not to say that this is a blueprint that should be universalized; the truth is that among us, the democratic gains of this model are greater than its losses. Brazil is a country in which the social imaginary assumes that behind every closed door dark transactions are taking place. In this context, the possibility that the population watch 11 judges intensely debating to reach a solution brings transparency to the decision-making process, in addition to enhancing the didactic attribute of the judgments and allowing for greater social control over decisions of the highest court in the country, which then start to be discussed daily in the media, on social networks, and even at bar tables.

The Criminal Jurisdiction of the Supreme Court: Political Crisis and Corruption Finally, a third singularity of the Brazilian model that has given the Supreme Court a leading role in the national context is its original criminal jurisdiction. The 1988 Constitution establishes that a group of high-ranking authorities be tried for common criminal offenses (i.e., those other than malversation) directly before the Supreme Court. Its drafters certainly did not predict that this competence would occupy so much of the Supreme Court’s agenda, nor that it would have so much impact in the political guidance of the country. From a quantitative point of view, the recent and grave corruption schemes uncovered by the public prosecutor’s office and the federal police, especially in the “Mensalão” and Car Wash operation, have caused a huge increase in the volume of investigations and criminal prosecutions before the Supreme Court. The Car Wash operation, still underway, has revealed the existence of a gigantic network of corruption in action, unfolding a sophisticated scheme of conferral of improper advantages to private companies (mainly contractors) in exchange for the payment of bribes to directors and employees of state-owned enterprises, as well as to political parties and politicians, especially through campaign financing. The initial target of the investigation was Petrobras, but the plea bargains celebrated since evidenced the systemic dimension of corruption in Brazil. The suspicion that the relationship between 2

F. M. Fonte, A Sociedade Aberta de Telespectadores: Televisionamento, Opinião Pública e Legitimidade da Jurisdição Constitucional. Unpublished Mimeo. (Doctoral thesis, Rio de Janeiro State University – UERJ, 2016).

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certain business sectors and the political world was based on spurious exchanges of favors seems to have been confirmed by the progress of these large criminal inquiries. As part of its consequences, there are currently more than a hundred political agents under investigation in the Court, including the president of the Republic, ministers of state, deputies, and senators. From a qualitative point of view, due to the involvement of politicians subject to the original criminal jurisdiction of the Supreme Court in the investigated crimes, the Supreme Court gained yet a new form of intervention in the operations of the other branches. The mere ordinary conduction of proceedings and criminal complaints by the Supreme Court produces an immediate impact on the balance of forces in the Parliament and on the courses of national political life. The opening of investigations, the receipt of criminal complaints, the ordering of precautionary measures – such as arrest or removal from office, and the convictions, all increased the Court’s visibility, favored a more proactive and effective role in the fight against corruption, but also increased the risks of undue politicization, selectivity, and excessive intervention in the political game. The ineluctable fact is that in a scenario of crisis and loss of legitimacy of the elected representatives, the country’s fate has never been so connected to the outcome of criminal proceedings and, therefore, to the performance of the Supreme Court in these cases.

Supreme Court’s Performance: Emblematic Rulings It is impossible to understand the real dimension of the Supreme Court’s (STF) performance without analyzing, even if briefly, the most influential decisions in the Court’s recent history. The selected cases were organized into two groups according to their main subject – the affirmation and implementation of fundamental rights, on the one hand, and the efforts related to the current context of political crisis, on the other.

Brazilian Supreme Court and Fundamental Rights On March 29, 2008, the STF ruled for the constitutionality of the law that authorized embryonic stem cell research.3 This was one of the first cases involving the confrontation of the secular and religious views of life. The 3

ADI 3,510, Rapporteur Justice Carlos Ayres Britto.

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STF’s plenary, by 6 votes to 5, decided for the constitutionality of the Biosafety Act’s provision that authorized and regulated scientific researches with human embryos resulting from the procedures of in vitro fertilization if they were unfeasible or frozen for more than three years. The Court held that the destruction of embryos in this case – embryos that would, in any event, be discarded at some point – neither violated the right to life nor the principle of human dignity. Just more than a year later, on April 30, 2009, the Court declared the military regime’s Press Act incompatible with the 1988 Constitution.4 In this case, the plenary, by majority, ruled that Law 5,250 of 1967, enacted to “regulate freedom of expression and information” during the military dictatorship, was entirely incompatible with the values and principles of the 1988 Constitution. According to this understanding, the act’s authoritarian essence could not coexist with the standards of freedom of expression and freedom of the press required in a democratic regime. Furthermore, in a trial concluded on May 5, 2011, the STF helped defeat centuries of prejudice and ensured same-sex unions the same rights guaranteed to heterosexual couples living in a stable union.5 According to the Court’s ruling, the exclusion of couples based on sexual orientation was incompatible with the right to the pursuit of happiness, the principle of equality, the prohibition of prejudice, the general clause of freedom – from which the protection of private autonomy derives, and the very dignity of the human person, which prevents the state from denying individual self-determination and imposing a sole vision of what a good life is. Shortly thereafter, on May 14, 2013, the National Council of Justice, in an unfolding of that decision, ensured the right to same-sex marriage. On April 26, 2012, the plenary of the Supreme Court concluded the trial by which it upheld the constitutionality of the system of ethnic-racial quotas for public university admission.6 The Court found that the affirmative action policy favoring historically discriminated social groups does not violate – in fact, honors – the principle of equality. In another recent ruling, issued on June 8, the STF unanimously upheld the constitutionality of a law setting forth a system of racial quotas for all federal civil service careers, including diplomats, judges, and prosecutors. According to the law, 20 percent of the public-sector positions – which 4 5 6

ADPF 130, Rapporteur Justice Carlos Ayres Britto. ADPF 132 and ADI 4277, Rapporteur Justice Carlos Ayres Britto. ADPF 186, Rapporteur Justice Ricardo Lewandowski.

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in Brazil are filled through public examinations – shall be reserved for black candidates.7 The Court found that the affirmative action policy favoring historically discriminated social groups does not violate – but rather, honors – the principle of equality, and emphasized the need to dismantle structural racism in Brazilian society by creating a “representative bureaucracy.” On August 13, 2015, the STF unanimously ruled that the judiciary may order the public administration to perform emergency repairs in prisons, so as to ensure dignity and respect for the physical and moral integrity of prisoners.8 In sequence, the Court concluded the judgment of a preliminary injunction, through which it recognized the Brazilian prison system as an “unconstitutional state of affairs” and ordered the adoption of provisional measures to remedy the serious violations to basic rights of detainees.9 On November 29, 2016, by a majority, the First Panel of the STF ruled that criminalization of the interruption of pregnancy during the first trimester was incompatible with the Constitution.10 The criminalization of abortion in this situation violates women’s fundamental rights, including sexual and reproductive rights, autonomy, physical and mental integrity, and equality. The First Panel also affirmed that such criminalization has a disparate impact on poor women, who are prevented from resorting to the public health system. Finally, it was emphasized that practically no democratic and developed country in the world criminalizes the interruption of pregnancy in the first three months. In addition to these decisions, there are other cases related to the protection of fundamental rights that have been initiated, but not yet concluded, in the STF, such as (1) the unconstitutionality of the criminalization of drug possession for personal consumption;11 (2) the right of transgender people to be treated socially according to their gender identity, including in the use of public toilets;12 and (3) the unconstitutionality of the confessional approach to religious education in public schools.13 7 8 9 10 11 12 13

ADC 41, Rapporteur Justice Luís Roberto Barroso. RE 592,581, Rapporteur Justice Ricardo Lewandowski. ADPF 347 MC, Rapporteur Justice Marco Aurélio. HC 124,306, Rapporteur Justice Luís Roberto Barroso. ADI 4,815, Rapporteur Justice Gilmar Mendes. RE 845.779, Rapporteur Justice Luís Roberto Barroso ADI 4,439, Rapporteur Justice Luís Roberto Barroso. Although the decision had not been published as of October 2017, this trial was concluded on September 27, 2017. By 6 votes to 5, the Court admitted the specific faith-based religious education in public schools,

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The Brazilian Supreme Court, Political Crisis, and Criminal Law The Supreme Court began to examine issues more directly related to the political crisis and corruption in the trial of the so-called Mensalão scandal, which began on August 2, 2012, and was concluded on March 13, 2014, after nearly 70 plenary sessions.14 In this case, the Court found evidence of a scheme for the purchase of votes in Congress, with resources derived from diversion of public funds and fraudulent loans. Twenty defendants were sentenced to prison for crimes of active and passive corruption, embezzlement, money laundering, and fraudulent financial institution management. The sentencing of two dozen entrepreneurs and politicians broke with the paradigm of impunity that had always reigned in Brazil concerning white-collar crimes, primarily when associated with the political realm. Subsequently, in a judgment concluded on September 17, 2015, the STF plenary declared that the rules regulating campaign financing by companies was unconstitutional.15 It was not entirely clear whether the majority of the Court considered electoral donations provided for by companies as illegitimate in any case or only in that existing model, which allowed companies to inject millions of Brazilian Reais into campaigns and adopt morally unacceptable conduct. Such conduct included, for example, the possibility of (1) borrowing loans from public development banks and using the money to fund candidates; (2) donating to all candidates with a chance of victory, revealing that the company was either buying future favors or being extorted; and (3) the donor company being hired by the government after elections, allowing that the private favor be paid for with public money. The outcomes of the Car Wash operation confirmed, unequivocally, that much of the corruption in the country was associated with electoral financing by companies contracting with the public administration. Months later, on November 25, the STF determined, for the first time under the 1988 Constitution, the arrest of a senator in office.16 The request for arrest indicated that the senator was acting to defraud an

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against the opinion of the Justice Rapporteur and coauthor of this essay. The Catholic Church in Brazil still constitutes a “real factor of power,” in the sense used by Ferdinand Lassalle in On the Essence of Constitutions (São Paulo: Kairós, 1985) (1st German ed., 1863). AP 470, Rapporteur Justice Joaquim Barbosa. ADI 4,650, Rapporteur Justice Luiz Fux. AC 4,039, Rapporteur Justice Teori Zavascki.

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ongoing investigation under the Car Wash operation and to infringe upon the jurisdiction of the Supreme Court by, among other things, promising to influence the justices of the Court. The broad political crisis and the articulation by members of the parliament involved in the Car Wash operation also influenced the initiation of President Dilma Rousseff’s impeachment proceedings. Several doubts concerning the legitimacy of the procedure, initiated by the then-president of the Chamber of Deputies Eduardo Cunha, called for the intervention of the STF. In a session held on December 18, 2015, the plenary invalidated acts practiced in the Chamber of Deputies during the impeachment procedure, determining that the same procedure established by the STF, and approved by the Senate in 1992 during President Collor’s impeachment, be followed.17 The majority considered that the removal of a president for committing a crime of malversation was an extremely serious procedure that should have predefined rules, not an erratic conduction, according to the conveniences and immediate objectives of the president of the Chamber of Deputies. On May 5, 2016, the STF’s plenary upheld, by a unanimous decision, the preliminary injunction granted by the Rapporteur Justice, which suspended Congressman Eduardo Cunha from his parliamentary mandate and from being the Speaker of the Chamber of Deputies.18 The congressman, who came to face charges of passive corruption before the Supreme Court, was removed from office under the accusation that he abused his office and mandate, using them to hinder the proceedings, as well as to threaten and intimidate people who interfered with his interests. The seriousness of the accusations and the strong evidence that they were not only true but attributable to the congressman, justified the intervention of the judiciary in another branch of the government. In three trials concluded throughout the year 2016 – on February 17, October 5, and November 11 – the majority of the plenary ruled that the Constitution allows for the arrest of a defendant after conviction by a court of appeals (i.e., by a State Appellate Court or a Federal Appellate Court), even though the decision is not yet final and still appealable (i.e., while still pending Special and Extraordinary appeals).19 The Court held 17 18 19

ADPF 378, Rapporteur Justice Luís Roberto Barroso. AC 4,070, Rapporteur Justice Teori Zavascki. HC 126,292, Rapporteur Justice Teori Zavascki; ADCs 43 e 44 – Preliminary Injunction, Rapporteur Justice Marco Aurélio; ARE 964,246 – General Repercussion, Rapporteur Justice Teori Zavascki.

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that after conviction by a court of second instance, the weight of the principle of presumption of innocence or non-culpability is overcome by the necessity for effectiveness of criminal prosecution, which protects valuable legal assets for the constitutional order, such as life, property, the physical integrity of individuals, and administrative probity. The prevailing understanding also highlighted that, in higher courts, as a rule, there is no discussion of whether the crime occurred and who committed it, given the impossibility of reanalyzing facts and evidences during that stage of the trial. The new understanding has affected the interests of influential people and politicians, many accused of corruption and other white-collar crimes. As seen from this selection of emblematic decisions, over the last few years, the Supreme Court has decided highly relevant and controversial questions from the moral, social, and political point of view, ranging from the juridical recognition of same-sex unions to the unconstitutionality of the criminalization of abortion; from the prohibition of corporate financing of campaigns to the rules and procedures of impeachment of the president of the Republic. More than that, it is noticeable that the Court, sometimes voluntarily, sometimes due to unavoidable circumstances, has become a protagonist both in the task of guaranteeing fundamental rights, especially of minorities, and in the arbitration of the disputes and tensions arising from the political crisis and from investigations of corruption in the upper echelons of power.

The Roles of Constitutional Courts in Brazil and in the World The institutional mission of the supreme courts and constitutional courts is to assert the Constitution in face of threats presented by other branches of government or even by individuals. Routinely, the most recurrent situation happens when a specific law, that is, an act of the legislature, is questioned in light of the constitutional text. In most cases, when exercising the power of judicial review, constitutional courts uphold the contested legislation, dismissing the request as unfounded. This is due to the primacy that the Constitution attributed to the legislative branch for political decision-making and to the deference that courts owe to the acts of other branches of government in the name of separation of powers. Nonetheless, cases in which legislation or acts of government are found unconstitutional are usually the ones that receive the most attention and emphasis. The supreme courts and constitutional courts, when they accept the unconstitutionality claim and interfere with acts practiced by

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the legislative branch, perform three roles: the counter-majoritarian role, the representative role, and the role I call “enlightened.”

The Counter-Majoritarian Role In most democratic countries, supreme courts and constitutional courts have the power to control the constitutionality of legislative and executive acts and may invalidate norms approved by Congress or Parliament. This means that superior court justices, who have not been popularly elected, can override the constitutional interpretation of the political agents endowed with a representative mandate and democratic legitimacy with their own. Constitutional theory has given this factor, which generates an apparent incongruity within a democratic state, the name of “countermajoritarian difficulty.”20 Despite minoritarian theoretical resistances,21 this countermajoritarian role of judicial review has become almost universally accepted. The democratic legitimacy of the constitutional jurisdiction has been affirmed on two main tenets: (1) protection of fundamental rights, which corresponds to the ethical minimum and a political community’s reserve of judgment22 that cannot be overrun by majoritarian political deliberation; and (2) protection of the basic rules of the democratic game and the channels of political participation for all.23 Most countries in the world give the judiciary, and more particularly its supreme court or constitutional court, the status of sentinel against the risk of tyranny of the majorities.24 That prevents the distortion of the democratic process or the oppression of minorities. Among the cases 20

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The expression became a classic from the work of A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics, 2nd ed. (New Haven, CT, and London: Yale University Press, 1986), pp. 16ff. The first edition of the book is from 1962. See J. Waldron, “The Core of the Case against Judicial Review,” The Yale Law Journal 115 (2006), 1346–1406; M. Tushnet, Taking the Constitution Away from the Courts (Princeton, NJ: Princeton University Press, 2000); and L. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford: Oxford University Press, 2004). The equation between human rights and minimum reserve of justice is made by Robert Alexy in several of his works. See, e.g., Jóse Antonio Seoane (ed.), La Institucionalización de la Justicia, trans. José Antonio Seoane, Eduardo Roberto Sodero, and Pablo Rodríguez. (Granada: Editorial Comares, 2005), p. 76. On the procedural view of judicial review, see J. H. Ely, Democracy and Distrust: A Theory of Judicial Review. Rev. ed. (Cambridge, MA: Harvard University Press, 1980). The expression was used by J. S. Mill, On Liberty, 5th ed. (London, 1874), p. 13: “The tyranny of the majority is now generally included among the evils against which society requires to be on its guard.”

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listed in the preceding text, the decisions that were counter-majoritarian, in the conventional sense, were the ones where the STF determined the incompatibility between the Press Act and the 1988 Constitution, as well as the unconstitutionality of the law that allowed companies to donate to electoral campaigns.

The Representative Role The doctrine of the counter-majoritarian difficulty, previously studied, is based on the premise that the decisions of elected bodies, such as Congress, would always be an expression of the majority’s will while, conversely, decisions rendered by a supreme court, whose members are not elected, would never be. Any empirical study would discredit these two propositions. For numerous reasons, the legislative branch does not always express the will of the majority.25 In fact, for many decades throughout the democratic world, there is recurring discourse on the crisis of parliaments and the difficulties of political representation. From Scandinavia to the Americas, a mixture of skepticism, indifference, and dissatisfaction marks the relationship of civil society and the political class. There are problems associated with (1) failures of the electoral and party system, (2) party minorities that act as veto players,26 obstructing the prevalence of the will of the parliamentary majority, and (3) occasional trapping by special interests. The point here emphasized is that, in certain contexts, paradoxical as it may seem, courts are more representative of social aspirations and demands than traditional political bodies. Several reasons contribute to this: the manner in which judges are appointed, with emphasis on their technical qualification; lifetime tenure, so judges are not subject to the short-term volatilities of electoral politics; and, especially, the requirement for reasoning of judicial decisions, which compels judges to present the grounds and arguments for their convictions.

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On the subject, see C. B. Lain, “Upside-down Judicial Review,” The Georgetown Law Review 101 (2012), 113. See also Michael J. Klarman, “The Majoritarian Judicial Review: The Entrenchment Problem,” The Georgetown Law Journal 85 (1996–1997), 49. Veto players are individual or collective actors with the ability to stop the game or prevent the advance of an agenda. For an in-depth study of the topic, see George Tsebelis, Veto Players: How Political Institutions Work (Princeton, NJ: Princeton University Press, 2002). In Portuguese, see P. Abramovay, Separação de Poderes e Medidas Provisórias (Rio de Janeiro: Elsevier, 2012), p. 44.

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Contemporary democracy is made up of votes, rights, and reasons, which give it three dimensions: representative, constitutional, and deliberative. Representative democracy has as its essential element the popular vote. Constitutional democracy has as its core component the respect for fundamental rights, which must be guaranteed even against the occasional will of political majorities. Finally, deliberative democracy27 is based on a discursive legitimacy: Political decisions shall be produced after free, wide, and open public debate, at the end of which the reasons for the choices made are explained. An important insight in this field is provided by the German legal philosopher Robert Alexy, who refers to a constitutional court as an argumentative representative of society.28 According to his view, the only way to reconcile constitutional jurisdiction with democracy is to conceive of it, too, as popular representation. The fact is that constitutional courts in general, and the Supreme Court in particular, also play, in a variety of situations, a representative role of the majoritarian will of society, especially in situations in which there is a conflict of interests between legislative representatives and the population or where the channels of democratic participation are not well-functioning. Thus, if we accept the hypothesis that representative bodies may not reflect the majoritarian demands, in fact, the judicial decision that strikes an act of the Congress might not necessarily be counter-majoritarian. What it will invariably be is counter-legislative, counter-congressional, or counter-parliamentary. In Brazil, the Supreme Court rendered a series of decisions supported by the majority of the population, who did not have their demands answered by majoritarian politics. This was the case of the STF’s decision that upheld as constitutional the prohibition of nepotism, or hiring of wives, husbands, common-law marriage partners, or relatives for the exercise of positions of trust and public office in the judiciary;29 a ban that was later extended, through case law, to the executive and legislative

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The idea of deliberative democracy has as precursor authors, among others, John Rawls, with his emphasis on reason, and Jürgen Habermas, with his emphasis on human communication. On deliberative democracy, see, in English, A. Gutmann and D. Thompson, Why Deliberative Democracy? (Princeton, NJ: Princeton University Press, 2004); in Portuguese, C. P. Souza Neto, Teoria Constitucional e Democracia Deliberativa (Rio de Janeiro: Renovar, 2006). See R. Alexy, “Balancing, Constitutional Review, and Representation,” International Journal of Constitutional Law 3 (2005), 578–581. Supreme Court of Brazil, Plenary, ADC 12, Rapporteur Justice Ayres Britto, Official Gazette, December 18, 2009.

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branches of government.30 Similarly, the Court declared unconstitutional the financing of electoral campaigns by private corporations because it considered that, as it was structured, such funding distorted the representative system and reinforced the influence of economic power on election results.31 In another important case, the Court affirmed the possibility of a defendant’s detention after a conviction is upheld by the court of appeals, even when ordinary and extraordinary appeals to higher courts are still available.32 All three decisions received broad popular support, but were not promoted under the majority politics, for being in tension with the interests of the representatives. The representative role of courts can also be identified in other constitutional orders. An example of representative action carried out by the US Supreme Court was the decision in Griswold v. Connecticut,33 issued in 1965, which held unconstitutional a Connecticut law that prohibited the use of contraceptives, even by married couples. In recognizing a right to privacy that was not expressly stated in the Constitution, but could be drawn from the “emanations” of other constitutional rights, the Court seems to have made a decision that expressed the majority sentiment of the time. Hence, while traditional terminology labels this decision as counter-majoritarian – to the extent that it invalidated a state law (the Connecticut Comstock Act of 1879), it was, most certainly, counterlegislative, but probably not counter-majoritarian. Although there is no sufficiently reliable data or opinion polls from this period, it is possible to infer that the law did not express the majority sentiment in the mid1960s34 – the era of the sexual revolution and feminist movement. 30

31

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33 34

Supreme Court of Brazil, Binding Precedent n. 13: “The nomination of wives, husbands, common law marriage partners or relatives in a straight or collateral line, or by affinity, up to and including the third degree, of the nominating authority or of a civil servant of the same legal entity invested in a position of direction, management or advisory, for the exercise of a trusted position or even a gratified function in the direct or indirect public administration in any of the Power branches of the Union, of the States, of the Federal District or of the Municipalities, including the adjustment by means of reciprocal designations, violates the Federal Constitution” (free translation). Supreme Court of Brazil, Plenary, ADI 4650, Rapporteur Justice Luiz Fux, Plenary, Official Gazette, February 24, 2016. Supreme Court of Brazil, Plenary, HC 126,292, Rapporteur Justice Teori Zavascki, ruled on February 17, 2016; ADCs 43 and 44 – Preliminary Injunction, Rapporteur Justice Marco Aurélio, ruled on October 5, 2016. 381 U.S. 479 (1965). See J. Lepore, “To Have and to Hold: Reproduction, Marriage, and the Constitution,”The New Yorker Magazine 25 (2015), 34–39 [35]: “Banning contraception at a time when the overwhelming majority of Americans used it was, of course, ridiculous.”

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In Canada, the Supreme Court recognized, in 1988, the fundamental right to abortion, invalidating a provision of the Criminal Code that criminalized the procedure.35 Its representative characteristic is evidenced by opinion polls, which demonstrated that as early as 1982 (i.e., six years before the decision), more than 75 percent of the Canadian population considered abortion a matter of women’s personal choice.36

The Enlightened Role Lastly, constitutional courts occasionally play an enlightened role. Courts promote, in the name of rational values, certain essential advances, which do not correspond to the will of Congress or the demands of the majority of the population. Even so, they are necessary for the protection of fundamental rights, for overcoming discrimination and prejudices, and to ensure that each person can live according to his or her own conception of good life, so long as it does not harm others. It is, therefore, a progressive role, of anticipating achievements and ideas “whose time is yet to come” but that are correct, fair, and legitimate, such as the guarantee of equal rights for women, black people, homosexuals, transgender individuals, and religious minorities. It is worth giving a brief justification for the use of the term enlightened in the context here described. Enlightenment designates a comprehensive philosophical movement that revolutionized the world of ideas throughout the eighteenth century.37 The Lumières, in France; the Enlightenment, in England; the Illuminismo in Italy; or Aufklärung, in Germany were the culmination of a historical cycle that began with the Renaissance in the fourteenth century, and whose milestones included the Protestant Reformation, the formation of the national states, the arrival of the 35

36

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Supreme Court of Canada, Morgentaler, Smoling and Scott v. The Queen (1988) 1 S.C.R. 30, https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1053/index.do (accessed February 21, 2018). www.nytimes.com/1982/12/13/world/canadian-doctor-campaigns-for-national-abor tion-clinics.html (accessed February 21, 2018). Besides the Encyclopédie, with its 35 volumes, coordinated by Diderot and D’Alambert and published between 1751 and 1772, some remarkable authors and works of the Enlightenment: Montesquieu, The Spirit of the Laws (1748), Jean-Jacques Rousseau, Discourse on Inequality (1754) and The Social Contract (1762); Voltaire, Philosophical Dictionary (1764); Immanuel Kant, What Is Enlightenment? (1784); John Locke, Two Treatises of Government (1689); David Hume, Treatise of Human Nature (1739); Adam Smith, The Wealth of Nations (1776); and Cesare Beccaria, On Crimes and Punishment (1764), among others.

     

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Europeans to America, and the scientific revolution. Reason was drawn to the center of the system of thought, dissociating itself from the faith and dogmas of Christian theology. Historically, the Enlightenment is an idea associated with humanist reason, the inalienable rights of the human condition, tolerance, scientific knowledge, the separation between church and state, and the advance of history toward the intellectual, social, and moral emancipation of people. It is in this sense that the term is employed here: a humanist reason that drives the civilizing process and pushes history toward social progress and the liberation of women and men. To dispel any malice toward an authoritarian or aristocratic view of life, enlightenment, in the present context, bears no resemblance to a position analogous to enlightened despotism or the philosopher kings of Plato.38 The closest analogy would perhaps be to a philosophical tradition that comes from Thomas Aquinas, Hegel, and Kant, according to which history is a continuous flow toward the good and the improvement of the human condition.39 The enlightened reason here propagated is one of pluralism and tolerance, imposed only to defeat superstitions and prejudices, so as to ensure human dignity and a good life for all. There were times, in the process of social evolution, when slavery was considered natural, women were property of husbands, black people were not citizens, Jews were heretics, people with disability were sacrificed, and homosexuals were killed. Nonetheless, the history of humanity is the history of the overcoming of prejudices, obscurantism, and superstitions, all primitive visions that exclude the other, the foreigner, and the different. Occasionally, lights must be lit in the darkness, subordinating will to reason. In these rare but decisive moments, constitutional courts may need to be the change agents of history. It is neither an easy task nor one necessarily met with success, and so it must be exercised with great parsimony because of the democratic risk it presents and to prevent constitutional courts from becoming hegemonic instances.

38

39

See Plato, VI The Republic (the original edition is from 380 BC). In the ideal and fair society, whose delimitation he sought to outline in that work, Plato defended the idea that the government should be conducted by philosophers-kings, chosen in terms of knowledge and virtue. In the commentary of F. Copleston, A History of Philosophy, 1st ed. (New York: Doubleday, 1993), I: p. 230 (“The democratic principle of government is, according to Plato, absurd: the ruler must govern in virtue of knowledge, and that knowledge must be knowledge of the truth”). About this issue, see the notable article of Paulo Barrozo, “The Great Alliance: History, Reason, and Will in Modern Law,” Law and Contemporary Problems 78 (2015), 257–258.

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This role has been successfully performed in paradigmatic cases decided by courts throughout the world. In Brazil, the STF has rendered several decisions that may be considered enlightened in the sense explained previously. As mentioned, the Court, for example, recognized same-sex unions as a family entity, hence extending to them the law applicable to heterosexual stable unions; and the Court found the criminalization of abortion before the third month of pregnancy unconstitutional, based on women’s sexual and reproductive rights and their right to autonomy, physical and mental integrity, and equality.40 In these cases, evidences indicate that the Court ruled in disagreement with the markedly conservative, dominant view of both the population and the legislative branch.41 In the United States, Brown v. Board of Education,42 decided by the Supreme Court in 1954, is the paradigmatic example of an enlightened decision because of its open confrontation of the racism then entrenched in Congress and society. In a unanimous decision articulated by the new chief justice, Earl Warren, appointed by Eisenhower, the Court held that “separate educational facilities are inherently unequal,” in violation of the Fourteenth Amendment of the US Constitution, which guarantees equality before the law. The decision emphasized the importance of education in modern societies and stated that segregation engendered in African American children “a feeling of inferiority as to their status in the community.” The enlightened aspect of the decision manifested in the overcoming of common sense – which hid racial prejudice behind the doctrine of “separate but equal”43 – and in the resulting paradigm shift in racial matters. In this way, Brown functioned as a catalyst for the modern civil rights movement.44 Another example in the North 40

41

42 43 44

Supreme Court of Brazil, First Panel, HC 124,306, Rapporteur for decision Justice Luís Roberto Barroso, ruled on November 29, 2016. Regarding same-sex unions, an IBOPE (Brazilian Institute of Public Opinion and Statistics) survey indicated that 55 percent of the population were against their recognition (IBOPE, “55% of the population is against gay civil union,” Revista Época, July 28, 2011). The declaration of unconstitutionality of the criminalization of abortion motivated protests of members of the congress and provoked the establishment of a commission within the Chamber of Deputies to seek the repeal of that Supreme Court’s decision; http://brasil.elpais.com/brasil/2016/11/30/policies/1480517402_133088.html (accessed March 27, 2017). 347 U.S. 483 (1954). Plessy v. Ferguson, 163 US 537 (1896). Brown v. Board of Education, Leadership Conference on Civil and Human Rights: “The Brown case served as a catalyst for the modern civil rights movement, inspiring education

     

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American scenario would be Roe v. Wade,45 decided in 1973, where the Supreme Court affirmed the right of a woman to obtain an abortion during the first trimester of pregnancy. In South Africa in 1995, in its first major decision, still under the interim constitution that governed the country’s transition, the newly established Supreme Court, abolished the death penalty, bringing decades of execution of criminals convicted of felonies, mostly black citizens, to an end.46 Surprisingly, the decision was unpopular with a major part of the population, and even today, parties and organized groups, formed by whites and blacks, advocate for the return of capital punishment.

Conclusion This chapter sought to analyze the activities of the Brazilian Supreme Court and the roles of constitutional jurisdictions in Brazil and all over the world. In conclusion, we would like to highlight three specific points developed throughout the text. The first one is that judicialization and judicial activism are not the same thing. Judicialization is the process whereby some of the major political, moral, and social issues of our time unfold some of their most decisive chapters before the courts. Judicial activism, however, is an attitude that seeks to expand the role of the judiciary, leading it to occupy institutional territory traditionally perceived as belonging to the legislative branch. In spite of the negative connotation that the term has taken over time, this more expansive intervention of the courts is not necessarily bad. On the contrary, some of the most crucial moments of world constitutionalism have resulted from a more activist stance of the constitutional courts. The second point is that the degree of judicialization is determined not only by institutional design but also by circumstances, such as political crises. In Brazil, three singularities of the adopted model of constitutional jurisdiction have fostered the judicialization of life in the country: (1) the comprehensive constitutionalization; (2) the hybrid system of judicial review, which facilitates access to the Supreme Court through direct claims, over which the Court often has to render decisions during the

45 46

reform everywhere and forming the legal means of challenging segregation in all areas of society.” www.civilrights.org/education/brown/ (accessed January 17, 2017). 410 U.S. 113 (1973). S v. Makwanyane and Another (CCT3/94) (1995).

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heat of events; and (3) the original criminal jurisdiction of the STF to hold proceedings against high authorities for committing common crimes. In recent years, these elements, coupled with the loss of legitimacy of elected powers and the anti-corruption operations, have favored the expansive activity of the Supreme Court. The third point is that contemporary democracies are made up of votes, rights, and reasons. Judges and courts generally do not depend on votes; they operate in the protection of rights and the offering of reasons. In this milieu, supreme courts and constitutional courts play three major roles: counter-majoritarian, when they invalidate acts of the elected branches; representative, when they respond to social demands not met through the political process; and enlightened, when they promote social advancement regardless of circumstantial political majorities. The latter competence, as intuitive, must be exercised in exceptional moments and with great caution, considering the authoritarian risk involved. Nevertheless, it has been effectively exercised with great prominence and relevance by the Brazilian Supreme Court and by other courts around the world, ensuring the protection of black people, women, homosexuals, and minorities in general.

8 Judicial Power and European Integration The Case of Germany

     .     

Introduction On Tuesday, September 12, 2012, the German Constitutional Court could have brought the world economy down. That day, the Court published the decision on Germany’s participation in the latest rescue efforts for troubled states within the Euro system, the European Stability Mechanism (ESM).1 With hundreds of media representatives from all over the world observing a case that had been initiated by more than 40,000 plaintiffs, its scope was unprecedented in the history of the German Constitutional Court.2 Had the Court decided that for reasons of German constitutional law, Germany was not allowed to participate in the ESM, the repercussions on the financial markets worldwide would have been dramatic. Two years later, on June 21, 2016, the day of the German Constitutional Court’s OMT (Outright Monetary Transactions) decision, all eyes were on Karlsruhe again. Once more, the stakes were

I wish to thank Theresa Krampe, Imke Decker, and Marina Ermes for their invaluable research assistance. This chapter builds on my earlier work, “Defiance by a Constitutional Court – Germany” (2017), Kompetenzüberschreitung und Letztentscheidung (2000), “Multilevel Constitutional Jurisdiction” (2010), and “Rebels without a Cause?” (2014). 1 Bundesverfassungsgericht (BVerfG – Federal Constitutional Court), BVerfGE 132, 195 (September 12, 2012). Other recent cases related to the Euro crisis are BVerfGE 129, 124 (September 7, 2011) (Greece and EFSF); BVerfGE 130, 318 (February 28, 2012) (“Committee of Nine”); BVerfGE 131, 152 (June 19, 2012); BVerfGE 134, 366 (January 14, 2014) (OMT preliminary reference); BVerfGE 142, 123 (June 21, 2016) (OMT); BVerfG, 2 BvR 859/15 et al., ECLI:DE:BVerfG:2017: rs20170718.2bvr085915 (July 18, 2017) (Public Sector Purchase Programme [PSPP] preliminary reference). Older cases related to the Euro are BVerfGE 89, 155 (October 12, 1993) (Maastricht decision); BVerfGE 97, 350 (March 31, 1998) (Euro); BVerfGE 123, 267 (June 30, 2009) (Lisbon decision). 2 Meanwhile, the CETA case, BVerfGE 143, 64 (October 13, 2016), has been introduced with the support of more than 100,000 plaintiffs.

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high. Had the Court decided that the European Central Bank (ECB) had transgressed its competences in its decision on the OMT program, this would have posed a serious threat to the effectiveness of the monetary policies for the Eurozone. The limitations such a decision would have placed on the ECB’s leeway regarding its monetary policies would have provoked far-reaching consequences. In particular, this could have significantly destabilized the common European currency, the Euro, in a time when the ECB is widely regarded as the staunchest defender of stability within the Eurozone. Although exceptional cases in many respects, the Euro cases are far from being merely anecdotic. Especially when considering the Court’s long history of involvement in the European Union’s political arena, the Euro cases are paradigmatic for a development in European politics where the German Constitutional Court is perceived as having emerged as a major political player. As such, the Court is seen to influence through its decisions not only the domestic, national arena but also the European arena and probably even arenas beyond that. The paradox is that the role as a political player notwithstanding, the Court remains on a strictly formal perspective a legal player as it argues exclusively in legal terms in highly formalized court decisions.3 The effect is an increasing weight of legal arguments in the political realm. The idea of taking the particular law-driven culture of post-1945 Germany to the European Union level is not that new, though. Germany’s perspective on European integration during the foundational years of the 1950s was a perspective of establishing a community of law (Rechtsgemeinschaft): Recht vor Macht, as Walter Hallstein famously put it.4 Still, the particular role of the German Constitutional Court in the European context appears to be a more recent development. This chapter takes a closer look at this development. Why is the German Constitutional Court being perceived as a political player in European Union politics, and what is and should be its role in contemporary European politics? To understand the role of the Constitutional 3

4

There is at least one example of a press release issued by the Court that goes beyond the formal decision it is about, the press release that reacts to the ECJ’s Akerberg Fransson decision, BVerfGE 133, 277 (April 24, 2013). “Law trumps power,” see W. Hallstein, Der unvollendete Bundesstaat (Düsseldorf and Wien: Econ-Verlag, 1969), p. 33; see the 1969 Padua speech by W. Hallstein, “Die EWG – Eine Rechtsgemeinschaft,” in Th. Oppermann (ed.), Walter Hallstein: Europäische Reden (Stuttgart: Deutsche Verlags-Anstalt, 1979), p. 343. For a recent assessment of the concept, see F. C. Mayer, “Die Europäische Union als Rechtsgemeinschaft,” Neue Juristische Wochenschrift 50 (2017), 3631–3638.

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Court in today’s European Union, it is useful to retrace the historical context of its establishment in Germany (first part). It is also necessary to take a closer look at the framework of Germany’s participation in European integration set by the text of the German constitution (second part). The case law of the German Constitutional Court on European affairs is its primary means of communication and adds elements of interpretation to the initial constitutional layout (third part). Finally, the most recent developments in the context of the Euro crisis illustrate where the Court stands today and where it might go from here (fourth part).

History: The Long Way to Judicial Review in Germany Who Is the Guardian of the Constitution? A constitutional court with the power to review legislation is quite a recent phenomenon in Germany. A federal supreme court or federal constitutional court existed neither under the 1871 Bismarck Constitution nor under the 1919 Weimar constitution of the first Republic. To some limited extent, the Staatsgerichtshof für das Deutsche Reich, a constitutional court under the Weimar Constitution,5 can be considered to have been the predecessor to the Federal Constitutional Court. However, the jurisdiction of the Staatsgerichtshof was limited to disputes on the delimitation of powers between the center (the Reich) and the states of the periphery (the Länder). This limited jurisdiction did not mean that there was no debate on the role of courts in constitutional life. One of the most prominent constitutional theory debates of the Weimar Republic concerned the opposing ideas of Carl Schmitt, later to become one of the most prominent Nazi constitutionalists – for some time – and Hans Kelsen, later to become an emigrant, settling in the United States to pursue a second career as internationalist. The Schmitt-Kelsen debate6 revolved around the question regarding who was to be the guardian of the constitution, in German: Hüter der Verfassung. Schmitt argued in favor of the directly elected Reichspräsident. Kelsen brilliantly deconstructed Schmitt’s arguments, drawing on his own experience of designing a constitutional court for the 1920 Austrian constitution. In Weimar, Kelsen’s view – considering a 5 6

Art. 108 of the Weimar constitution. C. Schmitt, Der Hüter der Verfassung (Tübingen: Mohr, 1931); H. Kelsen, “Wer soll Hüter der Verfassung sein?,” Die Justiz 6 (1931), 5.

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constitutional court to be the best guardian – remained a minority opinion, though. Probably the major part of the elites still missed the empire, the Kaiserreich, and in a way the Reichspräsident was more plausible as a substitute than a court. What happened next is well known: The last president of the Weimar Republic, former World War I general Paul von Hindenburg, failed spectacularly in his role as guardian when he handed the Constitution over to the enemies of the Republic. His appointment of Adolf Hitler as chancellor was the beginning of the ensuing dismantling of Germany’s constitutional order. Against this background, it is no surprise that postwar West Germany would turn to Kelsen’s solution: The 1949 Grundgesetz introduced a powerful Federal Constitutional Court. The jurisdiction of the Court includes judicial review of federal and state legislation. The countermajoritarian difficulty that comes with judicial review exercised by a constitutional or a supreme court is or was an issue in many constitutional orders. Just take the United States as an example: It has been an ongoing point of debate in the United States since Federalist No. 78, where the democratic anomaly is justified as “the least dangerous branch.” Nevertheless, constitutional courts modeled on Hans Kelsen’s ideas have been introduced in many constitutional systems, quite often after overcoming dictatorship. Examples of countries that have a tradition of finding it problematic that few individuals can neutralize the will of the democratically elected parliament are France and the United Kingdom. Scandinavian legal orders also have a different tradition. In Germany, by contrast, the democratic deficit of the Constitutional Court was not a major issue. Quite the contrary, the Court even became the most popular institution of all. Opinion polls show on a regular basis that the German Constitutional Court is way ahead of other institutions in terms of popularity, including Parliament. Additionally, the polls indicate that citizens trust the Court more than “politics.”7

Law Trumps Politics In post-1945 Germany, to a certain extent, law trumps politics. Obviously, most democratic societies will have a modus operandi where at some point political conflict will generate political compromise, which typically takes the form of law. In Germany, arguably more frequently 7

See, e.g., the Allensbach opinion poll 2012, Frankfurter Allgemeine Zeitung, August 21, 2012.

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than elsewhere, political conflict will be given the form of legal conflict. Political arguments will be replaced by legal arguments and an issue will be shifted from the political arena in Berlin to the constitutional law arena in Karlsruhe. Then, the Constitutional Court will decide the issue. This is best explained as a reaction to the recent past: The failure to keep political excess under the control of law in the Weimar Republic and the destruction of the Rechtsstaat and a substantive rule of law under the Nazi dictatorship. The perpetuation of a peculiar relationship between law and politics in Germany over many years is partly due to the existence of a powerful constitutional court. In turn, it is also plausible that the importance attributed to law over time has enabled the Constitutional Court to acquire its status in the first place. What is hard to contest is that in the context of domestic politics, the German Constitutional Court has indeed become a political player. In a way, finding that a constitutional court has political relevance is not that surprising. What is peculiar to Germany, though, is how vigorously the dichotomy between law and politics is upheld. If challenged, the Constitutional Court will insist that its decisions are based strictly on the application of law and on legal methods. This approach helps to mask the most obvious glitch in the law-only narrative: The judges are nominated by the major political parties and it is common knowledge who was nominated by which party. Still, the political role of the German Constitutional Court is not necessarily defined by party politics. At least this seems to be the self-perception of most judges.8 The perception of the general public is probably best described as a view according to which the Court is the supreme authority, removed from party politics. Ironically, this may seem reminiscent of the role of the emperor in pre-republican times in Germany to some.

The Relationship between European Integration and the German Constitutional Order In domestic politics, explaining the role of the German Constitutional Court as that of a surreptitious political player is not that complicated. The role of the Court in the European Union context is more difficult to assess. This has to do with the evolution of the case law of the Court from initial silence to a much more activist stance today. This development is 8

See the empirical study of U. Kranenpohl, Hinter dem Schleier des Beratungsgeheimnisses (Wiesbaden: VS Verlag, 2010).

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partly due to the clear pro-European position and unambiguous wording of the 1949 Constitution, which because of its clarity was and still is difficult to reinterpret by the Court. At the same time, the context of the Constitution has changed dramatically with the 1989/1990 reunification of Germany.

The German Constitution (1949) Most hallmarks of the 1949 Grundgesetz, the constitution of the second German Republic, may be explained as a reaction to the Nazi dictatorship and the failures of the first – Weimar – Republic.9 The most striking case is point is probably the so-called eternity clause of Article 79 (3) Grundgesetz specifying the absolute limits to constitutional amendment. Among other things, the clause protects the core of the rule of law and democracy. Considering the recent experience of a devastating war and occupation, it comes as no surprise to find at the very beginning of the Constitution, in its preamble, a pledge to world peace and a “United Europe.” In the early 1960s, this strong commitment to European and international cooperation was captured by the term offene Staatlichkeit – literally, open statehood.10 Elements of this openness include the commitment to human rights, the prohibition of aggression, and the possibility to transfer sovereign rights to supranational entities such as the European Union.

The Return of Sovereignty: A New Direction after Reunification? Although the 1949 Constitution was clearly drafted as an interim legal order until reunification would be accomplished, it has outlasted this expiration date. Germany kept its Grundgesetz even after reunification, mostly because it was well established and generally considered a good constitution. There was a major overhaul of the Constitution, though. In this context, the constitutional provisions governing Germany’s membership in the European Union were rewritten, without giving up the aim 9

10

See in the following part in more detail F. C. Mayer, “Defiance by Constitutional Court – Germany,” in A. Jakab and D. Kochenov (eds.), The Enforcement of European Union Law and Values (Oxford: Oxford University Press, 2017), pp. 403–421 [403, 404]. K. Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit, Recht und Staat in Geschichte und Gegenwart 292/293 (Tübingen: Mohr, 1964), p. 42.

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of a United Europe. However, the fact that the new Article 23 – on European integration – focuses on German constitutional limits to membership in the European Union can be read as foreshadowing future developments. Some of these limits even link to the so-called eternity clause of Article 79 (3) Grundgesetz, thus directly connecting the limits to European integration and the provisions dealing with absolute limits to constitutional amendment.

The Case Law of the German Constitutional Court on European Union Matters A constitution has many interpreters. But ultimately, most people will accept that the constitution is what the Constitutional Court says it is. This is also true for European integration-related aspects of the German constitution.

The Pre-Reunification Case Law The early days of European integration are characterized by the absence of the German Constitutional Court’s voice. The Court never scrutinized the founding treaties, and the groundbreaking decisions of the European Court of Justice (ECJ) in Luxemburg of 1963 and 1964 establishing direct effect and primacy of European Union law11 went completely unnoticed by the German Constitutional Court. It is not without irony that the very case that the ECJ used in 1970 to confirm that primacy of European Union law included primacy over the member states’ constitution12 became the case that would be the first major act of resistance of the German Constitutional Court against the challenges of European integration. In the 1974 Solange I case,13 the Court held that as long as fundamental rights protection at the European level did not correspond to the level of protection under the German constitution, it would claim jurisdiction over European acts. Twelve years later, the Court acknowledged that in the meantime, the ECJ had built up a sufficient level of protection, so that as long as that remained the case

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Van Gend en Loos, Case 26/62, 1963 E.C.R. 1, 13; Costa v. E.N.E.L., Case 6/64, 1964 E.C.R. 585, 594. Internationale Handelsgesellschaft, Case 11/70, 1970 E.C.R. 1125, 1134. BVerfGE 37, 271, 282 (May 29, 1974) (Solange I decision).

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(Solange II),14 the German Constitutional Court would not exercise its jurisdiction, insisting on the principle that it was still having this jurisdiction. A standard account of that story is that the ECJ developed a sufficient standard of fundamental rights protection because of the German Constitutional Court’s pressure articulated by the Solange I decision. The causality is not that clear, though. The strongest argument for the advancement of fundamental rights protection on the European Union level brought forth in the 1986 Solange II decision is the ECJ’s Nold case. In the dissenting opinions of the German Constitutional Court’s 1974 decision Solange I, however, it becomes clear that the Germans already knew about the Nold case at that point. This clearly conflicts with a standard account proclaiming that the ECJ’s development of fundamental rights as judge-made law was a mere reaction to the pressure exercised by the German Constitutional Court. This is not to say that the German constitutional law’s focus on the protection of the individual’s fundamental rights had no impact on the European Union level. In fact, the protection of fundamental rights increasingly became an issue up to the 2000/2009 Fundamental Rights Charter. This, however, relates less to a specific action of the Court than to the general influence of German constitutional law’s mode of thinking. The latter type of impact may be coined legal export: The German Constitutional Court’s approaches and concepts, in the sense of a very general influence, are taken to the European Union level. Interaction takes place on a legal playing field – courts talking to courts in a classical constellation in which political implications are limited.

After Reunification: Discovering Sovereignty and Parliament The 1993 Maastricht decision15 marks a turning point in the case law of the Court. It was the first time that the Court scrutinized an important European integration treaty. Although the Maastricht Treaty as such turned out to be compatible with the Constitution, the decision emphasizes the German constitution’s limits to European integration – limits that are difficult to contest, as they are explicitly mentioned in the Constitution, and limits that are less obvious, as they derive from the Court’s interpretation of the Constitution. The decision also introduced 14 15

BVerfGE 73, 339 (October 22, 1986) (Solange II decision). BVerfGE 89, 155 (October 12, 1993) (Maastricht decision).

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the idea that the Constitutional Court could patrol the limits of the European Union’s powers and declare any act overstepping the European Union’s competences inapplicable in Germany (ultra vires-control). The decision’s core concern was not the “openness” of the German Constitution but rather the limits imposed by German statehood (Staatlichkeit), which is effectively synonymous with sovereignty. Neither the word statehood (Staatlichkeit) nor the term sovereignty (Souveränität) can be found in the text of the 1949 constitution. The Court began to emphasize statehood as a concept a mere three years after Germany attained full formal sovereignty with German reunification and the 2+4 Treaty. Concomitantly, the Court introduced the label of Staatenverbund for the European Union, a “compound of states” that evokes the concept of confederation (Staatenbund).16 It is also noteworthy that, in the Maastricht case, the Court introduced the individual right “to a [national] Parliament with a say” as a ruse to secure standing for the plaintiffs. Because on the surface the Maastricht decision was a purely domestic case, its impact and effect at the European Union level is more difficult to assess. It is hardly a coincidence, though, that the ECJ, also in 1993, decided in the famous Keck case17 that there had to be limits to the reach of fundamental freedoms such as the free movement of goods. Arguably, the limits-to-competences and the subsidiarity issue had been around for some time, and the German Constitutional Court was just spelling out in the clearest way what was a general trend. Nevertheless, they did set the tone for subsequent developments up to the Lisbon Treaty’s concern with categories of competences and subsidiarity control. The year 2005 brought another important development in the European Union related case law of the Court. In a case concerning the German Parliament’s proper involvement in the implementation of the European arrest warrant,18 the Constitutional Court strengthened the role of Parliament vis-à-vis the government. Although this outcome institutionally served Parliament well, the way the judges interrogated parliamentarians present at the hearings also caused some kind of trauma with the latter. The Court, as it were, let them appear as having no clue of 16

17 18

The term Staatenverbund is difficult to translate. In German, the term seems to imply an equidistance between Bundesstaat (federation) and Staatenbund (confederation), which gets lost in translation. The concept is clearly closer to the confederation. Keck and Mithouard, Joined Cases C-267/91 and C-268/91, 1993 E.C.R. I-6097. BVerfGE 113, 273 (July 18, 2005) (European arrest warrant).

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 

what they were doing when dealing with the European arrest warrant. That episode is an early example of an antagonism in European Union matters between the political players in Berlin and the judges. Quite possibly, some judges strengthened the national parliament with a view to weakening European integration. After all, a strong role of a national parliament makes decision-making at the European Union level more difficult. It also weakens the credibility of the European Parliament if Member States insist that democratic legitimacy must come from national parliaments. Note that this, again, is not legal player talking to legal player anymore. Additional examples supporting this point are, for instance, the 2011 and 2014 decisions concerning European Parliament election law where the German Constitutional Court in 2011 declared the German 5 percent threshold in a proportional voting system for the European Parliament election, and in 2014 the German 3 percent threshold to be unconstitutional, as far as Germany was concerned.19 This affects the European level as it changes the functioning of the European Parliament as the core political actor and thus constitutes an indirect way to influence the European Union political process. The 2009 Lisbon decision20 mirrors the 1993 Maastricht decision. Again, the treaty at stake, the Treaty of Lisbon, turned out to be compatible with the German Constitution. And again, the decision primarily concerned the limits to European integration. Ultra vires control as well as the generous approach to standing were confirmed. The decision also builds on the 2005 European arrest warrant decision and emphasizes the rights of Parliament. Beyond that, the Court also introduces Identitätskontrolle (identity review) as a new approach to the review of European Union law, complementing the existing ultra vires control.21 The Court’s test here is whether the core of the German constitution, its “identity” as enshrined in those provisions that indicate the Constitution’s inalterable principles (Article 79 (3) Grundgesetz, protecting among others the core of the democracy principle, the rule of law, and human dignity), is affected by European Union law. With the 2009 Lisbon decision, the German Constitutional Court seems to have pushed things too far. Although initial reactions in the media praised the decision, the reactions in the academic and the 19

20 21

BVerfGE 129, 300 (November 9, 2011) (5 percent); BVerfGE 135, 259 (February 26, 2014) (3 percent). BVerfGE 123, 267 (June 30, 2009) (Lisbon decision). BVerfGE 123, 267, 353–355, para. 240 (June 30, 2009) (Lisbon decision).

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political world were mostly critical. It was just too obvious that, although being far from perfect, the Lisbon Treaty did bring improvements on basically each and every constitutional law topic, from the protection of fundamental rights (introducing a binding Fundamental Rights Charter) to the control of European powers and competences (strengthening subsidiarity). Still, the German Constitutional Court elaborate on potential dangers and risks to the German constitutional order and on ultimate limits to European integration from the perspective of the German constitutional order. That decision revealed much clearer than ever before the major point of misunderstanding between the German Constitutional Court and the real political players: The latter know that there is no real risk of Germany’s marginalization in European politics. Even a superficial insight into the workings of European politics indicates that the largest Member State with its powerful economy is not in danger of being bullied. The German Constitutional Court apparently does not realize this. The Lisbon decision’s overprotective language, repeatedly insisting on Germany’s sovereign statehood, even turns out to be counterproductive. The inward-looking perspective alienates other member states, in particular the smaller ones. At this stage, the German Constitutional Court is not merely a potential political factor, it turns into a troublemaker in the European context. The Court will appear as a potential political problem if other German players face increased resistance to German policy actions or are even blocked from pursuing certain options because of the Court’s position as will be discussed in the next section. However, German players can still use the Court’s position as some kind of pretext to reject policy options at the European level. In that case, the political problem is not a German problem. Probably reacting to the overwhelming critique of the Lisbon decision,22 the Constitutional Court recalibrated the ultra vires doctrine in its 2010 Honeywell decision.23 Here, the Court made ultra vires decisions invalidating European Union law in Germany contingent on a number of

22

23

See, e.g., the contributions by C. Schönberger, D. Halberstam, C. Möllers, and C. Tomuschat in the special section of the special issue on the Lisbon Judgment of the Federal Constitutional Court in German Law Journal 10 (2009), 1209, 1241, 1260. BVerfGE 126, 286, 303–307, paras. 58–66 (July 6, 2010). See also F. C. Mayer and M. Walter, “Die Europarechtsfreundlichkeit des BVerfG nach dem Honeywell-Beschluss,” Jura 33.7 (2011), 532–542.

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 

preconditions, making it quite unlikely that the Court would declare a European Union act ultra vires. With this decision, the case law of the German Constitutional Court seemed to have reached a state of modus vivendi with the ECJ. In principle, the German Constitutional Court insists on the possibility to scrutinize European Union action. The conditions for invalidating European Union law in Germany set by the Court appear rather hypothetical, though.

The German Constitutional Court as a Political Player before the Euro Crisis? As soon as the Constitutional Court began to resist European developments, it became a political factor. Given the stark words of the Solange I decision and the German Constitutional Court’s insistence on jurisdiction over European Union law in fundamental rights matters,24 the Court’s emergence as a political factor can be dated as early as 1974. Now, the German government could hide behind the Court when impeding unpopular decisions in Brussels by using the Court as an argument in negotiations, pointing to actual or potential fundamental rights issues. The independence of the Court made it possible for German players at the European level to raise policy objections in the form of legal concerns. Conveniently, these would not necessarily come across as the concerns of the German government but were reframed as concerns about what the German Constitutional Court may think. Thus, instead of risking a reputation of selfishly pursuing German interests, the German government could use the more noble argument of fundamental rights concerns. The 1993 Maastricht decision with its global threat to invalidate ultra vires European Union acts for Germany goes much further. With not only fundamental rights but also the general reach of European Union powers available as a legal argument, the reach of the “our-court-willnot-like-this” argument was potentially much wider. The political role of the Court in such a context remained passive, though. Other players could use the Court and its actual or potential decisions as an argument in the political arena. The political agenda of the German Constitutional 24

See for an older testimony M. Hilf, “Solange II: Wie lange noch Solange?,” Europäische Grundrechtezeitschrift 14 (1987), 1, 2 (“In den politischen Beratungen vor allem des Rates wurde gelegentlich die Karte der Karlsruher Richter als letztes Mittel ausgespielt.”).

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Court was limited to defending its institutional self-interest and to upholding the myth of German sovereignty. The Court, of course, neglected the fact that the Federal Republic of Germany had never been sovereign. It was not sovereign when the founding treaties were concluded in the 1950s because of the remaining limitations caused by occupation. When occupation formally ended in 1990, Germany had already transferred a substantial amount of sovereign rights to the European level, a precondition of the Western allies for their consent of refounding Germany in 1949.25 Therefore, there simply was no moment in time where the Federal Republic was fully sovereign, which means that the German Constitutional Court’s reference to that glorious state of “Staatlichkeit” (statehood) was mere fiction from the outset.

The Euro Crisis The German Constitutional Court and the Euro Crisis As early as May 2010, with the very first measures initiated to help the Greek government, the German Constitutional Court was seized by forces who had already been reluctant to give up the Deutsche Mark, Germany’s postwar currency. An innocent observer of the ensuing decisions of the German Constitutional Court in the Euro-crisis context could be led to assume that there was no major problem. After all, the German Constitutional Court did not block any of the measures initiated to help members of the Euro zone: Neither the measures taken to help Greece, nor the temporary mechanism set up under the name of European Financial Stability Facility (EFSF), nor the permanent structure known as ESM. Instead, the German Constitutional Court turned to the strategy of continuously strengthening the supervision and veto rights of the German Parliament in Euro matters. At the same time, the Court continued to be more than generous as far as standing for individuals bringing European Union cases to the Court was concerned. Thus, the German Constitutional Court remained involved in the Euro rescue matter in a quasi-permanent way. And with the continuous threat of the German Constitutional Court invalidating measures taken to rescue the Euro, the German 25

Art. 7 para. 2 of the “Deutschland-Vertrag”(“Vertrag über die Beziehungen zwischen der Bundesrepublik Deutschland und den Drei Mächten in der Fassung des Pariser Protokolls”), October 23, 1954, Bundesgesetzblatt 1955 II, 305.

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 

Constitutional Court did become a political player in the Euro crisis. There are at least two aspects to this. First, the old game of the German government using the Court as an argument in negotiations is still an issue. Even more importantly, however, the Court emerged as an active player, directly impacting on the political process by indicating what can be done. What was also new in the Euro-crisis saga is that more than ever, the German Constitutional Court seemed to be out of synchronization with the preferences of the other German political players as far as European Union matters are concerned. In a critical reading of that development, the German Constitutional Court is even out of synchronization with German interests in the European Union. The active political role the Court takes on in recent times became openly visible with the German Constitutional Court’s decision to ask the ECJ to scrutinize the legality of ECB action in the Euro crisis in January 2014, in the very first preliminary reference submitted to the ECJ.26

The Outright Monetary Transactions Case In September 2012, ECB President Draghi had announced that the ECB would, if necessary, relieve the pressure on Euro states in trouble by buying bonds on the secondary market issued by these states if they committed themselves to a EFSF/ESM program and strict conditions – or conditionalities in Eurospeak.27 The issue at stake here was whether such an OMT program is compatible with the law of the European Union and with German constitutional law, and it was brought to the German Constitutional Court.28 This led to the German Constitutional Court’s first-ever reference to the ECJ in January 2014. According to the majority opinion underlying the reference, OMT was illegal.29 Six judges of the Court believed that the OMT program was outside the mandate of the ECB, exceeding the realm of monetary policy.30 They also believed that the OMT program violated the prohibition on monetary financing of the founding treaties. 26 27 28

29 30

BVerfGE 134, 366 (January 14, 2014). Available at www.ecb.europa.eu/. For more detail, see F. C. Mayer, “Rebels without a Cause? A Critical Analysis of the German Constitutional Court’s OMT Reference,” German Law Journal 15 (2014), 111–146, www.germanlawjournal.com/index.php?pageID=11&artID=1613. BVerfGE 134, 366, 398–416, paras. 55–98 (January 14, 2014). Ibid., paras. 63, 69.

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Two dissenting judges stressed that the issue belongs to the realm of political questions (although in general, the Court does not openly endorse a political question doctrine) and that the Court should refrain from interfering. This remains the more convincing approach. It is quite stunning that the six majority judges believed they were able to decide a question that was – and is – highly controversial, even among economists. The new dimension of this case was that the Court was trying to play on the playing field of central banks and economists. As one of the dissenting opinions stated,31 it was in fact the Constitutional Court that increasingly appeared to overstep the limits and boundaries of its powers and expertise. Following the opinion of the Advocate General dated January 14, 2015,32 the ECJ eventually ruled on June 16, 2015 that the OMT program was not exceeding the ECB’s mandate. After this decision, the German Constitutional Court held another hearing in February 2016 – a fairly unusual measure after a preliminary reference ruling. In its final decision on June 21, 2016, the Court basically accepted the ECJ’s decision on the legality of the OMT program, not without indicating some caveats. Under certain conditions, programs such as OMT are not ultra vires. Even though the negative consequences for the ECB’s monetary policies have hereby been averted, the conflict is far from resolved. The German Constitutional Court’s remark that the ECJ was still within the boundaries of its competences, for instance, deserves some attention. It is not clear yet if the Court repeals Solange II with this judgment, but it came hardly as a surprise when the Court stated that the human dignity core of any fundamental right protected under the German Constitution is part of Germany’s constitutional identity and can be invoked against European Union law.33

Subsequent Developments With the Euro crisis, the German Constitutional Court has gained visibility and relevance as a political player way beyond Germany. This role attracts criticism. The level of frustration with the impact of a Member State court on the decision-making process among governments 31

32

33

BVerfGE 134, 366, 419, dissenting opinion of Judge Lübbe-Wolff, para. 2 (January 14, 2014). Opinion of Advocate General Cruz Villalón, Case C-62/14, Gauweiler and Others (January 14, 2015). BVerfGE 142, 123 (June 21, 2016), para. 176.

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 

in Brussels34 is probably still best captured by the story of International Monetary Fund Managing Director Christine Lagarde saying in the context of the Euro crisis in 2012 that she will leave the room if the German Constitutional Court is mentioned one more time.35 The Court appears as a player violating the rules of reciprocity and mutual trust indispensable to the European political process. These rules are the rules of the primary political players and ground rules of any political process. On a formal level, these political rules do not bind the Court; thus it is not even possible to blame the Court for ignoring them. Still, the overall effect of the Court’s judgments is that outside Germany it is perceived as a court playing into the hands of German hegemony. What is more, the decisions are almost unassailable; who wants to doubt the independence of the Constitutional Court or challenge the Court’s core argument on democracy? The Euro cases also triggered a domestic – that is German – debate on the role of the Court and European Union politics, which is less concerned with the effects of the decisions outside of Germany. The Euro cases draw on the existing case law and develop it further. But there is also a new quality of the Court’s role and a debate on challenging this role. This is probably best explained as the cumulative effect of several developments. First, the topic of monetary union is simply of much more political relevance and sensitivity than, say, the importation of mushrooms in the 1974 Solange I case. Then, there is also a more recent strand of general critique of the judges’ extrajudicial “political” behavior,36 among others triggered by an appearance of the president of the Court at the Bundespressekonferenz (national press conference in Berlin).37

34

35

36

37

After all, because of the German Constitutional Court, European Council meetings had to be rescheduled. “If I hear the word Karlsruhe one more time, I’m leaving the room,” Kay-Alexander Scholz, “Karlsruhe’s Constitutional Monastery,” Deutsche Welle, September 11, 2012, www.dw.de/karlsruhes-constitutional-monastery/a-16231161. Consider in this context the outburst of the then-Interior Minister Friedrich in early 2013: “If constitutional court judges want to make policy, then they should run as a candidate for parliament.” S. Höll, “Innenminister Friedrich rügt obersten Verfassungsrichter,” Süddeutsche Zeitung, April 23, 2013, www.sueddeutsche.de/ politik/sicherheits debatte-innenminister-friedrich-ruegt-obersten-verfassungsrichter-1.1657163. H. Müller Vogg, “Voßkuhle spricht nicht nur durch seine Urteile,” Bayernkurier, March 9, 2013, www.bayernkurier.de/zeitung/artikel/ansicht/8522-voskuhle-spricht-nicht-nurdurch-seine-urteile.html; Heinrich Wefing, “Gefährlicher Flirt – Warum Verfassungsrichter Sicherheitsabstand zur Politik halten sollten,” Die Zeit, March 7, 2013, www.zeit .de/2013/11/Verfassungsrichter-Politik-Abstand.

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The flip side of the Court appearing as a political player is that politicians increasingly try to anticipate sensitivities of the German Constitutional Court. Naturally, this is not to say that there is anything wrong with politicians trying to respect the framework of the Constitution. However, the reality of the Euro crisis is that constitutional law arguments replace political arguments, which goes far beyond an attempt to respect the constitutional framework. Part of the domestic critique of the Court also has to do with a line of different judgments that were highly controversial. Some of these decisions were European Union related and of interest in particular to the academic world, such as the Court’s harsh reaction38 to the ECJ’s Åkerberg Fransson decision.39 Others were European Union related and of more general interest, like the decisions invalidating the German rules governing elections to the European Parliament, which appeared as anti– European Parliament. And there are also more recent decisions that are not European Union related but are controversial because of their impact on society (e.g., concept of family).40 All this put together explains why the German Constitutional Court, in a position of unprecedented power, also became subject to unprecedented critique. It also explains why it is not possible to describe a particular political agenda of the Court. Arguably, there is no such positive political agenda beyond institutional self-interest and changing majorities and coalitions among the judges on specific issues.

Beyond the Euro Crisis: What Next? Likely as not, the Euro crisis is far from over. Additionally, there are Euro-related cases pending in Karlsruhe, including a case that led to the second preliminary reference submitted to the ECJ by the German Constitutional Court,41 again on ECB action.42 There are also cases unrelated to the Euro that keep the German Constitutional Court in the center of European politics, the most visible one being the case on CETA, the EU-Canada Free Trade Agreement,43 which is highly controversial in Germany. 38 39 40 41 42 43

BVerfGE 133, 277 (April 24, 2013). ECJ, Åkerberg Fransson, Case C‑617/10 (February 26, 2013). BVerfGE 133, 59 (February 19, 2013). 2 BvR 859/15 et al., ECLI:DE:BVerfG: 2017:rs20170718.2bvr085915 (July 18, 2017). This time, it is about the PSPP of the ECB. BVerfGE 143, 64 (October 13, 2016).

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Thus, the power of the German Constitutional Court remains visible and an issue. For those who consider the political weight of the German Constitutional Court a problem, the central concern will be the quest for solutions. As far as the larger setting of European Union politics is concerned, the least the German government can do is to avoid using the Court as an argument or a pretext. One option for the other European Union Member States to counter the German argument of “our court says . . .” is to establish corresponding resources at home. This may partly explain recent developments in France, where the Conseil constitutionnel now has a right to judicial review, or the United Kingdom, which introduced a Supreme Court. This is an ongoing development, and it is too early to assess these new institutional arrangements. However, if this leads to a political process where each Member State points to the respective constitutional or supreme court at home defending actual or perceived national interests, this would endanger the unity of European Union law. However, if new judicial players demonstrate how to deal with European Union related legal issues constructively, this could also influence the German Constitutional Court. The German players have more options to influence the German Constitutional Court than other Member States or European Union institutions that have no control over this Court: They could modify their institution and the rules it is based on. Nevertheless, as the US experience with court packing in the New Deal era teaches us, when it comes to courts, not everything legally conceivable is also politically feasible.44 The most comprehensive option, amending the Constitution, is likely impractical. Slightly more realistic is the option to amend the statute governing the German Constitutional Court’s jurisdiction. However, such a move would still have to deal with the foreseeable popular criticism that politicians would be trying to curb the Court for selfish political reasons. At the same time, this argument points to the source of the German Constitutional Court’s power, which ultimately also provides an explanation for some of the developments described earlier. At least some of the judges may identify with the role of spokesperson, giving a voice to an assumed silent popular majority beyond the “Berlin elites,” a 44

On court packing as the most dramatic measure and its limits, see F. C. Mayer, “Kompetenzverschiebungen als Krisenfolge? Die US-Verfassungsentwicklung seit dem New Deal und Lehren für die Euro-Krise,” Juristenzeitung 69 (2014), 593–602.

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counterpoint to the “mainstream.” But the assumption of a silent majority can be misinformed. At the end of the day, politicians will make a cost-benefit analysis of whether the political cost to curb the Court is worth the benefit. For the time being, given the Court’s popularity, the cost of curbing it seems prohibitive. Ultimately, change may come from within the Court. Dissenting opinions from Solange I to the OMT decision have been part of the European Union case law of the German Constitutional Court many times, and most of them demonstrate that an alternate approach to European integration is possible. The German Constitution is sufficiently open to provide alternate narratives for the relationship between the European and the German legal orders. This alternative focuses on judicial self-restraint when it comes to European political issues. Commenting and discussing the European Union related cases of the German Constitutional Court with such a principle in mind may help to convince judges of this alternative and may lead to a respective majority within the Court. But this may take some time. More recently, yet another development has overshadowed the critique. With the dismantling of the Polish Constitutional Tribunal as an institution in Poland, the weakening of the rule of law in Hungary, and the rise of populists in Europe and elsewhere, the value of a functioning constitutional court acquires new significance. Suddenly, the vulnerability of such a court against a determined authoritarian political power becomes distressingly obvious. The integrity of a constitutional order and the existence of a constitutional court can no longer be taken for granted in Europe. This does not mean that critique of the court shall not be allowed at all.45 However, the fate of the Poland Constitutional Tribunal hammers home a rather painful lesson: As is the case in other domains, we only learn to value a functioning, independent constitutional court once either the court or its independence are gone. The purpose of a constitutional court is to prevent the abuse of power. In a very fundamental sense, this is also the purpose of European integration. From this perspective, then, the two are natural allies. Maybe the rise of authoritarian, nationalist, and populist trends will bring them closer to each other again. 45

See in that context the view of German Constitutional Court Justice P. Huber, “Europäische Verfassungs- und Rechtsstaatlichkeit in Bedrängnis,” Der Staat 56 (2017), 389–414 [414].

9 Fundamental Rights in Europe after Opinion 2/13 The Hidden Promise of Mutual Trust

    

Introduction Like a glamorous celebrity couple whose marital happiness glossy magazines treat with fascination, the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) continues to intrigue legal academia. The significant overlap between the jurisdiction of both courts would ordinarily be a recipe for judicial skirmishes,1 a risk that has only increased in recent years. While the CJEU has long reviewed European Union acts in the light of the European Convention on Human Rights (ECHR), the adoption of the Charter of Fundamental Rights as a binding instrument2 in 2009 has complicated things further. Human rights adjudication now is no longer a sideshow but the CJEU’s core business,3 exacerbating the risk

The authors are indebted to Christine Landfried and Bruno de Witte for their incisive comments on an earlier draft of this chapter. 1 See, generally, Y. Shany, The Competing Jurisdictions of International Courts and Tribunals (Oxford and New York: Oxford University Press, 2004). 2 According to Article 6(1) TEU, the European Union “recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” 3 G. De Búrca, “After the EU Charter of Fundamental Rights: The Court of Justice as a Human Rights Adjudicator?,” Maastricht Journal of European and Comparative Law 20 (2013), 168–184; T. Tridimas, “Fundamental Rights, General Principles of EU Law, and the Charter,” Cambridge Yearbook of European Legal Studies 16 (2014), 361–392 [362–364]; S. Douglas-Scott, “The Court of Justice of the European Union and the European Court of Human Rights after Lisbon,” in S. de Vries, U. Bernitz, and S. Weatherill (eds.), The Protection of Fundamental Rights in the EU after Lisbon (Oxford: Hart Publishing, 2013), pp. 153–180 [158].

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     /

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of conflicts with the ECtHR.4 Yet, in contrast to the knee-jerk reactions of certain state constitutional courts at the prospect of losing business to Luxembourg,5 the ECtHR has continued to put a premium on judicial dialogue. Even though the CJEU’s adverse opinion6 on the European Union’s accession to the Convention came as “a great disappointment” to the Strasbourg court,7 the relationship between both supranational courts continues to be characterized by mutual trust and cross-fertilization. This contribution takes a closer look at this productive partnership and asks whether the existing legal framework guarantees the endurance of the cooperative dialogue between both courts. First, it summarizes the ground rules of their symbiosis, going over the Convention’s status in European Union law and the ECtHR’s recognition of the European Union’s legal personality. Then, it briefly addresses the impact of Opinion 2/13 on the European Union’s accession to the Convention before exploring, in section 3, the many forms that the judicial dialogue between the CJEU and the ECtHR has taken over the years and discussing the 4

5

6

7

C. Eckes, “EU Accession to the ECHR: Between Autonomy and Adaptation,” The Modern Law Review 76 (2013) 254–285 [280]; H. Porsdam, From Civil to Human Rights: Dialogues on Law and Humanities in the United States and Europe (Cheltenham, UK, and Northampton, MA: Edward Elgar, 2009), p. 102. Describing how such conflicts might arise, see, e.g., H. J. van Roosmalen and A. Pahladsingh, “Het Handvest van de grondrechten van de Europese Unie: beweging in de rechtspraak,” NtER (2013) 3, 83–92 [86]. At the same time, Article 52(3) of the Charter intends precisely “to ensure the necessary consistency between the Charter and the ECHR” (Explanations Relating to the Charter of Fundamental Rights, OJ [2007] C 303/33) by defining the scope and meaning of fundamental rights in relation to the Convention and by referring to the level of protection set by the ECHR as European Union minimum standards. Procedurally, there was the introduction of the question prioritaire de constitutionalité in three different European Union member states, which was ruled incompatible with Article 267 TFEU: CJEU, Order of 1 March 2011 in Chartry, C-457/09, EU:C:2011:101 (Belgium); CJEU, Judgment in Melki and Abdeli, C-188/10 and C-189/10, EU:C:2010:363 (France); Judgment in A and B, C-112/13, EU:C:2014:2195 (Austria). Substantively, tensions between the CJEU and the national constitutional courts ran high in the context of the European Arrest Warrant. See in particular the Judgment in Melloni, C-399/11, EU: C:2013:107. See A. Pliakos and G. Anagnostaras, “Fundamental Rights and the New Battle over Legal and Judicial Supremacy: Lessons from Melloni,” Yearbook of European Law 64 (2015), 97–126; D. Thym, “Separation versus Fusion: How to Accommodate National Autonomy and the Charter? Diverging Visions of the German Constitutional Court and the European Court of Justice,” European Constitutional Law Review 9 (2013), 391–419. CJEU, Opinion 2/13 (“Accession of the European Union to the European Convention on Human Rights”), EU:C:2014:2454. D. Spielmann, “Foreword of the President of the ECtHR,” Annual Report of the European Court of Human Rights (Strasbourg: Registry of the European Court of Human Rights, 2014), p. 7.

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influence of the jurisprudence of one over the other. A final part relies on the notion of systemic integration to argue that the cooperation between both courts goes beyond voluntary comity and amounts to a legal duty.

Jurisdictional Overlap While the two courts belong to discrete legal orders, they are “forced to confront each other’s existence”8 in several ways. The European Union is not bound by the Convention as a matter of international law because it is (still) not a party to it.9 Yet, because all European Union member states are party to it,10 the CJEU has traditionally considered the rights contained in that treaty as principles common to the constitutional traditions of the member states and, for that reason, general principles of European Union law.11 By doing so, the Court sought to avoid early on that member states violate the Convention by complying with European Union law or that they jointly incur Convention responsibility for the acts or omissions of their supranational agents, the European Union institutions. The 1992 Maastricht Treaty has codified this long-standing 8 9

10

11

Douglas-Scott, “The Court of Justice of the European Union,” p. 157. As the CJEU put it in its judgments in Åkerberg Fransson (C-617/10, EU:C:2013:105, para. 44) and Kamberaj (C-571/10, EU:C:2012:233, para. 62) the Convention “does not constitute, as long as the European Union has not acceded to it, a legal instrument which has been formally incorporated into European Union law. Consequently, European Union law does not govern the relations between the ECHR and the legal systems of the Member States, nor does it determine the conclusions to be drawn by a national court in the event of conflict between the rights guaranteed by that convention and a rule of national law.” See also CJEU, Opinion 2/13, EU:C:2014:2454, para. 179. It seems clear that being party to the ECHR is one of the so-called Copenhagen criteria listing the conditions for European Union membership. See in particular the Joint Declaration by the European Parliament, the Council and the Commission, OJ (1977) C 103/1, which were confirmed by the European Council at Copenhagen on June 21 and 22, 1993 (6 EC Bull. [1993], point I.13) and are now referenced in Article 49 TEU. See K. Lenaerts, P. Van Nuffel, and N. Cambien (ed.), European Union Law (Oxford and New York: Oxford University Press, 2011), pp. 92–93 and 828. See CJEU, Judgment in Internationale Handelsgesellschaft, 11/70, EU:C:1970:114, para. 4 and Judgment in Nold v. Commission, 4/73, EU:C:1974:51, para. 13. In more detail, see Lenaerts et al., European Union Law, pp. 826–829 and B. de Witte, “Community Law and National Constitutional Values,” LIEI (1991), 2, 1–22. While the European Union Charter is now the Court’s main source of fundamental rights, general principles of European Union law have not lost all relevance, see Tridimas, “Fundamental Rights,” pp. 378–379 and H. Hofmann and C. Mihaescu, “The Relation between the Charter’s Fundamental Rights and the Unwritten General Principles of EU Law: Good Administration as a Test Case,” European Constitutional Law Review 9 (2013), 73–101.

     /



jurisprudence in the Treaty on European Union, introducing a formal reference to the Convention in the Treaties.12 According to said jurisprudence, the ECHR is binding on the European Union institutions and on member states when they are acting within the scope of Union law.13 The upshot of this is that even though the European Union is not a party to the Convention, the CJEU applies (and interprets) the rights contained in the Convention, using them as a yardstick for legality review. In sum, the Convention has been fully integrated not just into the laws of the member states but also into European Union constitutional law.14 The effect of the Convention and ECtHR case law in the European Union legal order therefore remains a matter not of international but of domestic law – European Union law.15 This is particularly clear now that the Union has a binding fundamental rights catalogue of its own that explicitly addresses its relationship to the Convention. In Article 52(3), the Charter creates an “interpretive bridge”16 between the European Union fundamental rights regime and the Convention, stipulating that 12

13

14

15

16

See Article F of the Maastricht Treaty, which became Article 6(2) TEU post-Amsterdam (1997) (“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law”). The Lisbon Treaty, which entered into force on December 1, 2009 moved the provision to Article 6(3) TEU and slightly amended its formulation. As Advocate General Sharpston observed in her opinion in Bartsch (C-427/06, EU: C:2008:297, point 69), this means that the national measure at issue must (1) implement EU law – irrespective of the degree of discretion the member state enjoys and whether the national measure goes beyond what is strictly necessary for implementation; (2) invoke some permitted derogation under European Union law, as in the Judgment in ERT, 260/ 89, EU:C:1991:254, paras. 41–45; or (3) must otherwise fall within the scope of EU law because some specific substantive rule of EU law is applicable to the situation, for instance because the national measure potentially hinders free movement, as in the Judgment in Karner, C-71/02, EU:C:2004:181, paras. 48–53. See further P. Eeckhout, “Human Rights and the Autonomy of EU Law: Pluralism or Integration?,” Current Legal Problems 66 (2013), 169–202 [175–180]. Eckes, “EU Accession,” p. 280. Advocate General Jacobs put it as follows in his opinion in Bosphorus (C-84/95, EU:C:1996:179, point 53): “Although the [Union] itself is not a party to the Convention . . . and although the Convention may not be formally binding upon the [Union], nevertheless for practical purposes the Convention can be regarded as part of [Union] law and can be invoked as such both in this Court and in national courts where [Union] law is in issue.” D. Spielmann, “The Judicial Dialogue between the European Court of Justice and the European Court of Human Rights or How to Remain Good Neighbours after the Opinion 2/13,” Speech delivered at FRAME on March 27, 2017 in Brussels, www.fp7-frame.eu/wpcontent/uploads/2017/03/ECHRCJUEdialog.BRUSSELS. final.pdf.

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in so far as the Charter contains rights that “correspond” to rights guaranteed by the Convention, “the meaning and scope” of the former shall be the same as those of the latter.17 More importantly, the provision adds that this “shall not prevent Union law providing more extensive protection,” thus making use of the leeway that Article 53 of the Convention leaves to contracting parties to lay down higher standards of protection of fundamental rights. In this way, the Charter treats the Convention as laying down the minimum standard below which the protection offered by the Charter may not fall.18 As a baseline, Article 53 of the Charter adds a sort of standstill clause according to which the Charter must never be interpreted as setting a lower level of protection than what European Union law, international law, the Convention, and member states’ constitutions required on December 1, 2009.19 This means that it falls to the CJEU to determine in a concrete case whether European Union legislation or a national measure implementing European Union law violates the Convention or simply goes above and beyond. That determination is particularly difficult to make when two or more rights must be balanced against each other, presenting a risk of conflict between the CJEU and the ECtHR. Taken together, these provisions give the CJEU some margin of maneuver to shield European Union law from the Convention. In this connection, it is worth remembering that Luxembourg’s mission differs from Strasbourg’s: where the latter strives to lay down minimum standards for the 47 parties to the Convention, the former seeks to ensure the primacy, effectiveness, and uniformity of European Union law. Hence, the ECtHR may, on the basis of Article 53 ECHR, leave a European Union member state free to provide more extensive protection – by setting a more demanding standard for what constitutes a fair trial, for instance – whereas the CJEU will deny that member state the freedom to deviate from the balance that a particular instrument of European Union law has struck between competing fundamental rights, 17 18

19

The Explanations to the Charter set out which rights “correspond” to each other. On the relationship between the Charter and the Convention as prescribed by Articles 52 and 53 of the Charter, see K. Lenaerts, “The Court of Justice of the European Union and the Protection of Fundamental Rights,” Polish Yearbook of International Law 31 (2011), 79–106 [98–104]. See the explanations to Article 53 of the Charter, C303/05 (“This provision is intended to maintain the level of protection currently afforded”) and K. Lenaerts, “Die EU-Grundrechtencharta: Anwendbarkeit und Auslegung,” Europarecht 47 (2012), 3–16 [13 and note 49].

     /



even by setting a standard of protection that is just barely higher than the ECHR minimum standard. As Melloni demonstrates, where a situation falls within the scope of European Union law, national courts may be required to deny individuals the benefit of more demanding constitutional guarantees in the interest of the primacy, effectiveness, and uniformity of the lower common denominator set by European Union secondary law. The CJEU’s role is that of a federal constitutional and supreme court, not that of a second supranational human rights court. Conversely, while European Union acts as such cannot be challenged before the ECtHR,20 this does not prevent the Strasbourg court from adjudicating cases involving the European Union. Because the European Union is not a party to the Convention, that court lacks personal jurisdiction to consider applications against the supranational organization.21 It also rejects applications that aim to establish the individual or joint responsibility of European Union member states for European Union measures unless they involve some sort of positive action by the state on their territory, thus meeting the jurisdictional requirement posed by Article 1 of the Convention.22 For this reason, the Court dismissed the application of a former European Union official against the (then) 15 European Union member states claiming that the annulment procedure in which he had challenged his dismissal before the CJEU violated Article 6 of the Convention because it did not allow him to respond to the opinion of the advocate general.23 That said, in Kokkelvisserij,24 Strasbourg significantly relaxed this requirement by suggesting that the mere act of requesting a preliminary ruling from the CJEU, by a state court, suffices to examine that state’s responsibility for defects in the preliminary ruling procedure. Moreover, in Gasparini,25 which concerned an employment dispute between the North Atlantic Treaty Organization (NATO) and an employee, the ECtHR even seems to have completely abandoned the requirement for the state to act, holding that the fact that the applicant alleged a “structural lacuna” in NATO’s internal dispute-settlement mechanism entitled it to examine the state’s Convention responsibility. The upshot is that an 20 21

22 23 24 25

Judgment in Matthews v. UK, Application No. 24833/94, para. 32. European Human Rights Commission, Confédération Française Démocratique du Travail v. the European Communities, Application No. 8030/77. Douglas-Scott, “The Court of Justice of the European Union,” p. 154. ECtHR, Judgment in Connolly v. 15 Member States of the EU, Application No. 73274/01. ECtHR, Judgment in Kokkelvisseri v. The Netherlands, Application No. 13645/05. ECtHR, Judgment in Gasparini v. Italy, Application No. 10750/03.

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applicant must either show that a member state directly or indirectly intervened in a European Union act or assert a structural lacuna in its internal dispute-settlement mechanism.26 In any event, when a jurisdictional nexus is present, the ECtHR may consider all acts and omissions of contracting parties and their organs, regardless of whether they were a consequence of domestic law or of the necessity to comply with international legal obligations.27 In other words, a European Union member state is not absolved from its Convention responsibility in the areas in which it has transferred power to the European Union,28 as this would allow it to determine the extent of its obligations at will, undermining the Convention’s effectiveness.29 The Strasbourg court thus has jurisdiction to consider the legality of an action by a European Union member state even though that action originates in European Union law, which means that it may indirectly judge on the compatibility of European Union acts with the Convention. Thus, in Bosphorus, the ECtHR saw no jurisdictional bar to considering whether the Irish authorities had violated Article 1 of the First Additional Protocol to the Convention by impounding an aircraft on Irish territory, notwithstanding the fact that Ireland was merely implementing a European Union regulation.30 This, however, risks putting a European Union member state in a dilemma between its loyalty to European Union law and compliance with the Convention. In effect, European Union law requires it to justify the actions or omissions for which it risks incurring Convention responsibility by relying on its 26

27 28

29 30

C. Reyngaert, “The European Court of Human Rights’ Approach to the Responsibility of Member States in Connection with Acts of International Organizations,” International and Comparative Law Quarterly 60 (2011), 997–1016 [1005]. ECtHR, Judgment in Bosphorus v. Ireland, Application No. 45036/98, para. 153. See already Matthews v. UK, para. 32, which concerned the individual liability of a European Union member state for European Union primary law in the adoption of which it was involved. The ECtHR has also considered several cases in which the collective responsibility of all European Union member states for European Union acts or omissions was asserted, although it never imposed sanctions. See, e.g., ECtHR, Judgment in Soc Guérin Automobiles v. 15 EU Member States, Application No. 51717/ 99; ECtHR, Judgment in Segi ea and Gestoras Pro Amnestia v. 15 EU Member States, Application No. 6422/02; ECtHR, Judgment in Senator Lines v. 15 EU Member States, Application No. 56672/00. Ibid., para. 154. See also Matthews v. UK, para. 22. Bosphorus v. Ireland, paras. 136–138. See also T. Lock, “Beyond Bosphorus: The European Court of Human Rights’ Case Law on the Responsibility of Member States of International Organisations under the European Convention on Human Rights,” Human Rights Law Review 10 (2010), 529–545 [532].

     /



obligations under the European Union Treaties. The result would be that European Union member states would be held separately or jointly liable for European Union acts, which undermines the international legal personality of the European Union. To avoid this, the Strasbourg Court in Bosphorus installed a rebuttable presumption that is sensitive to the margin of maneuver (“discretion”) that European Union rules leave for European Union member states. Echoing the Bundesverfassungsgericht’s Solange jurisprudence and picking up on the European Human Rights Commission’s 1987 decision in M. & Co. v. Germany,31 the Court held that “[a]s long as the relevant organization is considered to protect fundamental rights . . . in a manner which can be considered at least equivalent to that for which the Convention provides . . . the presumption will be that a State has not departed from the requirements of the Convention when it does no more than implement legal obligations flowing from its membership of the organization.”32 The ECtHR assesses whether a European Union member state’s acts or omissions are mandated by European Union law – in which case the presumption of equivalent protection kicks in and the state is presumed to have complied with the Convention – or whether European Union rules left them a margin of discretion, in which case the presumption does not apply and the Court examines whether the state exercised that discretion in a Convention-compliant manner. It is worth adding that, since Michaud v. France, the Court has added an additional condition: The application of the presumption of equivalent protection requires not just the absence of any margin of maneuver on the part of the domestic authorities but also “the full deployment of the supervisory mechanism provided for by European Union law.”33 Thus, in M.S.S. v. Belgium and Greece – a judgment that dates from before Michaud – the Court held that the so-called sovereignty clause in Article 3(2) of European Union Regulation 343/2003 (the Dublin

31

32 33

European Commission of Human Rights, M. & Co. v. Germany, Application No. 13258/ 87, D.R. No. 64, p. 138 (“the Convention does not prohibit a Member State from transferring powers to international organisations”.) Nonetheless, the commission recalls that “if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty it will be answerable for any resulting breach of its obligations under the earlier treaty.” Bosphorus v. Ireland, paras. 155–156. ECtHR, Judgment in Michaud v. France, Application No. 12323/11, paras. 114–115. The Court repeated that condition in its Judgment in Avotiņš v. Latvia, Application No. 17502/07, paras. 105 and 109–112.

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Regulation) allowed Belgium to refrain from transferring the applicant to Greece, where he ran a real risk of being subject to treatment contrary to Article 3 of the Convention.34 Because the measure under review therefore “did not strictly fall within Belgium’s international legal obligations,” the presumption of equivalent protection did not apply. Conversely, in Avotiņš v. Latvia, the ECtHR found that Article 34(2) of the Brussels I Regulation, as construed by the CJEU “in a fairly extensive body of caselaw,” did not confer any discretion on national courts in deciding whether to issue a declaration of enforceability.35 Moreover, that the Latvian Supreme Court had not made a reference for a preliminary ruling to the CJEU did not mean that the supervisory mechanism provided by European Union law had not been fully deployed, as Michaud prescribed.36 Thus, the Bosphorus presumption applied. Importantly, the Court in Bosphorus held that, even when the presumption applies, it may be rebutted if “in the circumstances of a particular case, [the Court finds] that the protection of Convention rights was manifestly deficient.”37 On its face, this formulation conveys that the ECtHR checks, every time it applies the presumption, whether the substantive and procedural guarantees afforded by the European Union legal system in a concrete case meet some sort of minimum standard derived from the Convention. Later judgments, however, suggest that the standard of review is even more deferential as the ECtHR merely makes a “wholesale”38 assessment of the judicial protection of fundamental rights in the European Union and will see no need to consider the presumption rebutted unless those guarantees deteriorate across the board. Moreover, in Avotiņš v. Latvia, the ECtHR has again nuanced the Bosphorus presumption by holding that “if a serious and substantiated complaint is raised before [a domestic court] to the effect that the protection of a Convention right has been manifestly deficient and that this situation cannot be remedied by European Union law, [that court] cannot

34 35 36

37 38

ECtHR, Judgment in M.S.S. v. Belgium and Greece, Application No. 30696/09, para. 365. Avotiņš v. Latvia, para. 106. Ibid., paras. 109–111. See P. Gragl, “An Olive Branch from Strasbourg? Interpreting the European Court of Human Rights’ Resurrection of Bosphorus and Reaction to Opinion 2/ 13 in the Avotiņš Case,” European Constitutional Law Review 13 (2017), 551–567 [557]. Bosphorus v. Ireland, para. 156. See D. Halberstam, “‘It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward,” German Law Journal 16 (2015) 1, 105–146 [131–134], who calls the distinction one between a “wholesale” and a “retail” examination of fundamental rights violations.

     /



refrain from examining that complaint on the sole ground that [it is] applying EU law.”39 This case concerned a Latvian court that, under the Brussels I Regulation, had no margin to deny granting an enforcement award of a judgment delivered by a Cypriot judge, even though there were fundamental rights objections to doing so. According to Spielmann, the judgment confirms the continued validity of the Bosphorus presumption post–Opinion 2/13 but also sends a clear signal that it should not be taken for granted, that is, that the ECtHR is eager to scrutinize the decisions of domestic courts implementing European Union law.40 It is worth remarking that even outside the narrow set of cases where it is asked indirectly to consider the compatibility of European Union acts with the Convention, the Strasbourg court explicitly or implicitly deals with European Union law more often than one would surmise.41 Next to the aforementioned cases of M.S.S. v. Belgium and Greece and Avotiņš v. Latvia, one may think of the line of cases in which the Court was asked whether the refusal of a national court to refer a reference for preliminary ruling to the CJEU amounts to a violation of Article 6 ECHR,42 or of Karoussiotis, which required it to determine whether the fact that the European Commission had already started infringement proceedings against Portugal rendered an application inadmissible under Article 35 (2)(b) of the Convention.43 39 40

41

42

43

Avotiņš v. Latvia, para. 116. Spielmann, “The Judicial Dialogue,” p. 15. However, Reyngaert, in “Oscillating between Embracing and Avoiding Bosphorus: The European Court of Human Rights on Member State Responsibility for Acts of International Organisations and the Case of the EU,” European Law Review 39 (2014), 176–192 [191], has observed that the ECtHR has traditionally been reluctant to second-guess the human rights adequacy of the internal procedures of other international organizations, in particular the European Union. The Court is wont to avoid being drawn into this difficult exercise by taking it as a given that the European Union offers equivalent protection or by finding that there either was no positive action by a member state or that European Union law left the member state a certain margin of discretion. C. Eckes, “EU Accession to the ECHR: Between Autonomy and Adaption,” Modern Law Review 76 (2013), 254–285 [260–262]; S. Douglas-Scott, “A Tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis,” Common Market Law Review 43 (2006), 629–665 [631]. See, for instance, ECtHR, judgments in Dhahbi v. Italy, Application No. 17120/09; Schipani and Others v. Italy, Application No. 38369/09; Ullens de Schooten and Rezabek, Application Nos. 3989/07 and 38353/07 and Ferreira, Application No. 30123/10. See further C. Lacchi, “The ECtHR’s Interference in the Dialogue between National Courts and the Court of Justice of the EU: Implications for the Preliminary Reference Procedure,” Review of European Administrative Law 8 (2015), 95–125. ECtHR, Judgment in Karoussiotis v. Portugal, Application No. 23205/08.

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To summarize, the ground rules of engagement between Luxembourg and Strasbourg are based on a nuanced reading of the Bosphorus formula. It becomes clear, however, that the present situation, whereby the European Union is not a contracting party to the Convention, gives rise not only to an additional layer of jurisdictional complexity but also leaves an accountability gap. While the adoption of the Charter has remedied that to some extent, the European Union remains shielded from external scrutiny, which means that there is still a gap between what the European Union does and what it requires from others – notably through the Copenhagen criteria.44 For that reason, the Lisbon Treaty made accession constitutionally required.45

The Impact of Opinion 2/13 The European Union’s long-planned accession to the Convention was dealt a significant blow in December 2014, when the CJEU held in Opinion 2/13 that the Draft Agreement between the 47 member states of the Council of Europe and the European Union was fundamentally incompatible with European Union primary law. The Court saw four constitutional issues with accession as envisaged by the agreement.46 First, it would upset the autonomy and specific characteristics of European Union law because the agreement (1) did nothing to prevent member states from departing from the level of protection provided for by the Charter or from otherwise compromising the primacy, unity, and effectiveness of European Union law by relying on Article 53 ECHR, which allows them to lay down higher standards of protection of fundamental rights than those guaranteed by the Convention;47 (2) failed to safeguard the principle of mutual trust between European Union 44

45

46

47

E. Spaventa, “A Very Fearful Court? The Protection of Fundamental Rights in the European Union after Opinion 2/13,” Maastricht Journal of European and Comparative Law 22 (2015), 35–56 [43] and, discussing the reasons for accession more generally, pp. 37–44. Article 6(2) TEU prescribes that “[t]he Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.” The Court’s touchstone was twofold. On the one hand, Article 6(2), second sentence, TEU, according to which the accession was not to “affect the Union’s competences as defined in the Treaties.” On the other hand, Protocol No. 8 relating to Article 6(2) European Union on the accession of the Union to the ECHR, which demands inter alia that the agreement “make provision for the preserving the specific characteristics of the Union and Union law” and not affect Article 344 TFEU. Opinion 2/13, para. 189.

     /



member states, which meant that member states could be required to check that another member state has observed fundamental rights as a matter of course; and (3) would allow circumvention of the preliminary ruling procedure through the mechanism introduced by Protocol No 16, through which the highest national courts could request advisory opinions from the ECtHR on rights corresponding to those guaranteed by the Charter. Second, accession would affect the CJEU’s exclusive jurisdiction (as per Article 344 TFEU) with respect to disputes concerning the interpretation or application of the Treaties because the agreement did not exclude the ECtHR from hearing disputes between member states or between member states and the European Union that concerned the application of the Convention but also fell within the scope ratione materiae of European Union law. Third, the corespondent mechanism would involve the ECtHR applying and interpreting the rules of European Union law governing the division of powers between the member states and the Union, and the CJEU’s prior involvement would not allow it to rule on the interpretation of secondary European Union law. Finally, because the CJEU does not have full jurisdiction over matters relating to the European Union’s Common Foreign and Security Policy, accession would confer jurisdiction to carry out a judicial review of the European Union’s acts and omissions in the light of fundamental rights exclusively on an international court outside the European Union institutional framework. As the Court had already held in Opinion 1/09, that would alter the essential character of the powers that the Treaties confer on the European Union institutions and on the member states and that are essential to the preservation of the very nature of European Union law.48 Many scholars have lambasted Opinion 2/13 for being focused more “on protecting [the Court’s] own prerogatives than [on] protecting fundamental rights or even the EU constitutional structure.”49 Eeckhout,

48 49

CJEU, Opinion 1/09, EU:C:2011:123, paras. 78, 80, and 89. Spaventa, “A Very Fearful Court,” p. 56 (parenthesis removed). For further criticism, see, e.g., “The EU’s Accession to the ECHR – a ‘NO’ from the ECJ!,” CMLRev 52 (2015), 1–16; S. Peers, “The EU’s Accession to the ECHR: The Dream Becomes a Nightmare,” German Law Journal 16 (2015) 1, 213–222; P. Eeckhout, “Opinion 2/13 on EU Accession to the ECHR and Judicial Dialogue: Autonomy or Autarky,” Fordham International Law Journal 38 (2015), 955–992; B. de Witte and S. Imamović, “Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order against a Foreign Human Rights Court,” European Law Review 40 (2015) 5, 683–705. See also the numerous blog posts written in the days after the opinion: T. Lock, “Oops! We Did it Again – the CJEU’s Opinion on EU

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for instance, argues that the CJEU has looked for problems that are not there: The fact that the accession agreement permits something whereas European Union law forbids it should not necessarily be viewed as an incompatibility.50 That Article 53 ECHR allows contracting parties to set higher standards of fundamental rights protection whereas the European Union Charter imposes a uniform standard of protection on European Union member states (which must not fall below the level set by the Convention) is only problematic if one adopts an exceptionally wide conception of conflict.51 Similarly, that member states are subject to the CJEU’s exclusive jurisdiction whereas the Convention would still allow intra–European Union conflicts to be brought before the ECtHR is not really incompatible with Article 344 TFEU.52 De Witte and Imamović similarly emphasize that the CJEU’s approach is “overly strict” where it takes issue with the plausibility review carried out by the ECtHR’s under the corespondent mechanism, simply because this would mean that the ECtHR would have to interpret European Union primary law with respect to the division of competences, even though it would not lead to a binding interpretation of those rules as a matter of European Union law.53 Spaventa is critical of the CJEU’s stance with respect to the Common Foreign and Security Policy because the Court prefers to accept that an individual be entirely devoid of judicial protection over having another body review European Union compliance with an international treaty.54 Other scholars, notably Halberstam, have maintained that the CJEU has a number of valid concerns, which are solvable either unilaterally or by small changes to the agreement.55 That said, the majority of

50 51 52 53 54 55

Accession to the ECHR,” Verfassungsblog, December 18, 2014, www.verfassungsblog.de/ en/oops-das-gutachten-des-eugh-zum-emrk-beitritt-der-eu/; W. Michl, “Thou Shalt Have No Other Courts before Me,” Verfassungsblog, December 23, 2014, www.verfas sungsblog.de/en/thou-shalt-no-courts/; A. O’Neill, “Opinion 2/13 on EU Accession to the ECHR: The CJEU as Humpty Dumpty,” Eutopialaw, December 18, 2014), http://eutopialaw.com/2014/12/18/opinion-213-on-eu-accession-to-the-echr-the-cjeuas-humpty-dumpty/; S. Peers, “The CJEU and the EU’s Accession to the ECHR: A Clear and Present Danger to Human Rights Protection,” EU Law Analysis, December 18, 2014, http://eulawanalysis.blogspot.no/2014/12/the-cjeu-and-eus-accession-to-echr.html. Eeckhout, “Opinion 2/13,” p. 967. Ibid. Ibid., p. 974. de Witte and Imamović, “Opinion 2/13,” pp. 697–698. Spaventa, “A Very Fearful Court,” p. 53. Halberstam, “A Modest Defense of Opinion 2/13,” p. 105.

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analysts agree that the possibility of accession has become more remote,56 and several of them are pessimistic about the continuation of judicial dialogue between the CJEU and the ECtHR.57 We show, however, that recent judgments like Aranyosi,58 H v. Council,59 and Rosneft60 appear to signal a willingness on the part of the CJEU to iron out the differences that it listed in Opinion 2/13.61 Even if the sacrosanct formula of preserving the primacy, unity, and effectiveness of European Union law might have been a valid concern on the part of the Luxembourg judges (as pointed out by Halberstam), this chapter examines the CJEU’s demonstrated ability to nuance and even compromise core principles of European Union law to cooperate with Strasbourg. Simultaneously, we discuss the ways in which the ECtHR explicitly and implicitly continues to enforce European Union law. Taken together, these two strings of case law interpretation provide a springboard for the argument that we advance here – namely, that the two courts are under a legal obligation to cooperate.

Jurisprudential Cross-Fertilization The ECtHR’s and the CJEU’s competing jurisdictions have coexisted in a productive fashion for years. It has frequently been observed that their interaction is characterized by a tendency to avoid open conflicts about the scope of fundamental rights and a preference for “judicial dialogue.”62 In the main, the two courts show great respect for each other’s 56 57

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Spaventa, “A Very Fearful Court,” p. 56. Eeckhout, “Opinion 2/13,” p. 990 (“the relationship between the CJEU and the ECtHR is unlikely to return to the past golden years of mutual respect and cooperation, let alone admiration. It will be difficult for Strasbourg not to look at [Opinion 2/13] as a rejection of its core judicial function: to serve as an external control organ for human rights violations in Europe”). More optimistically, see F. Fabbrini and J. Larik, “The Past, Present and Future of the Relation between the European Court of Justice and the European Court of Human Rights,” Yearbook of European Law 35 (2016) 1, 145–179. CJEU, Judgment in Aranyosi, C-404/15 and C-659/15 PPU, EU:C:2016:198. CJEU, Judgment in H v. Council, C-455/14 P, EU:C:2016:569. CJEU, Judgment in Rosneft, C-72/15, EU:C:2017:236, paras. 62–81. See J. Snell, “Is Opinion 2/13 Obsolescent?,” European Law Review 42 (2017), 449–450. See, e.g., Spielmann, “The Judicial Dialogue”; Fabbrini and Larik, “The Past, Present and Future”; T. Lock, The European Court of Justice and International Courts (Oxford and New York: Oxford University Press, 2015), 167 ff. Gragl, “An Olive Branch from Strasbourg”; Douglas-Scott, “A Tale of Two Courts.” On judicial dialogue generally, see Eeckhout, “Opinion 2/13,” p. 955; A-M. Slaughter, “A Global Community of Courts,” Harvard International Law Journal 44 (2003), 191–219.

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decisions and have demonstrated a degree of deference toward one another. This does not mean that there are no inconsistencies between the case law of Strasbourg, on the one hand, and that of Luxembourg, on the other,63 or that incompatibilities are swept under the carpet in the name of good neighborly relations. Rather, the decisions of both courts leave room for mutual accommodation. Where conflicts occur, they are often presented as an opportunity for convergence, as spurring a race to the top. Thus, as Fabbrini and Larik recently put it, the ECtHR and the CJEU are engaged in a “virtuous competition,”64 mutually influencing each other’s decisions. A conspicuous sign of this mutual influence is the citing of one another’s case law, even where there is no jurisdictional overlap. Such references are much more common in judgments of the CJEU, simply because it has considered itself bound by the ECHR since the 1970s. That said, while the Luxembourg court referred to the Convention as early as 1975,65 it took until 1996 for that court to rely explicitly on the case law of its brethren in Strasbourg.66 The latter, by contrast, had already made a reference to a CJEU judgment as early as 1979, in its landmark judgment in Marckx v. Belgium, and started invoking the European Union Charter as persuasive authority in 2002, even before the CJEU first relied on it.67 Still, the ECtHR has only sporadically cited Luxembourg case law,68 probably because it is the court exclusively adjudicating 63

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For a good (though already somewhat dated) overview, see J. Callewaert, “The European Convention on Human Rights and European Union Law: A Long Way to Harmony,” European Human Rights Law Review (2009), 768–783. See earlier D. Spielmann, “Human Rights Case Law in the Strasbourg and Luxembourg Courts: Conflicts, Inconsistencies, and Complementarities,” in P. Alston, M. Bustelo, and J. Heenan (eds.), The EU and Human Rights (Oxford and New York: Oxford University Press, 1999), pp. 757–780 [766]. Fabbrini and Larik, “The Past, Present and Future,” pp. 174–175 and, more generally, F. Fabbrini, Fundamental Rights in Europe (Oxford and New York: Oxford University Press, 2014). CJEU, Judgment in Rutili, 36/75, EU:C:1975:137, para. 32. CJEU, Judgment in P v. S, C-13/94, EU:C:1996:170, para. 16. As Douglas-Scott observes, this is somewhat ironic given that the Court had just held that the European Union lacked competence to accede to the Convention in Opinion 2/94, EU:C:1996:140. ECtHR, Goodwin v. UK, Application No. 28957/95, para. 100; CJEU, Judgment in JégoQuéré, C-263/02 P, EU:C:2004:210, para. 47. The CFI – now the General Court – was earlier to mention the Charter, see CFI, Judgment in Max.mobil, T-54/99, EU:T:2002:20, para. 48. See, e.g., ECtHR, Judgment in Posti and Rakho v. Finland, Application No. 27824/95, para. 53; ECtHR, Judgment in Nada v. Switzerland, Application No. 10593/08, para. 212 (referring to the CJEU, Judgment in Kadi, C-402/05 P and C-415/05 P, EU:C:2008:461,

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on human rights, and fundamental rights decisions were relatively rare in Luxembourg for a long time.69 With the adoption of the Charter, however, this all seems to be changing. The absence of references to the Convention or to Strasbourg decisions in more recent CJEU jurisprudence is notable.70 Vice versa, the ECtHR has started to cite CJEU case law more frequently since the Charter became binding. As Dean Spielmann, the former president of the ECtHR and now judge at the General Court of the European Union has noted, this is explained by the reasons that initially prompted both supranational courts to interact with the case law of one another. The CJEU now no longer needs to refer to the judgments of the ECtHR to legitimize its own case law or the autonomy of European Union law visà-vis national constitutional courts, while, to the ECtHR, “referring to EU law offered a basis to show contemporary consensus and modernize the interpretation of the Convention,”71 which it has consistently held is “a living instrument, to be interpreted in present-day conditions.”72 The same considerations are at stake when it comes to substantive cross-fertilization between the CJEU and the ECtHR. Strasbourg takes advantage of the Charter and the jurisprudence of the CJEU to update its construction of Convention rights, raising the bar of fundamental rights protection. Luxembourg pays close attention to Strasbourg’s decisions not just because Article 52 of the Charter and Article 6 TEU require it but

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para. 299 for the proposition that “the principles governing the international legal order under the United Nations” do not exclude all forms of judicial review of the internal lawfulness of an European Union regulation merely because that measure is intended to give effect to a Security Council resolution adopted under Chapter VII of the UN Charter, and applying it mutatis mutandis in the context of the Convention); ECtHR, Judgment in Scoppolla v. Italy (No. 2), Application No. 10249/03, paras. 105–106 (referring to CJEU, Judgment in Berlusconi, C-387/02, C-391/02, and C-403/02, EU:C:2005:270) as proof that a consensus had emerged that the retroactivity of the more lenient penalty was a fundamental principle of criminal law). Douglas-Scott, “The Court of Justice of the European Union,” p. 158. Moreover, as Spielmann has observed, before the advent of the Charter, when the CJEU dealt with fundamental rights issues – usually in the context of free movement law – it tended to leave much to the national court (Spielmann, “Human Rights Case Law”). This hesitation arguably made those judgments less interesting to the Strasbourg court. Compare, for instance, the Judgment in Akzo Nobel, C-550/07 P, EU:C:2010:512 with the opinion of the Advocate General Kokott in that case (EU:C:2010:229). Spielmann, “The Judicial Dialogue,” p. 11. ECtHR, Judgment in Tyrer v. UK, Application No. 5856/72, para. 31. See also ECtHR, Judgment (Preliminary Objection) in Loizidou v. Turkey, Application No. 15318/89, paras. 71–73.

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also to retain its legitimacy in the eyes of national constitutional courts.73 It must be added here that, as the cases dealing with the Dublin Regulation and the European Arrest Warrant have demonstrated,74 the CJEU’s concern for fundamental rights is somewhat attenuated by what the Court understands to be its primary mission: ensuring the uniformity, primacy, and effectiveness of Union law in general, and upholding the system of mutual recognition (in turn based on mutual trust!) in particular.75 Although the ECtHR shows a remarkable degree of deference to the demands of European Union law, these cases illustrate why full compliance with the Convention may represent a challenge to the CJEU. That said, there are many examples of the Luxembourg court adapting its case law in view of a decision of the Strasbourg court, and vice versa. The most radical example is Spain v. UK, where the CJEU sanctioned UK legislation that departed from European Union primary law because said legislation was adopted to comply with the ECtHR’s judgment in Matthews v. UK.76 Similarly, in Roquette Frères,77 in a reaction to the ECtHR’s decision on the scope of Article 8 ECHR in Niemietz v. Germany,78 the CJEU altered its definition of the “home” as set out in Hoechst79 so as to encompass not just private but also business premises. In N.S., the Luxembourg court introduced an exception to the principle of mutual trust underpinning the Dublin Regulation in response to M.S.S. v. Belgium and Greece. In the latter decision, the Strasbourg court had found that Belgium had infringed Article 3 ECHR by sending the applicant, an asylum seeker, to Greece, and thus exposing him to the risks linked to the systemic deficiencies in the asylum procedures of that member state and to the detention and appalling living conditions there, in breach of that provision. In N.S., the CJEU held that 73

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See, e.g., the Order of 15 December 2015 of the German Bundesverfassungsgericht, Case 2 BvR 2735/14 (“European Arrest Warrant II”), See T. Reinbacher and M. Wendel, “The Bundesverfassungsgericht’s European Arrest Warrant II Decision,” Maastricht Journal of European and Comparative Law 23 (2016), 702–713. See in particular CJEU, Judgment in N.S., C-411/10 and C-493/10, EU:C:2011:865; Melloni, para. 60. See further T. Van den Sanden, “Case Note Joined Cases C-411/10 & C-493/10, N.S. v. Sec’y of State for the Home Dep’t,” Columbia Journal of European Law 19 (2013), 143–174. CJEU, Judgment in Spain v. UK, C-145/04, EU:C:2006:543, paras. 60, 90 and 95; Matthews v. UK. CJEU, Judgment in Roquette Frères, C-94/00, EU:C:2002:603, para. 29. ECtHR, Judgment in Niemietz v. Germany, Application No. 13710/88. CJEU, Judgment in Hoechst, 46/87 and 227/88, EU:C:1989:337.

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a member state must not transfer an asylum seeker to the “responsible Member State” within the meaning of the Dublin Regulation “where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.”80 This formulation suggested that the mutual trust principle, so central to the Dublin system, would only temporarily cease to apply where there were generalized, serious, and widespread problems with the asylum system in a member state. However, in Aranyosi, which did not concern the transfer of an asylum seeker under the Dublin system but the surrender of a detainee to another member state following a European Arrest Warrant, the CJEU slightly but fundamentally reformulated the exception, arguably to bring it more in line with the decisions in M.S.S. v. Belgium and Greece and Tarakhel,81 which laid down a criterion of “individual risk” rather than “systemic risk.” According to Aranyosi,82 deficiencies need not necessarily be systemic or generalized; what is most important is that there is a “real risk of inhuman or degrading treatment by virtue of the general conditions of detentions” and,83 if so, that the national court makes “a specific and precise [assessment] of whether there are substantial grounds to believe that the individual concerned will be exposed to that risk.”84 Despite the strong language used in Opinion 2/13, about the importance of protecting the principle of mutual trust against the detrimental impact of accession to the Convention (in the form envisaged by the Draft Agreement),85 both judgments show that the CJEU has been willing to nuance, and even compromise, one of the core principles of European Union law to meet the substantive demands posed by the Convention.86

80 81 82 83 84 85 86

N.S., para. 106 (emphasis added). ECtHR, Judgment in Tarakhel v. Switzerland, Application No. 29217/12, paras. 102–104. Aranyosi, paras. 88 and 91–94. Ibid., para. 88. Ibid., para. 91. Opinion 2/13, EU:C:2014:2454, paras. 191–194. See further K. Lenaerts, “La vie après l’avis: Exploring the Principle of Mutual (Yet Not Blind) Trust,” CMLRev 54 (2017), 805–840; F. Korenica and D. Doli, “No More Unconditional ‘Mutual Trust’ between the Member States: An Analysis of the Landmark Decision of the CJEU in Aranyosi and Caldararu,” European Human Rights Law Review (2016), 542–555.

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In turn, the ECtHR has borrowed from the CJEU on several occasions. For instance, in Stec and Others v. United Kingdom, it effectively followed a CJEU decision in finding the difference in national pensionable age between men and women to pursue a legitimate aim and to be reasonably and objectively justified. The ECtHR explicitly mentioned that “particular regard should be had to the strong persuasive value of the ECJ’s finding on this point.”87 In Scoppola v. Italy (No. 2), the Strasbourg court invoked Article 47 of the European Union Charter to revise its case law on Article 7 ECHR and cited the CJEU’s Berlusconi judgment to prove that a consensus had arisen that the retroactivity of the more lenient penalty was a fundamental principle of criminal law. The mutual influence between the two courts is even clearer when the ECtHR deals with European Union law and thereby contributes directly to its development. A good example of this is the long line of cases in which the Strasbourg court is asked to review a national court’s failure to make a reference for a preliminary ruling in the light of Article 6 ECHR.88 Although such a ground for review might raise concern with the CJEU (because the ECtHR is not concerned with ensuring the primacy and uniformity of European Union law but only with safeguarding fundamental rights) the Strasbourg court has diligently examined the domestic court’s refusal to refer in the light of the CJEU’s CILFIT judgment.89 It has consistently held that Article 6(1) ECHR may be infringed due to the arbitrary refusal of a request of a party in the national proceedings asking the domestic court to make a reference to the CJEU. In Dhahbi v. Italy and Schipani and Others v. Italy,90 the ECtHR has found a violation of that provision for the first time because the Italian Court of Cassation had refused to make a reference without stating the reasons for its refusal. This ECtHR case law implicitly reinforces the CJEU’s jurisprudence on Article 267 TFEU. In yet other cases, the ECtHR explicitly reinforces European Union law. For instance, the Strasbourg court has held on several occasions that the cooperation between the national courts of European Union member states, on the one hand, and the CJEU, on the other, is of great importance 87

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ECtHR, Judgment in Stec and Others v. UK, Application Nos. 65731/01 and 65900/01, para. 58. See C. Lacchi, “The ECrtHR’s Interference in the Dialogue between National Courts and the Court of Justice of the EU: Implications for the Preliminary Reference Procedure,” Review of European Administrative Law 8 (2015), 95–125. CJEU, Judgment in CILFIT, 77/83, EU:C:1984:91. Dhahbi v. Italy, paras. 31–34 and Schipani and Others v. Italy, paras. 69–73.

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for the protection of fundamental rights.91 By both implicitly and explicitly reinforcing European Union law, the ECtHR de facto enforces the European Union law principle of sincere cooperation through the Convention. Similarly, in its judgment in Avotiņš v. Latvia – the ECtHR’s reaction to Opinion 2/13, discussed previously – Strasbourg held that “where the courts of a State which is both a Contracting Party to the Convention and a Member State of the European Union are called upon to apply a mutual recognition mechanism established by EU law, they must give full effect to that mechanism where the protection of Convention rights cannot be considered manifestly deficient.”92 This friendly formulation, by which the ECtHR acknowledges the importance of the European Union law principle of mutual trust and enforces it, as mediated by the Convention, may be viewed as an olive branch to the Luxembourg court.93 The practice of the ECtHR to reinforce European Union law using the toolkit of the Convention shows that the fears expressed by the CJEU in Opinion 2/13 might indeed be overstated. Finally, the case law on the judicial review of UN sanctions provides perhaps the best example of cross-fertilization in the true sense of the word. In the Kadi (I and II) and Nada v. Switzerland cases, the two courts “drew from each other’s example, and simultaneously pushed each other to adopt even more expansive human rights approaches.”94 In Kadi, the CJEU famously held that international law did not bar it from reviewing the compatibility of an European Union regulation that implemented a UN Security Council resolution laying down sanctions with European Union fundamental rights (the review was not limited to jus cogens, as the General Court had held).95 In Nada v. Switzerland, the ECtHR explicitly relied on that passage from Kadi to hold that UN sanctions could not ride roughshod over the guarantees offered by the Convention.96 Moreover, it added that the contracting parties have several positive obligations, 91 92 93

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See, e.g., Michaud v. France, paras. 110–111. Avotiņš v. Latvia, para. 116. More hesitant, see Gragl, “An Olive Branch from Strasbourg,” p. 565 (awarding less importance to the CJEU’s judgment in Aranyosi and underlining that Strasbourg requires member states to play a more active role in examining compliance with fundamental rights than Luxembourg does when it asks domestic courts automatically to recognize or enforce decisions originating in another member state). Fabrinni and Larik, “The Past, Present and Future,” pp. 175–176. CJEU, Kadi, paras. 285, 288, 306–308, and 326. Compare with CFI, Judgment in Kadi, T-315/01, EU:T:2005:332, paras. 226–231. Interestingly, even in Kadi, the CJEU already relied on Strasbourg case law. Nada v. Switzerland, para. 212.

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notably to try and delist individuals who have been cleared in domestic terrorism-related investigations or to offer them assistance in requesting an exemption for health reasons from the UN Sanctions Committee.97 In turn, in Kadi II, the CJEU, ignoring warnings from the advocate general to attenuate its rash view on the relationship between the UN Charter and human rights,98 doubled down on its first judgment by deciding that unless they are willing or able to fully disclose all evidence against them, the European Union institutions must delist individuals (“disclose or delist”).99 This example of cross-fertilization between both courts – along with others100 – demonstrates that “the influence the one exerts on the other is mutual and real.”101

Beyond Comity? The Normative Case for Judicial Dialogue Is it possible to identify a legal duty, however weak, for both courts to continue their dialogue? On the European Union side, the Declaration on Article 6(2) TEU annexed to the Treaty of Lisbon is a small step in that direction.102 In the terse wording of the Declaration, the Intergovernmental Conference “notes the existence of a regular dialogue between the Court of Justice of the European Union and the European Court of Human Rights” and concludes by observing that “such dialogue could be reinforced when the Union accedes to that Convention.” According to 97 98 99 100

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Ibid., paras. 187–196. Opinion of Advocate General Bot in Kadi II. Kadi II, paras. 111 and 123. Another earlier illustration is the ECtHR’s reliance on Article 9 of the European Union Charter as proof of consensus that the right to marry in Article 12 of the Convention must be construed to give transsexuals the right to marry a person of the sex to which they previously belonged (in Goodwin v. UK, para. 100). The CJEU later relied on that judgment in holding that national legislation preventing transsexuals from fulfilling the marriage requirement that must be met for one of them to be able to benefit from a survivor’s pension – which forms part of the pay of one of them – violated the right to equal pay for male and female workers enshrined in what is now Article 157 TFEU (Judgment in K.B., C-117/01, EU:C:2004:7, paras. 33 and 36). S. Iglesias Sánchez called this a “boomerang effect” (“The Court and the Charter: The Impact of the Entry Into Force of the Lisbon Treaty on the ECJ’s Approach to Fundamental Rights,” CMLRev 49 [2012], 1565, 1570), but it might be viewed as cross-fertilization. As a CJEU judge, writing extrajudicially, put it: see C. Timmermans, “The Relationship between the European Court of Justice and the European Court of Human Rights,” in A. Arnull, C. Barnard, M. Dougan, and E. Spaventa (eds.), A Constitutional Order of States: Essays in Honour of Alan Dashwood (Oxford: Hart Publishing, 2011), pp. 151–160 [153]. OJ (2016) C 202/337.

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Douglas-Scott, this puts the CJEU and the ECtHR under a political obligation to continue their dialogue and even intensify it.103 That, however, leaves unanswered the question whether a legal obligation to the same effect exists. It might seem that the CJEU must, based on the text of the Charter, engage with ECtHR case law when applying the Charter; arguing for the existence of an unwritten legal obligation to engage in a dialogue would not add anything to the legal obligation already spelled out in Article 52 of the Charter. However, cases like N.S., as well as cases emphasizing the European Union’s autonomy, demonstrate that the CJEU doesn’t always wholeheartedly follow the case law of the Strasbourg Court. Conversely, the question remains open as to a legal duty for the ECtHR to cooperate with the CJEU. Judicial dialogue is usually described as a form of judicial comity, a label that covers a variety of cooperative practices between judges (usually) belonging to different legal systems.104 Scholars rely on the concepts of comity and dialogue to give a descriptive account of how two courts endeavor to avoid conflict in a situation where it is unsettled which of both has ultimate authority. That is notably the case (1) in the relationship between national constitutional courts and the CJEU, both of whom claim to have the final say over the validity of European Union law;105 (2) in horizontal conflicts of law situations106 in which

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Douglas-Scott, “The Court of Justice of the European Union,” p. 160. The Joint Communication from Presidents Costa and Skouris of 24 January 2011 (http://curia.europa .eu/jcms/upload/docs/application/pdf/2011–02/cedh_cjue_english.pdf) also mentions that both courts hold regular meetings and will continue their dialogue with respect to the issues raised by accession. E. D’Alterio, “From Judicial Comity to Legal Comity: A Judicial Solution to Global Disorder?,” International Journal of Constitutional Law 9 (2011) 2, 394. For a broader conception of dialogue in Luxembourg and Strasbourg as a legitimizing nexus not only between courts but also between courts and civil society, and courts and legislatures, see B. Petkova, “Three Levels of Dialogue in Precedent Formation at the CJEU and ECtHR,” in K. Dzehtsiarou, T. Konstantinides, T. Lock, and N. O’Meara (eds.), Human Rights Law in Europe: The Influence, Overlaps and Contradictions of the EU and ECHR (London: Routledge, 2014), 73–91. M. Claes, “The Validity and Primacy of EU Law and the ‘Cooperative Relationship’ between National Constitutional Courts and the Court of Justice of the European Union,” Maastricht Journal of European and Comparative Law 23 (2016), 151. See, e.g., A. Briggs, “The Principle of Comity in Private International Law,” Collected Courses of the Hague Academy of International Law (Leiden, The Netherlands and Boston: Brill, 2012); J. R. Paul, “The Transformation of International Comity,” Law and Contemporary Problems 71 (2008), 19–38.

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two courts have a plausible claim to jurisdiction; or (3) between the ECtHR and the CJEU.107 It has become a trope today to label such situations as instances of “legal pluralism” to make the point that positive law cannot resolve these conflicts and is unable to create harmony between legal systems.108 Judicial comity, and judicial dialogue in particular, is heralded as the alternative: It is not a matter of legal rules but of de facto courtesy and mutual respect between courts that do not stand in hierarchical relationship to each other. While it may not always succeed, its function is to prevent and mediate the conflict to which pluralism is prone to give rise and promote harmonization and even integration.109 Judges use different techniques to express comity. Judicial dialogue typically involves the referencing and mutual consideration of each other’s decisions as persuasive or even quasi-binding authority with the aim of “harmonizing judicial solutions.”110 Yet, even the brinkmanship of an explicit warning shot addressed at another court that then responds by accommodating the concerns of the first – while perhaps raising a few of its own – may qualify as such. Another technique is giving “full faith and credit” to decisions of “foreign” courts. Such recognition promotes integration by allowing the laws of two legal systems to apply simultaneously in the same jurisdiction, with the effect that rights acquired within one legal system retain their legal force in the other.111 A last instance of judicial comity worth mentioning here involves deferring to the jurisdiction of another court, for instance because it is better placed to solve the dispute (forum non conveniens) or in the interest of international cooperation and regional integration, as the ECtHR does by applying its Bosphorus presumption or the German Bundesverfassungsgericht through its Solange doctrine.112 In the context of European Union–ECHR relations, there is a case to be made that these cooperative practices go beyond mere comity. As Eeckhout has argued, the national, European Union, and ECHR systems

107 108 109

110 111 112

Douglas-Scott, “The Court of Justice of the European Union,” p. 160. Eeckhout, “Human Rights and the Autonomy of EU Law,” p. 175. E. D’Alterio, “From Judicial Comity to Legal Comity,” International Journal of Constitutional Law 9 (2011), 394–424 [398, 401, 402]. Ibid., 402. Ibid., 400–401. See also the references mentioned in note 106. Ibid., 402.

     /



must be conceived as integrated rather than pluralist,113 which means that conflicts between the supreme adjudicators of each system take place within the law. Even if the CJEU and the ECtHR may occasionally differ on the interpretation or application of the Convention, this does not warrant the conclusion that there is a deep conflict of ultimate judicial authority that is not subject to legal argumentation.114 On the one hand, there are legal rules and principles binding on all the judicial actors involved that determine the limits of their respective jurisdiction.115 When they disagree about the interpretation or application of these rules, such conflicts can be solved through non-adjudicative legal means, such as constitutional amendment.116 On the other hand, where courts share jurisdiction – as they are likely to do because the integration of the national and ECHR system into the European Union system means that the three systems share norms – conceiving of these three legal systems as part of an integrated whole imposes, as a matter of obligation, a true judicial dialogue through which courts may jointly craft interpretations that fit the various legal systems involved.117Just like the integration of European Union law into national law requires regular cooperation between national courts and the CJEU based on the principle of sincere cooperation,118 the integration of the Convention

113

114 115 116 117 118

Eeckhout, “Human Rights and the Autonomy of EU Law,” 177 ff. To summarize Eeckhout’s point: post-Lisbon, both the Convention and fundamental rights resulting from the constitutional traditions common to the member states are fully integrated into European Union constitutional law. For its part, the European Union Charter does not diverge from the Convention but carefully regulates its relationship to it in conformity with Article 53 ECHR, and there even is some integration of the European Union Charter into ECtHR case law despite the absence of legal links. Conversely, all European Union human rights law is integrated into national law through the principles of primacy and direct effect. The picture that emerges is one in which the national and ECHR fundamental rights systems are integrated into the European Union system, which remains tributary to the laws of the member states and to the Convention, both of which have their own judicial system with ultimate interpretive authority. Ibid., 188. Ibid., 180. Ibid., 187. Ibid. See the View of Advocate General Mazák in Melki, C-188/10 and C-189/10, EU: C:2010:319, point 64 (observing that the preliminary ruling procedure is vital to ensure the uniform and coherent application of European Union law and requires the CJEU and national courts to proceed “in a spirit of cooperation and on the basis of mutual trust and judicial dialogue”). See also K. Lenaerts, “Interlocking Legal Orders in the European Union and Comparative Law,” International and Comparative Law Quarterly



 

into European Union law makes dialogue between the CJEU and the ECtHR mandatory as a matter of law. As alluded to before, that argument might seem somewhat overwrought in so far as the CJEU is concerned. Does it not suffice that the Treaties explicitly integrate the Convention into the European Union legal order, which means that the European Union institutions are bound by ECtHR jurisprudence as a matter of European Union law? This is true to some extent. Although formally the Treaties refer only to the Convention, the explanations relating to Article 52(3) of the Charter clarify that the “meaning and scope” of the rights guaranteed by the Convention must be determined by reference to both the text of the Convention and the case law of the ECtHR.119 As discussed, this provision requires the Luxembourg court to follow the case law of the Strasbourg Court to ensure that corresponding Charter rights afford the same level of protection, including authorized limitations.120 That being said, neither Article 6 TEU nor Articles 52 and 53 of the Charter clearly spell out a duty for the Luxembourg court to cooperate with its Strasbourg-based counterpart and to strive for harmony and coherence between both systems. The procedural duty to cooperate, for instance by engaging in a constructive dialogue, goes beyond the simple obligation to comply which, as Opinion 2/13 highlights, is attenuated inter alia by the autonomy of European Union law.121 When it comes to the ECtHR, that court’s practice of deferring to the CJEU on matters involving European Union law must arguably be viewed, not as mere comity but partly as a straightforward consequence of Strasbourg’s lack of jurisdiction over European Union law, and partly

119

120 121

52 (2013), 873–906 [879 and 882–883], who explains that the dialogue conducted in the context of the preliminary ruling procedure allows the CJEU to find solutions that do not unnecessarily upset national sensitivities and thus make the national legal orders have confidence in the European Union legal order. While European Union law technically has primacy, it relies on the national courts for its application. To ensure the effective application of European Union law in the member states, the Court “takes the pulse” of the national legal systems and, through the comparative method, develops a compromise solution that is sufficiently common to the member states. Explanations relating to Article 52(3) of the Charter of Fundamental Rights, OJ (2007) C 303/33. Ibid. See also explanations relating to Article 52(3) of the Charter of Fundamental Rights, OJ (2007) C 303/33, which mention the importance of “the autonomy of Union law and that of the [CJEU].”

     /



as an obligation to avoid conflict through dialogue. The ECtHR has never held a European Union member state responsible for European Union acts stricto sensu. It accomplishes this inter alia by narrowly defining state action – the jurisdictional nexus required for the ECtHR to examine an European Union member state’s Convention responsibility for acts and omissions required by European Union law, by not lightly presuming that member states transferred powers to the European Union with the intent to circumvent their obligations under the Convention, and by setting a high bar for rebutting the presumption of equivalent protection.122 Rather than as a discretionary decision of the ECtHR not to exercise its jurisdiction over cases involving European Union law – comity – this jurisprudence may have to be conceived as evidence that, on a proper construction of it, the Court’s jurisdiction simply does not extend that far. After all, as Reyngaert has argued, the ECtHR’s jurisdiction ought to be interpreted in keeping with the generally accepted international law principle that member states cannot generally be held liable for the acts of international organizations by virtue of their membership of that international organization alone.123 This would amount to a denial of the international legal personality of said international organization and make its functioning impossible. In other words, the legitimate and weighty interest in securing the proper functioning of international organizations, to which the ECtHR referred in Bosphorus,124 is a principle of international law that imposes legal obligations. Strasbourg’s deferential attitude toward European Union law is not purely a matter of comity but is grounded in law. Further support for the claim that the judicial dialogue between the ECtHR and the CJEU is a matter of obligation may arguably be found in the principle of systemic integration expressed by Article 31(3)(c) of the Vienna Convention on the Law of Treaties. That provision, which is generally considered to be part of customary international law,125 requires the interpreter of a treaty to consider “any relevant rules of international law applicable in relations between the parties.” It conveys the objective of system integration (or “systemic harmonization,” as the 122

123 124 125

See Reyngaert, “The European Court of Human Rights’ Approach to the Responsibility of Member States,” p. 997 et passim. Ibid. Bosphorus v. Ireland, paras. 150–157. O. Dörr, “Article 31: General Rule of Interpretation,” in O. Dörr and K. Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (Vienna: Springer, 2012), p. 521, point 6.



 

ECtHR has put it in Al-Dulumi126), according to which all treaties, whatever their subject matter, are a creation of the international legal system and their operation is predicated on that fact.127 This gives rise to a strong presumption against normative conflict128 and an unnecessary loss of coherence (i.e., fragmentation) of the international legal order.129 Thus, parties to a treaty are presumed not to have intended to act inconsistently with generally recognized principles of international law or with previous treaty obligations toward third states.130 This may be the legal scaffolding that supports an obligation for the ECtHR not to presume too lightly that the European Union Treaties conflict with the Convention. At the very least, Article 31(3)(c) VCLT puts the CJEU and the ECtHR under a weak procedural obligation to engage with the ECHR and European Union law, respectively, and to strive to “avoid conflict in the interpretation of their own constitutional treaties, so as not to undermine fundamentally the system on which they are founded.”131 Ultimately, the most intuitive argument for genuine mutual cooperation between the CJEU and the ECtHR does not involve abstract notions of overlapping jurisdiction or systemic coherence but derives from the historical links and shared mission of both institutions. The Council of Europe and the European Union were established to serve the same general aim of securing peace on a war-torn continent. While it is often assumed that the latter focused on economic goals and deliberately outsourced human rights protection to the former, De Búrca has shown that the 1950s framers saw the omission of human rights from the 1957 Treaties as a “pragmatic and strategic interim step,” not as a “deliberate decision to consign matters of human rights in the 126

127

128

129

130

131

ECtHR, Judgment in Al-Dulumi and Montana Management v. Switzerland, Application No. 5809/08, para. 140. “Fragmentation of International Law: Report of the Study Group of the International Law Commission,” A/CN.4/L.702, at 13–14. M. Koskkeniemi (ed.), “Fragmentation of International Law: Final Report of the Study Group of the International Law Commission,” A/CN.4/L.682, point 37. K. Ziegler, “Beyond Pluralism and Autonomy: Systemic Harmonization as a Paradigm for the Interaction of EU Law and International Law,” Yearbook of European Law 35 (2016), 667–711 [685]. ICJ, Rights of Passage over Indian Territory (Preliminary Objections) (Portugal v. India), ICJ Reports (1957), p. 142. See C. McLachlan, “The Principle of Systemic Integration and Article 31(3)(c) of the Vienna Convention,” International and Comparative Law Quarterly 54 (2008), 279–320 [311]. K. Ziegler, “Autonomy: From Myth to Reality – or Hubris on a Tightrope? EU Law, Human Rights and International Law,” University of Leicester School of Law Research Paper No. 15–25, http://papers.ssrn.com, 55–56.

     /



Community henceforth to the Council of Europe.”132 Indeed, they specifically envisaged a robust human rights regime and a closely entwined constitutional relationship between the Communities and the ECHR.133 In other words, these sister organizations, which today share the European flag and anthem, were meant jointly to create a sort of European public order that would prevent member states from backsliding into fascism or totalitarianism. Fidelity to this idea ultimately provides the most basic and compelling reason for avoiding unproductive judicial skirmishes and encouraging good faith cooperation between the Luxembourg and Strasbourg court. 132

133

G. De Búrca, “The Road Not Taken: The European Union as a Global Human Rights Actor,” American Journal of International Law 105 (2011), 649–693 [692]. Ibid., 673.

PART III Legitimacy, Effectiveness, and Judicial Methods of Decision-Making

10 Transnational Judicial Interactions and the Diplomatization of Judicial Decision-Making          u¨  -     Introduction The need for cooperation among courts is not specific to areas reaching beyond the national level. There are some specific circumstances, however, that make cooperation at once more often necessary and more difficult where international or supranational courts (in short: transnational courts), too, come into play: A typically more delicate nature of mutual legal obligations must be managed. A greater knowledge and sensitivity gap has to be bridged. And enormous differences in the legal cultures, particularly in the traditions of legal interpretation and in the perception of the proper role of judges, have to be accommodated. In the following presentation of these problems, of the various types of judicial interaction addressing them, and of the resulting diplomatization of law, I will focus on interactions between European national courts – apex courts in the first place – on the one hand, and the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR), on the other.

Problems of Judicial Cooperation in a Transnational Context Delicacy of Relationship between National and Transnational Courts The particular delicacy of the relationship between transnational and national legal orders and between the courts that must administer them is due to the – not always, but in most instances – less unequivocally hierarchical nature of the relationship between these legal orders and, accordingly, between the respective courts. Contested hierarchies and ambiguities with respect to hierarchy may, of course, exist within national judicial systems, too. The delicate relationship between constitutional courts and regular courts, particularly in countries where, as in most of Middle and Eastern Europe, a 



 

constitutional court is endowed with the competence to review the constitutionality of legislation but has no power to review and annul decisions of the regular courts, is a case in point. On the national level, however, where in the course of history most intra-judiciary disputes over competence and precedence have been settled, delicacies resulting from unresolved disputes of this kind are less typical than with respect to the relationship between national and transnational courts.1 Transnational law, of course, claims precedence over national law. Accordingly, the transnational courts set up to administer transnational law claim that they have the last word concerning its interpretation. That claim may, however, meet reservations on the part of national legal orders and the courts administering them – reservations that refer to the limitations in scope of the treaties concluded, and of the powers conferred upon transnational courts, to national constitutional requirements that these limitations be respected, and to corresponding powers of national courts under the respective national constitutions to ensure such respect vis-à-vis potentially overreaching transnational courts. In the European Union context, for instance, the German Federal Constitutional Court (FCC; in German: Bundesverfassungsgericht, BVerfG) as well as many other national apex courts have indicated that their obedience to secondary European Union law and ECJ case law, including the ECJ´s interpretation of the foundational treaties – the Basic Laws of the Union – has its limits.2 In Germany, respect will be refused to structurally important European Union acts that are obviously ultra vires, and to European Union acts infringing the national constitutional identity, which is, in Germany, the same as the contents of the German constitution’s eternity clause (Art. 79 sec. 3 of the Basic Law). 1

2

Cf. K. J. Alter, L. R. Helfer, and M. R. Madsen, “How Context Shapes the Authority of International Courts,” iCourts Working Paper Series 18 (2015), 8 with further references (available at Social Science Research Network, SSRN). BVerfG (Second Senate), Order of 14 January 2014 – 2 BvE 13/13 et al. –, BVerfGE 134, 366 (381 ff.), para. 21 ff. (OMT case, preliminary question, available in English); BVerfG (Second Senate), Order of 15 December 2015 – 2 BvR 2735/14 –, BVerfGE 140, 317 (336 ff.), para. 41 f. (Identity review in a case of extradition to Italy); BVerfG (Second Senate), Judgment of 21 June 2016 – 2 BvR 2728/13 et al. –, para. 115, 120 f. (OMT case, final judgment), each with further references. For extensive references to relevant Danish, Estonian, French, Irish, Italian, Latvian, Polish, Spanish, Czech, and UK case law, see BVerfG, Order of 15 December 2015, 339 ff., para. 47. BVerfG decisions from 1998 on are available on the court´s websites (www.bverfg.de). Insofar as the decisions cited in this note have, as yet, only been published in German, a press release in English is available.

  



I will not go into a normative discussion of such reservations here. I just mention them as a fact that increases the need for cooperation to prevent disruptive clashes. To increase this need, and thereby to increase the likelihood that the relationship between national and transnational courts will be mutually cooperative, is in fact the primary function of such reservations.3

Gaps in Knowledge and Sensitivity As to the knowledge gap, I am not insinuating that transnational courts are in some general sense more ignorant than the national ones. But there is one respect in which they are by their nature – composition, distance, limits of access to information due to language differences – disadvantaged: They necessarily have less detailed and experienced knowledge of the affected national legal systems and of the effects their decisions will have on them. What a transnational institution gains in pluralism of nationalities by virtue of being transnational, it is bound to lose in some other types of pluralism, including pluralism of knowledge sets with respect to each of the nations involved. This holds for courts, too. The severity of this problem depends in part on available resources. ECtHR judges, for instance, normally have to put up with getting only the applicant’s and the respondent government’s submissions translated into one of the Court’s official languages of which every judge is supposed to have command. As for the rest of the file, including the contested domestic judicial decisions, and with respect to relevant domestic legal provisions, domestic case law, domestic academic discussion of the relevant legal problem, and so forth, all the judges who are not familiar with the respective language have to rely on the exposition of the facts of the case, usually prepared by the registry, in the draft decision – or, in the case of Grand Chamber proceedings, in a preceding report – submitted by the reporting judge.4 More resources for translation would give more judges direct access to the relevant material. The size of the knowledge and sensitivity gap may also depend on the qualifications and professional backgrounds of people appointed to serve

3

4

G. Lübbe -Wolff, “Who Has the Last Word? National and Transnational Courts – Conflict and Cooperation,” Yearbook of European Law 30 (2011), 86–99. Information from interviews with ECtHR judges and former judges.

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 

on a transnational court. But even if judges and other court personnel are most excellently qualified and have most excellent translation and other information services at their disposal, there will always be a gap with respect to pluralism and corresponding breadth of knowledge and experience concerning the national legal systems. By contrast, knowledge and sensitivity with respect to transnational (supranational or international) law and related factual matters and concerns is likely to be less developed in national courts than in the transnational ones. Even in Austria, for instance, where the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR) has constitutional rank and is not, like in Germany, in part overshadowed by an existing exclusively national catalogue of fundamental rights, and where a most excellent leading expert on and commentator of the European Convention on Human Rights like Christoph Grabenwarter sits on the Constitutional Court, no court is specialized in interpreting Convention rights as is the ECtHR. Most judges have their core competencies elsewhere. Transporting relevant knowledge, including an awareness of the importance of substantive subsidiarity of transnational human rights protection that must follow from a knowledge gap which can by no means be reduced to zero (as well as from other reasons),5 is an important function of cooperation among national and transnational courts.

Diversity of Legal Cultures Obviously, differences in legal cultures, too, create special needs for cooperation. In a “common judicial space” encompassing very different legal cultures, including a variety of national attitudes with respect to methods of interpretation and the proper role of judges, these differences must be understood and processed in an attentive way. It goes without saying that this creates a particular demand for communication, mutual attention, and mutual readiness to look at things with eyes other than one´s own.

5

G. Lübbe-Wolff, “How Can the European Court of Human Rights Reinforce the Role of National Courts in the Convention System,” Human Rights Law Journal 32 (2012), 11–15 [14 f.]; online version in ECtHR, “Dialogue between Judges,” 2012, pp. 11–16, www.echr.coe.int/Documents/Dialogue_2012_ENG.pdf.

  



Types of Cooperation Extra-Case-Law Cooperation What eventually counts is whether cooperation between national and transnational courts becomes effective in their respective case laws. To that end, however, communication outside (extra) of judicial proceedings may be helpful. Many of the judges from both types of courts – most of all, due to their representative role, usually the presidents – publish articles, sometimes even books, and many of these publications explain the respective courts’ organization and procedure, case law, views on inter-court relationships, and other matters relevant to inter-judicial cooperation not only to a broader legal audience but also to their colleagues from related courts, with a view to fostering mutual understanding and constructive collaboration. Communications merely in writing would, however, not necessarily hit their targets. In this respect, as well as in some others, face-to-face communication does much better.6 It is not just touristic interest that has boosted the number of meetings among members of national and transnational judiciaries in recent decades. ECtHR and ECJ are heavily engaged in bilateral and smaller and larger multilateral “dialogue between judges” meetings.7 Apex courts of European Union member states and of states parties to the European Convention of Human Rights, or the presidents of such courts, participate in networks like the Conference of European Constitutional Courts8 as well as the Network of the Presidents of the Supreme Judicial

6

7

8

Many of the relevant articles written by judges, probably the majority of them, have in fact been produced as speeches for meetings with – at least inter alia – judges from other courts. For the less common case of an entire book on the subject written by an acting constitutional court judge (Constitutional Court of Romania) in cooperation with the “chief magistrate assistant” of the court, see T. Toader and M. Safta, The Dialogue of Constitutional Judges (Frankfurt: Peter Lang, 2016). “Dialogue between Judges” is the title of annual conferences held by the ECtHR, but the designation fits many other meetings held by, or with participation of, European transnational courts. The annual ECtHR “dialogues” are always coupled with the solemn opening of the legal year. Both events help each other attract members of the judiciary from all over Europe, and the ensemble is quite an impressing event – symbolically as well as due to the informative and diplomatic qualities of the dialogues (on diplomatic qualities see note 41), which certainly contributes to integrating the larger European judicial community. www.confeuconstco.org/en/common/home.html.

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Courts of the European Union,9 in regular conferences of delegations or chief justices in various regional combinations,10 in special meetings with the European courts, and in (other) meetings with other national courts where European matters are discussed. Besides, national and transnational European judges cooperate in academies and law institutes, and they meet at academic conferences and on various kinds of solemn occasions, such as openings of the legal year and court anniversaries. Transnational cooperation also takes place in the frameworks of the European Commission for Democracy through Law (Venice Commission)11 and the Consultative Council of European Judges,12 and through advisory panels involved in the appointment of ECJ and ECtHR judges.13 Careful analysis of the websites of national constitutional courts and supreme courts would reveal much of what is going on in terms of communication and cooperation. For comparative purposes, however, such an analysis would not produce reliable results. This is because courts differ not only in the extensiveness of their transnational relations but also in their communication strategies with respect to them.

9 10

11

12 13

http://network-presidents.eu/. The Conference of the Chairmen of the Supreme Courts of Central and Eastern Europe, www.supremecourt.ge/eng/news/id/624, is just one example. For an overview of transnational activities of some European and American courts and individual members of these courts, and for a marked prevalence of contacts, in some cases, of courts sharing the same language and legal traditions, see E. Mak, Judicial Decision-Making in a Globalised World: A Comparative Analysis of the Changing Practices of Western Highest Courts (Oxford and Portland, OR: Hart Publishing, 2013), pp. 83 ff. For an overview of the Venice Commission’s activities, see www.venice.coe.int/Web Forms/pages/?p=01_activities&lang=EN. For an important example see the Opinion on Amendments to the Act of 25 June 2015 on the Constitutional Tribunal of Poland, adopted by the Venice Commission at its 106th Plenary Session (Venice, 11–12 March 2016), CDL-AD(2016)001-e (available online). www.coe.int/t/dghl/cooperation/ccje/presentation/ccje_en.asp. See Art. 255 TFEU, providing for an advisory panel, composed of seven people chosen from among former members of the Court of Justice and the General Court, members of national supreme courts and lawyers of recognized competence; the panel is to give an opinion on candidates’ suitability to perform the duties of a judge and an advocategeneral of the Court of Justice and the General Court. For the seven-member Advisory Panel of Experts on Candidates for Election as Judge to the European Court of Human Rights, composed of members of the highest national courts and former judges of the ECtHR and other international courts, see Council of Europe, Committee of Ministers, Resolution CM/Res(2010)25, https://search.coe.int/cm/Pages/result_details.aspx?Objec tID=09000016805cdf91.

  



Intra-Case-Law Cooperation On the basis of a very broad concept of “cooperation,” any kind of judicial decision-making within a transnational “common legal space,” be it conforming or conflictive, thoughtful or unconcerned with respect to relations between national and transnational courts, specifically relevant to them or not, can be classified as a form of cooperation simply because it is a contribution to shaping that space. For analytical purposes, such a concept is overbroad. The following remarks will focus on forms of cooperation that courts can and should deploy to meet the functional needs of a transnational “common legal space.” One question that might be raised in this context is whether these needs would be best met if all national courts or national constitutional legislators simply gave up the reservations that make the relationship between transnational and national courts a delicate one – in other words, if they subscribed to a strictly hierarchical conception of the relationship between them, with the (highest) transnational courts on top of the hierarchy. This is an important question, but I will not deal with it here because I have expounded my negative answer elsewhere.14

Decision-Making and Drafting Opinions with a View to Reception by Partner Courts In a “common legal space”, other courts within that space belong to the audience addressed by judicial opinions. This is a truism that usually does not demand much attention in a purely national context. It goes without saying that national courts, when they make decisions and draft their opinions, want them to be understood and accepted by their superior (if any) and subordinate courts as well as by applicants and respondents. As far as the national context is concerned, taking account of the parties’ need for explanation is usually the task that requires more attention. Other courts can be supposed to share the same language and understanding of the relevant law and legal practices. In a transnational context, this supposition no longer holds. Both national and transnational courts need to understand and address the procedural and substantive legal framework in which their partner courts work in order to make themselves understood in their mutual relationship. It is anything but a trivial task to realize all that this requires, and to meet the requirements. If, for instance, the German Constitutional Court 14

Lübbe-Wolff, “Who Has the Last Word?”, pp. 86–99.



 

rejects a constitutional complaint because of non-exhaustion of legal remedies in a case in which the applicant might otherwise have been successful, it is well advised not to make use of the possibility to dismiss inadmissible claims without giving reasons,15 but to explain the – rather tough – German requirements with respect to exhaustion of legal remedies and the reasons why, in its view, they have not been met. The explanation will be the more likely to convince the ECtHR the more it rests on an adequate understanding of relevant ECtHR case law and practices. Not all the relevant practices, however, become easily apparent from the case law. For instance, to understand the extent to which the ECtHR relies on submissions even in procedural matters, rather than on scrutinizing files, it helps to know what is in the ECtHR’s files. Information of this type cannot safely, let alone easily, be retrieved from the case law. Information of this type is a typical subject of exchange when courts meet for informal dialogue. This illustrates how a sensible intracase-law cooperation may depend on extra-case-law communication having paved the way. In the same vein, transnational courts must make and draft their decisions with a view to their reception, and potential problems of that reception, on the national level. Among those who must be addressed as convincingly as possible are the national judiciaries. Transnational courts depend on their cooperation for their case law to become effective. In addition, a transnational court may depend on the cooperation of national courts as filters needed to keep its caseload manageable. It is therefore essential for transnational courts to understand the national legal systems from which their cases originate, and the way in which they will be affected by their decisions. And the reasons why it may be held necessary to interfere must be communicated in a way that is sensitive to national concerns – most of all, but by no means exclusively, those in the country of origin of the particular case. An open, deliberative procedural communication structure is necessary to enable them to perform that most demanding task in a proper way.16

15

16

§ 93d section 1 sentence 2 BVerfGG (Bundesverfassungsgerichtsgesetz, Law on the Federal Constitutional Court). See, e.g., for problems arising if in cases of individual applications to a transnational court, that court does not hear the applicant´s opponent in the previous national proceedings, BVerfG (Second Senate), Order of 14 October 2004 – 2 BvR 1481/04 –, para. 50, BVerfGE 111, 307 (324 f.) (Görgülü case, English version available at www.bverfg.de).

  



Hints by Obiter Dictum Hints by obiter dictum are a common element of interaction between national and transnational courts. Transnational courts give such hints, or even make outright recommendations, to indicate what national courts can or should do to prevent future defeats on the transnational level.17 National courts can and often do use hints by obiter dictum to confer their views on transnational law to a transnational court, and as indications of where their willingness to follow decisions of a transnational court might end. The German FCC´s referral order in the case concerning the European Central Bank’s (ECB’s) Outright Monetary Transactions (OMT) program18 is a prominent example. Hints by obiter dictum at what may be advised to avoid future clashes will not always be welcome to the courts that receive them, but confrontative decisions without previous warning would probably be even less welcome, and potentially more disruptive. Transnationalization of law is therefore a factor promoting the use of obiter dicta. Reprehensible as they may be from other points of view, they are indispensable for cooperative purposes in a transnational context. Special Instruments of In-Case Cooperation Transnational law may offer formalized means of in-case communication between national and transnational courts. Preliminary references, as provided for in Art. 267 TFEU, are an instrument of transnational judicial dialogue and cooperation19 within the national judicial proceedings on a given case. 17

18

19

For examples concerning the implementation of ECtHR decisions see M. Villiger, “From the Point of View of National Judiciaries: The Role of National Courts in the Implementation of the Court’s Judgments,” in ECtHR, “Dialogue between Judges,” 2014, 27–29 [28f.], www.echr.coe.int/Documents/Dialogue_2014_ENG.pdf. BVerfG (Second Senate), Order of 14 January 2014, OMT Case. Statements of a referring court as to its views concerning the European Union law in question (as well as, of course, hints concerning possible limits of allegiance), are obiter dicta because they are not a necessary element of an admissible referral, see Recommendations to National Courts in Relation to the Initiation of Preliminary Ruling Proceedings, 2012/C 338/01, Official Journal C 338 of 6.11.2012, recommendation no. 24. K. Lenaerts (then vice president, now president of the ECJ), “Kooperation und Spannung im Verhältnis von EuGH und nationalen Verfassungsgerichten” (conference talk), Humboldt University, November 24, 2014, www.whi-berlin.eu/tl_files/FCE/Veroeffentlichung %20Lenaerts.pdf (section II.1.); V. Skouris (then president of the ECJ), “Der Dialog des EuGH mit Praxis und Wissenschaft,” Europäische Zeitschrift für Wirtschaftsrecht 26 (2015), 24; V. Skouris, “The Position of the European Court of Justice in the EU Legal Order and Its Relationship with National Constitutional Courts” (conference



 

The German FCC has never made use of that instrument before 2014, when it referred to the ECJ questions concerning the ECB’s OMT program.20 The infrequency of FCC referrals to the ECJ is not an expression of a noncooperative behavior. In the matter of referrals, the FCC cooperates with the ECJ by exercising control over whether regular courts comply with their duty to refer cases to the ECJ. Under German law, the obligation of courts against whose decision there is no judicial remedy to refer open questions of European Union law to the ECJ (Art. 267 sec. 3 TFEU) primarily rests with the ordinary courts of last instance because the FCC, although it is the highest court of the country, is not itself a regular court of last instance. Indefensible non-referrals by regular courts are considered violations of the constitutional right to the legal judge (Art. 100 sec. 1 of the Basic Law), that is, of the right to have one’s case dealt with by the competent judicial organ. When seized with a constitutional complaint in a case that would obviously have been for referral to the ECJ, the FCC will therefore not refer itself but reverse the decision of the court that has failed to refer and remand the case for further proceedings, including the necessary referral. This, too, is a way of cooperating with the ECJ. Where cases reach the FCC after exhaustion of regular judicial remedies, the FCC’s exercise of control over other courts’ duties to refer is an efficiency-maximizing functional equivalent to referrals by the FCC. Preliminary question proceedings can be cooperative not only in that the referring national court asks a legal question and – provided the reference is admissible – gets an answer from the ECJ upon which it is then supposed to base its final decision in the relevant case. As already mentioned, referring national courts can also use them to introduce an element of bottom-up dialogue by stating their views on the proper answer to the referred questions of European Union

20

presentation, Constitutional Court of Slovenia), www.us-rs.si/o-sodiscu/katalog-inf-jav nega-znacaja/contributions/presentation-by-dr-vassilios-skouris-president-of-the-euro pean-court-of-justice/, (section B); Cf. also Recommendations (n. 18), recommendation no. 5. It has been suggested that the cooperative relationship between the EJC and referring national courts might be enhanced by various procedural means such as hearing the referring national court in oral proceedings before the ECJ or appointing an ad hoc ECJ judge from the referring national court in referral cases, see F. Mayer, “Die EZB vor Gericht – nächste Runde,” Europäische Zeitschrift für Wirtschaftsrecht 26(2015), 121–122 [122]. See BVerfG (Second Senate), Order of 14 January 2014, OMT Case.

  



law, and hinting at possible limits of their ability and willingness to adopt possible answers by the ECJ.21 Advisory opinions can also work as an instrument of in-case cooperation. The possibility of soliciting advisory opinions from the ECtHR that was introduced by the 16th Protocol to the Convention,22 called the “Protocol of dialogue” by former ECtHR president Dean Spielman,23 is also an instrument of in-case judicial cooperation. It is provided as a means to resolve a case pending in a national court.24 From the previously mentioned instrument of preliminary questions, it differs in that its use is never mandatory, and in the merely advisory nature of the solicited opinion. The new procedural instrument may make it easier for courts under national political pressure to conform to the Convention because it spares them the necessity to start out on their own with decisions finding acts of their respective national states in violation of the Convention. Instead, they can first request an advisory opinion without taking a clear stance themselves, and later refer to the ECtHR opinion as the basis of their decision on the case at hand.

Diplomatization of Judicial Decision-Making Ping-Pong Games In a transnational context, judicial cooperation often proceeds step by step over a series of decisions. Legal views, sometimes seriously conflicting, are exchanged to and fro in a sort of ping-pong, approximating successively until some viable middle ground is found on which both

21 22

23

24

See II.2.b and BVerfG (Second Senate), Order of 14 January 2014, OMT Case. Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series – No. 214, www.echr.coe.int/Documents/ Protocol_16_ENG.pdf. According to its Article 8.1, the protocol entered into force on August 1, 2018 following ratification by 10 parties to the convention; see https://www .coe.int/en/web/conventions/full-list/-/conventions/treaty/214. Dean Spielman, Opening Speech (Solemn Hearing of the European Court of Human Rights on the Occasion of the Opening of the Judicial Year), in ECtHR, “Dialogue between Judges,” 2014, 31–35 [31], www.echr.coe.int/Documents/Dialogue_2014_ ENG.pdf. See Art. 1 sect. 2 of the 16th Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms: “The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it.”



 

sides can settle. Two examples from FCC interactions with the ECtHR and the ECJ, respectively:

Conflict and Approximation: Preventive Detention In 2004, the FCC had approved of national legislation that retroactively provided for a possible prolongation of so-called preventive detention (a continued detention after a convicted person has served his term of prison in cases in which the person is still considered dangerous) beyond the previous maximum period of 10 years.25 The approval was based on the view that preventive detention was not a criminal sanction or punishment (Strafe) and therefore not subject to the constitutional rule of nulla poene sine lege (Art. 103.2 of the Basic Law), that is, to the rule that criminal sanctions must be determined by law before the act.26 The judgment also referred to the duty of the state to protect victims and potential victims of crimes.27 The ECtHR did not share that view and held that a retroactive imposition or prolongation of security detention was incompatible with the detention rules and the nulla poena sine lege rule of the Convention (Art. 5 para. 1 and Art. 7 para. 1).28 As a consequence, the FCC held in a judgment of May 4, 2011 that the German legislation on so-called preventive detention was unconstitutional – not only in its retroactive elements – because its reach was disproportional and because it insufficiently provided for detention conditions clearly distinguishing preventive detention from the execution of criminal sentences. However, the FCC provided for a delayed effect of that finding, in particular with respect to cases in which “a high risk of the most serious offences of violence or sexual offences can be inferred from specific circumstances in the person or the conduct of the detainee” and the detainee suffers from a mental disorder within the meaning of para.1.1 no. 1 of the “Act on the Therapy and Committal of Mentally Disordered Violent Criminals” (Therapy Placement Act). The court found that such highly dangerous detainees could be kept locked up until a decision was made concerning their detention under that act (which had 25

26 27 28

BVerfG (Second Senate), Judgment of 5 February 2004 – 2 BvR 2029/01 –, BVerfGE 109, 133 (149 ff.). Ibid., p. 167 f. Ibid., p. 186. ECHR, M. v. Germany (Appl. no. 19359/04), Judgment of 17 December 2009 (available online).

  



been passed as a safety net to meet the most urgent security problems resulting from judgments that would entail the release highly dangerous persons from security detention), provided such a decision was made until May 31, 2013.29 The premise was that under the conditions mentioned, continued detention was necessary to fulfill the state´s constitutional duty to protect the rights of potential victims, and that it would be in line with Article 5 § 1 sentence 2 lit e of the Convention, allowing for detention of persons of unsound mind. Regarding the Convention, this judgment, although it went far to satisfy the ECtHR, had a weak point: The order delaying the voiding effect of the judgment allowed to temporarily keep persons in detention although their detention was based on legislation violating the Convention, and for whom, while the conditions for a new detention order under the Therapy Placement Act in conformity with the Convention rule on detention of persons of unsound mind may have been met, no such order had so far been made. In some of its subsequent judgments on follow-up cases, the ECtHR addressed the problem that even where the prerequisites for detainment of person of unsound mind were met, detention was contrary to the convention as long as it was based on the retroactive German legislation concerning preventive detention. But it never addressed this as a problem of the delayed-effect order in the FCC’s judgment of 4 May, 2011. Instead, the ECtHR welcomed that judgment as compliant. An indication of specific steps to be taken by Germany to fulfil its compliance obligation under Art. 46 of the Convention – to put it more bluntly: a statement to the effect that the Convention required that the applicant be immediately released – was held unnecessary because the ECtHR considered that by the judgment of 4 May, 2011, “the Federal Constitutional Court implemented this Court’s findings . . . on German preventive detention in the domestic legal order” and “thereby fully assumed that responsibility.”30

29

30

BVerfG (Second Senate), Judgment of 4 May 2011 – 2 BvR 2365/09 et al. –, BVerfGE 128, 326 (332 f., 404 ff.). Judgment of 24 November 2011, O.H. v. Germany (Appl. no. 4646/08), para. 118. For more follow-up cases see Judgment of 19 January 2012, Kronfeldner v. Germany (Appl. no. 21906/09); Judgment of 19 April 2012, B v. Germany (Appl. no. 61272/09); Judgment of 28 June 2012, S. v. Germany (Appl. no. 3300/10). By the time of the Judgment of 28 November 2013, Glien v. Germany (Appl. no. 7345/12), the danger of a critical “clash of courts” had passed by, anyway, because the delay period set by the FCC judgment of 4 May, 2011 (until 31 May, 2013) was over.



 

What we see here is mutual approximation. After the FCC had largely, although not perfectly, conformed to ECtHR case law, the ECtHR avoided the really serious conflict that would have arisen if it had, in line with the prohibition of retroactive prolongation of criminal sanctions, gone as far as to actually – at a time where more than retrospective damages was at stake – demand that detainees be released whom, according to the FCC judgment, German authorities could not release without violating their constitutional duty to protect potential victims.

Conflict and Approximation: The European Central Bank’s Government Bond Purchase Programs In its judgment referring preliminary questions concerning the ECB’s OMT program to the ECJ,31 the FCC reminded the ECJ that, for reasons of domestic constitutional law, it would have to review the ECJ’s answers for possible structurally relevant ultra vires contents and for possible infractions of German constitutional identity.32 The FCC then confirmed its earlier assessment – in the judgment concerning the Treaty of Maastricht – that the mandate of the ECB is limited, in essence, to monetary policy, raised a considerable number of objections against the OMT program, and, boiling down these objections to only three minimum requirements, suggested a restrictive interpretation of the program “in conformity with EU Law,” which, if adopted by the ECJ, might dissipate its constitutional concerns. Such an interpretation, it held, would have to exclude a debt cut, make sure that government bonds of selected member states are not purchased up to unlimited amounts, and see to it that interferences with price formation on the market are to be avoided where possible. The ECJ responded with a judgment that was complaisant with respect to admissibility. What might have been read as a sharp threat to disobey, was benevolently and correctly, as it turned out, interpreted as provisional hypotheses. The answers given on the merits, however, were not quite as accommodating.33 Some of the FCC’s objections were explicitly 31

32

33

See “Types of Cooperation,” 2.b) and 2.c); BVerfG (Second Senate), Order of 14 January 2014, OMT Case. For the meaning of identity in this context, see the preceding section “Problems of Judicial Cooperation in a Transnational Context.” ECJ, Judgment of 16 June 2015, C-62/14 (Gauweiler et al.), available at https:// curia.europa.eu.

  



rejected,34 and, while clearly restricting the ECB in some aspects bearing relevance to the three minimum restrictions on the OMT program postulated by the FCC, the ECJ did not explicitly adopt these restrictions. Following that intermezzo, the FCC in its final judgment first criticized the ECJ’s reasoning as methodologically insufficient with respect to giving effect to the doctrine of conferral, that is, to the limitation of European Union competences to what has been conferred by the treaties. But then it ingeniously read some more restrictions out of the ECJ’s ruling than the ECJ may have been aware of pronouncing, and eventually found that, considering these restrictions, the OMT program and the ECJ ruling endorsing it were not as obviously overreaching as to permit an ultra vires finding.35 A violation of constitutional identity was not detected either. Meanwhile, the FCC has been seized with several constitutional complaints concerning a new government bond purchasing program adopted by the ECB in 2015, with subsequent modifications. In the matter of this Quantitative Easing program, the FCC again referred questions concerning the compatibility of the program with primary European Union law to the ECJ.36 On this occasion, it has voiced its concerns much more cautiously in tone than in the OMT case and based them exclusively on the restrictions on this type of ECB activity that, in the FCC’s reading, the ECJ itself enunciated in its OMT judgment. How this serve will be returned remains to be seen.

Hazards of Diplomatization Successive mutual approximation is typical of transnational judicial cooperation.37 Much as the courts involved in such cooperation and their 34

35

36 37

The ECJ, other than the FCC, saw no transgression of the boundaries of monetary policy in selective sovereign bonds purchases (purchases only of bonds issued by selected Euro Zone member states), ibid., para. 55, nor in that purchases had been made accessory to participation of the emittent state in an economic adjustment program, ibid., para. 57 ff., and found no fault with the risk of unquantifiable losses that might be incurred, ibid., para. 123 ff. BVerfG (Second Senate), Judgment of 21 June 2016 – 2 BvR 2728/13 et al. For the relevant restrictions on the OMT program, see summarizing passage in para. 199, where the restrictions held to be extractable from the ECJ ruling are enumerated, each with references to the paragraph(s) of the ruling from which it is supposed to follow. For the method of extraction used cf. also para. 192. BVerfG (Second Senate), Order of 18 July 2017 – 2 BVR 859/15 et al. For examples cf. also M. Hertig Randall, “Der grundrechtliche Dialog der Gerichte in Europa,” Europäische Grundrechte-Zeitschrift 40(2014), 5–18.



 

judges take pains to justify each step in these processes of approximation by legal arguments, the idea suggests itself that diplomacy is involved, not just with respect to form38 but also with respect to substance. There are social laws of group dynamics and communication dynamics which must be observed in any type of cooperation. At least in the long run, cooperation never works without elements of compromise – all the less where strong enforcement powers are absent. This is as true for cooperation, formal or informal, among judges and courts as anywhere else. As an element attributed to the political sphere, however, compromise never appears as such on the face of decisions. As far as I have been able to observe, and to learn from apex court judges interviewed in the course of a current research project, even in judicial deliberations, compromise, although perceived as existent and important in courts that traditionally work on a collegial basis, and increasingly even in courts with a tradition of seriatim individual judgments,39 is hard to pin down, because it hardly ever appears in an outspoken manner.40 Usually, it is just left open, and individual judges may even find it hard to distinguish by introspection whether steps toward convergence, internal or vis-à-vis external partners, are taken by way of compromise or by way of adopting the relevant convictions as one’s own. The latter 38

39

40

For citation of foreign case law as a possible expression of judicial diplomacy see D. S. Law, “Judicial Comparativism and Judicial Diplomacy,” University of Pennsylvania Law Review 163 (2015), 927–1036. For other possible functions in the context of judicial decisions concerning European integration see M. Wendel, “Richterliche Rechtsvergleichung als Dialogform: Die Integrationsrechtsprechung nationaler Verfassungsgerichte in gemeineuropäischer Perspektive,” Der Staat 52 (2013), 339–370. See, e.g., for the UK Supreme Court, W. Ernst, Rechtserkenntnis durch Richtermehrheiten: “Group Choice” in europäischen Justiztraditionen (Tübingen: Mohr Siebeck, 2016), pp. 262 ff., A. Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford and Portland, OR: Hart Publishing, 2013), pp. 99 ff. On differences between seriatim and per curiam traditions and their expressions in different cultures of judicial decision-making, see G. Lübbe-Wolff, “Cultures of Deliberation in Constitutional Courts,” in Patricio Maraniello (ed.), Justicia Constitucional, La Justicia constitucional en los diferentes ámbitos del derecho y sus nuevas tendencias (Resistencia, Chaco: Contexto, 2016), Vol. 1, pp. 37–52. For an identification of accommodating behavior (in German: Entgegenkommen) – which may suggest, but does not necessarily imply compromise – on the part of a partner court see S. Jost “Endspiel der Gerichte,” Die Welt, February 17, 2016 (newspaper article on the FCC’s final oral hearings in the OMT case), reporting that FCC president Andreas Voßkuhle said in the hearing that part of the FCC’s minimum requirements for justifiability of the OMT program had been adopted by the ECJ, and that he therefore would not say the ECJ had not been accommodating (more literally: that the ECJ had not made steps towards the FCC, “dass er uns nicht entgegengekommen ist”).

  



may come about as a result of reflection, internal deliberation, and external dialogue, and in any of these cases a perception of functional necessity may be a decisive factor. At any rate, a need for compromise can just be in the air, and it will then permeate judicial decision-making through the indeterminacies of the law that judges are called upon to transform into clarity. In a transnational context, where enforcement powers are not the same as on the domestic level, and where greater differences of legal culture have to be accommodated, compromise or its functional equivalent – changes of mind in the process of dialogue – are bound to become more important. There is nothing wrong, in principle, about taking account of this not only in squarely diplomatic extra-case-law interactions41 but also in judicial decision-making. It is as a matter of law that judges take account of what is necessary to preserve the functioning of the judicial system of which they are part. To preserve the functioning of the “common European judicial space,” interpretive flexibility beyond what jurists and other people are used to on the national level, and acceptance of transnational judicial decisions that go far astray of national legal expectations, may appear necessary. A related problem of adjudication in a transnational context should, however, not go unnoticed: The more it meets a perceived need for compromise or its functional equivalents, the less it will be distinguishable from policy making and diplomacy.42 In the long run, the costs of a salient diplomatization of law – in terms of losses of authority for both national and transnational courts and the law they administer – may turn out higher than the costs of frictions in a “common judicial space.” This is one of many dilemmas we face in the processes of transnationalization. 41

42

See., e.g., the interaction in 2014 between Andreas Voßkuhle, president of the German FCC, comparing the relationship between national courts and the ECtHR to that between the elements of a mobile (A. Voßkuhle, Pyramid or Mobile? – Human Rights Protection by the European Constitutional Court (speech given on the occasion of the solemn hearing of the European Court of Human Rights on the occasion of the opening of the judicial year), in ECtHR, “Dialogue between Judges,” 2014, 36–40 [36], and Dean Spielman, then president of the ECtHR, who had ended his opening speech and introduced the lecture of his German colleague by comparing the interaction between FCC and ECtHR to that of the soloists in Bach´s Concerto for Two Violins in D Minor (D. Spielman, Opening Speech, ibid., 31–35 [35]). I have asked myself how this obliging politeness was received by those who found themselves reduced to tutti players in that allegory. It is one of the deficiencies of theories purporting that judges hardly do anything but their own policy making, anyway, that they must remain blind to changes of this kind.

11 Judging Methods of Mediating Conflicts Recognizing and Accommodating Differences in Pluralist Legal Regimes

 

Introduction The United States and Europe share a constitutive commitment to what is often described as multilevel governance. Subunits have legal autonomy and participate in shaping meta-norms. Yet their authority is also limited because they have joined to share a legal-political identity for which deviation from foundational norms is not permitted. But what are those norms and how much variation is tolerable? The United States and Europe have made constitutive commitments to respect individuals’ equality, dignity, and liberty and to protect the structures of democratic processes and independent judiciaries.1 Yet in practice, applying these precepts bear testament to different understandings of what being part of the United States or Europe entails. I write during the winter of 2018 when electoral upheavals in many parts of the world make patent the fragility of egalitarian social ordering. Thanks to Christine Landfried for bringing this volume together; to Denny Curtis, Abbe Gluck, Vicki Jackson, and Reva Siegel for many discussions on federalisms’ forms; to Nicola Lacey and Dirk van Zyl Smit for help in understanding the development of prisoners’ rights in Europe; to former and current students Clare Ryan, Matt Butler, Urja Mittal, Josh Civin, and Regina Wang; and with special thanks to Bonnie Posick for editorial advice. 1 In the United States, these precepts are found in structural allocations in the Constitution and the Bill of Rights. The term dignity is not in those texts but appears after the 1950s with regularity in case law interpreting constitutional guarantees. Article 2 of the Consolidated Treaty on the European Union (2012) provides a statement of values: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”



    



Within the United States and Europe, claims are made that actions by elected leaders belie values argued to be constitutive. The vivid disengagement of Brexit has parallels in actions by member states that, while formally within Europe, have exited “by degree” through lessening their adherence to protecting judicial independence, rule of law, and equality.2 Living inside these contemporary conflicts makes it difficult to assess the degree of risks posed to and the resilience of institutions aspiring to insist on constraints on government power and the protection of civil rights. Yet a modicum of comfort may come from recognizing that conflict is not foreign to legally pluralist regimes, which build in opportunities for disagreement, and that institutions have evolved to mediate some of the disputes arising from layered and redundant legislative, executive, and judicial systems. That redundancy, which is the bedrock of federated governance, enables norm entrepreneurs to shop systems. They can try to persuade executive officials, judges, legislators, and voters from different levels about the wisdom or the legality of particular points of view – for or against, for example, measures to stem violence against women, welcome or rebuff migration, provide access to reproductive health services, and protect voting rights. Moreover, resolutions that appear to settle issues are often challenged, as political and social movements regularly seek to revise the rights and the power allocations announced. Rather than seeing these conflicts as pathologic, upsetting what Thomas Aquinas called “the tranquility of the state,”3 federated systems have to acknowledge that forms of discord are positive features of governance in which political and legal transformations are always underway.4 What seems to 2

3

4

See C. Ryan, M. Maduro, and K. Scheppele, “Exiting by Degree,” in J. Resnik and C. Ryan (eds.), Reconstituting Constitutional Orders, Yale Law School ebook (2017), pp. IV-1–IV63, https://documents.law.yale.edu/sites/default/files/gcs2017.pdf (accessed August 10, 2018). See also T. Kleinlein and B. Petkova, “Federalism, Rights and Backlash in Europe and the United States,” I•CON 15.4 (2018), 1066. See N. Aroney, “Subsidiarity, Federalism and the Best Constitution: Thomas Aquinas on City, Province and Empire,” Law & Philosophy 26.2 (2007), 172. The purposeful efforts to create the conditions for intergovernmental disagreement in the United States are explored in J. Gardner, “Justice Brennan and the Foundations of Human Rights Federalism,” Ohio State Law Journal 77 (2015), 355, and his term is “contestory federalism.” See “The Theory of Contestory Federalism,” SSRN, 2017–010. Abstract 3068259, https:// papers.ssrn.com/abstract=3068259. See generally, J. Resnik, “Federalism(s) Forms and Norms: Contesting Rights, DeEssentializing Jurisdictional Divides, and Temporizing Accommodations,” in J. Fleming and J. Levy (eds.), NOMOS LV, Federalism and Subsidiarity (New York: New York University Press, 2014), pp. 363–435.



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have been settled – even through constitutional adjudication – is often reconfigured.5 In these systems of “complex concurrency,” distinct political units can produce the same outcomes that, as Robert Cover explained, reflect the strength of legal commitments in a particular domain.6 Disuniformity, in turn, underscores the depth of disagreement about what the norms should be. Such conflicts have an expressive function through which subunits and the larger entities both mark and make their own identities. But methods are needed to structure debates about norms. Plural legal regimes have to find means to generate and sustain shared commitments, while accommodating variation reflecting subunits’ distinctive political identities. Disagreements can be tolerated unless simultaneously complying with differing regimes becomes functionally impossible or the variation is seen as too far afield from what membership in the larger or smaller political unit entails. Temporizing resolutions need to come from institutions and practices that are perceived to be legitimate by the various stakeholders and that either enable compromises or mediate disagreement through a sense of shared purpose. In this chapter, to understand better the forms and limits of judicial power, I explore two of the venues in which accommodations take place and the methods that each has developed when allocating authority. A first is the development of networks that federalist regimes spawn and that criss-cross the boundaries of individual subunits to shape norms that do not map neatly onto the territorial boundaries of subdivisions and that undermine an image of fixed unilateral relationships. These organizations are also regular participants in courts, and it is the work of apex courts in the United States and Europe that is the other focus of this chapter. As I analyze, the productivity of these diverse institutional arrangements undercuts an assumption that formalist delineations of boundaries provide insights into how to decide conflicts. That approach, which I term jurisdictional essentialism, links domains of law (such as violence against vulnerable persons, immigration, reproductive choice, voting) to 5

6

Examples of revising the frames of constitutional rules in the United States are plentiful. See, e.g., R. Post and R. Siegel, “Roe Rage: Democratic Constitutionalism and Backlash,” Harvard Civil Rights–Civil Liberties Law Review 42 (2007), 373; J. Resnik, “The Production and Reproduction of Constitutional Norms,” New York University Review of Law & Social Change 25 (2011), 226. R. Cover, “The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation,” William & Mary Law Review 22 (1981), 639.

    



particular levels of government, but misses that legal rules are made through interactions in which the subunits’ or larger entities’ interests are not fixed ex ante. In contrast, doctrines such as the “margin of appreciation” of the European Court of Human Rights (ECtHR) can provide ways of accommodating differences that can build in opportunities for reconsideration. That posture leaves open the possibility of revisiting prior rulings, even as it also permits the under-enforcement of constitutive rights or overrides subunits’ claims. In the text that follows, I explore more about the shifting modes of governance in federated systems, the appeal and limits of essentialist approaches, and the contributions that federalism discounts can make in mediating conflicts.

Diffusing Distinctions of Territorial Boundaries: Trans-Local Organizations of Government Actors In multilevel systems, subunits are often conceived to be solo actors. Terms in US federalism make this point, with regular references to two-dimensional interactions, along either a “vertical” (federal/state) or a “horizontal” (state/state) axis. That line-drawing does not reflect cohorts of states or subunit actors working in concert. Nor do those static lines capture innovative reconfigurations within and across plural regimes.7 Enabled by technologies that facilitate cross-border joint ventures, subunits and their employees have developed organizations that are distinct from, but gain their identity through, their public roles. Neither their work nor the issues in focus (economic, security, environmental, and migration) track territorial boundaries. These entities provide reasons to be skeptical of jurisdictional formalism, and these entities offer opportunities to promote shared or overlapping policies that mediate conflicts by reducing differences in rules and practices. Subunit co-venturing is not novel. In the latter part of the nineteenth century, states within the United States came together to create what they called a Uniform Law Commission (ULC), tasked with generating model laws that each state could individually enact and, in some instances,

7

See also S. Cassese, The Global Polity: Global Dimensions of Democracy and the Rule of Law (Seville, Spain: Global Law Press, 2012); and S. Cassese (ed.), The Administrative State (Oxford: Oxford University Press, 2017).

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adapt to its own circumstances.8 The goal was to create a national regime, “bottom up,”9 through promulgating model laws to be enacted by each state. Parallel organizations in Europe use different methods of bridging subunit interactions. Illustrative are two entities, the European Commission for Democracy through Law (known as the Venice Commission) and the more recently formed Superior Courts Network, which focuses on expanding exchanges between the highest national courts and the ECtHR.10 At times, these entities are organized by governments and constituted by law, such as the Committee of the Regions in Europe.11 In the United States, hundreds of these trans-local organizations are “private” in the sense that they are incorporated independent of governments. Yet because their members are “public” actors, they gain the imprimatur of public-like status and serve as norm entrepreneurs, lobbying the federal government, providing networks of information, framing legislative initiatives, filing amicus briefs in courts, and shaping policies. I call these entities TOGAs12 – trans-national organizations of government actors – to denote both the civic purposes of and the diversity

8

9

10

11

12

See R. Stein, Forming a More Perfect Union: A History of the Uniform Law Commission (Charlottesville, VA: Matthew Bender, 2013). The organization began in 1892. Id. at 7. H. Gerken, “Foreword: Federalism All the Way Down,” Harvard Law Review 124 (2010), 4–74. The Venice Commission overview is at “Constitutional Justice – Co-operation with Regional and Linguistic Groups,” Venice Commission. For information on the Courts Network, formed in 2015, see “Superior Courts Network,” www.venice.coe.int/Web Forms/pages/?p=02_Regional&lang=EN (accessed March 18, 2018). The database managed by the Venice Commission to provide and to share case law from different member states is at “Constitutional Justice – Cooperation between the Venice Commission and Constitutional Courts – CODICES,” Venice Commission, www.venice.coe.int/WebForms/pages/?p=01_Constitutional_Justice&lang=EN#CODICES (accessed March 18, 2018). On the Courts Network, formed in 2015, see “Superior Courts Network,” ECHR, www.echr.coe.int/Pages/home.aspx?p=court/network (accessed March 18, 2018). The operational rules were launched in 2015, and the first official gathering took place in June 2017. See A. Cygan, “The Regions within Multi-Level Governance: Enhanced Opportunities for Improved Accountability?,” Maastricht Journal of European and Comparative Law 21 (2014), 265–280; J. Hunt, “Devolution and Differentiation: Regional Variation in EU Law,” Legal Studies 30 (2010), 421–441. The question of the political authority and stature of these organizations is distinct from the ways in which they are formed. See J. Resnik, J. Civin, and J. Frueh, “Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs),” Arizona Law Review 50 (2008), 709–786. The acronym comes from Roman garb marking citizenship.

    



among trans-municipal, trans-regional, trans-county, and trans-state organizations.13 These entities are formed by officials or entities at a particular level of government (mayors, governors, judges) or organized by responsibilities (sanitation, policing, prison management, the environment). TOGAs aggregate their members’ political capital for reasons ranging from market expansion (the “Sisters Cities” program in the United States that has an international counterpart14) to lobbying for resources from or buffering against the larger units of which they are a part. Moreover, because their members work within governments, TOGAs have practical insights and technical expertise that situate them specially as information resources for policy making. TOGAs are thus “interest groups” whose “special interest” derives from their members’ function as public servants, holding positions in particular jurisdictions. TOGAs assume the utility of government, as they derive from, support a sense of a common good, and are pressed by constituents to deliver services. These organizations can become resources to enhance government capacities and to buffer against dysfunctions of or disaffections with government more generally. Those ambitions usually mean that TOGAs conceive of themselves as nonpartisan and aim to leave political party membership aside. Through their work, TOGAs undercut a tidy mapping of multilevel governments. Indeed, conceiving of the structure of government in “levels” becomes awkward, given that complex grids, webs, and networks more aptly capture the mélange of relationships. Moreover, even as diagonals offer another line, that static picture misses jagged crossconnections produced through an array of trans-local-trans-national accords that include subunits of more than one federation co-venturing with each other across national boundaries. One illustration comes from the US Uniform Law Commission (“ULC”), which in some respects is state regarding or state protective because it puts each state to the task of individually affiliating with each of the commission’s model laws. Yet the ULC is also nationalist in its efforts to generate comparable or identical rules across state borders. Even as its stated aims are promotion of the “clarity and stability” of state 13

14

Some of these organizations can also be understood through the lens of experimentalist governance. See G. de Burca, R. Keohand, and C. Sabel, “New Modes of Pluralist Global Governance,” New York University Journal of International Law & Policy 45 (2013), 723. See “About Sister Cities International,” Sister Cities International, www.sistercities.org (accessed March 18, 2018).

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law, the results are law that is “state law” in one sense but is better described as trans-state or multi-state law.15 Examples include the Uniform Commercial Code, first drafted in 1952 and, by 1990, adopted in all fifty states, albeit sometimes with modification.16 Another is the Interstate Agreement on Detainers, put forth in 1956, which focused on how criminal defendants are brought from one jurisdiction to another, and used in most states and the federal system.17 Soon after its inception, the US ULC also worked on “international outreach”18 that belies conventions that all such activity happens at national levels. In the 1940s, the “UCL” began meeting with Canada’s parallel commission, while connections forged with Mexican Center for Uniform Law began in the twenty-first century.19 The results are yet more law unbounded, in the sense that the rules generated do not track national borders. Illustrative is a Uniform Transboundary Pollution Reciprocal Access Act, jointly drafted by uniform law organizations in Canada and the United States in 1982 and, by 2013, adopted in seven states and three provinces.20 Another is the Uniform Unincorporated Nonprofit Association Act, which was a joint project of the US ULC, the Uniform Law Conference of Canada, and the Mexican Center for Uniform Law. Moreover, an account of such eclectic legal regimes ought not be keyed solely to the institutional rubrics provided by TOGAs. Many ad hoc agreements exist, such as when a few provinces within Canada joined US states to respond to problems arising related to the Great Lakes, bodies of water that touch on both countries’ shores.21 Some TOGAs rely on nation-state boundaries and co-venture, just as some subunits reach across borders to do so. Yet other organizations are

15

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17

18 19 20 21

For the aims of the ULC, see “About the ULC,” Uniform Law Commission, www .uniformlaws.org/Narrative.aspx?title=About%20the%20ULC (accessed March 18, 2018). The 50th state to adopt the Uniform Commercial Code, in 1990, was Louisiana, which had a civil law tradition and varied the code to some extent. Uniform Commercial Code (UCC), Louisiana Secretary of State, www.sos.la.gov/BusinessServices/UniformCommer cialCode/Pages/default.aspx, (accessed August 9, 2018). For the National Center for Interstate Compacts’s summary of states that have passed Detainer Acts, see http://apps.csg.org/ncic/Compact.aspx?id=1 (accessed March 18, 2018). Interstate Agreement on Detainers Act, Pub. L. 91–538, 84 Stat. 1397 (1970); codified at 18 USC App. (2012). Stein, Forming a More Perfect Union, 177–191. Id. at 187. Id. at 181. See “States/Provinces,” Great Lakes Seaway Partnership, http://greatlakesseaway.org/state sprovinces/ (accessed March 18, 2018).

    



formed by government officials from various countries. Illustrative is the International City/County Management Association (ICMA) begun in 1914 and aiming to improve the professionalization of local government staff. At the time, ICMA stood for the International City Managers Association.22 In 1969, the “M” in ICMA came to denote “Management” because the organization expanded to embrace both city and county staff joining the International City/County Management Association. When it began, 50 localities met its membership criteria; by the beginning of the twenty-first century, ICMA had grown to include more than 11,000 individual members and to engage in projects in more than 70 countries,23 albeit still with a membership predominantly drawn from employees within the United States.24 New technologies and shared challenges such as climate change have produced more cross-border subunit exchanges, as illustrated by yet other organizations, such as the International Council for Local Environmental Initiatives (ICLEI) – Local Governments for Sustainability, consisting of 1,500 cities, towns, and regions committed to sharing knowledge and resources for implementing “sustainable development at the local level.”25 Within the United States, the US Conference of Mayors has famously adopted a climate change protocol that, in the first decade of the twentieth century, served as a counterweight to the federal government’s lack of participation in the Kyoto Protocol.26 As the US government has once again retreated from the successor Paris Climate Accords, states and localities have again come together to exercise authority over environmental harms.27

22

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24 25

26 27

Int’l City/County Mgmt Ass’n, Who We Are, https://icma.org/who-we-are (accessed March 18, 2018). Int’l City/County Mgmt Ass’n, Our Global Reach, https://icma.org/our-global-reach (accessed March 18, 2018). Id. See “Frequently Asked Questions about ICLEI,” ICLEI – Local Governments for Sustainability, www.iclei.org/about/who-is-iclei/faq.html (accessed March 18, 2018). See Resnik, Civin, and Frueh, “Ratifying Kyoto at the Local Level.” One example is the 2018 Global Climate Action Summit of “state, tribal, and local governments, business, and citizens from around the world,” hosted by Governor Jerry Brown in California, see Global Climate Action Summit, https://globalclimateactionsummit.org (accessed March 18, 2018). For a list of more than 400 mayors who have committed to following the Paris Climate Agreement, see “Members,” Climate Mayors, http://climate mayors.org/about/members/ (accessed March 18, 2018).



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The interactions are not unidirectional. TOGAs can provide feedback loops to enhance dialogic features of federalism.28 Indeed, in both Europe and the United States, the larger unit has been a resource for some TOGAs and, in a few instances, has helped to create these trans-local organizations in efforts to gain support for national policies and to diffuse criticism. Further, just as state and national interests are not fixed, TOGAs are dynamic. Many have reconfigured over time or merged with other entities, and some that once were seen as “pro-” or “anti-” particular issues – such as immigration – have changed their stances over the decades of their existence. TOGAs’ agendas are, therefore, a product of interactions, rather than a set of interests produced at any one level and then promoted elsewhere. My descriptive account has to be tempered with the politics of the time, as commitments to nonpartisan governance are under stress. In the United States, the National Association of Attorneys’ General has been buffeted by the rise of the Republican Attorneys’ General Association, to which a Democratic Association has come into being in response.29 Moreover, a normative analysis of the impact of TOGAs entails assessing how they fit within the justifications for multilevel governments. Federalism theories posit that “split[ting] the atom of sovereignty” (to borrow a phrase from the US Supreme Court)30 is more generative, democratically politically responsive, and accountable than locating authority in one central government. TOGAs can express federalist values of redundancy through multiplying the sources of lawmaking. TOGAs can also augment the political capital for the jurisdictional officeholders who, in some senses, they represent.31 Yet TOGAs can also undercut some of the standard justifications for multilevel governance. Classic federalist arguments are that tiered structures create accountability by identifying the sources of decisions to

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See R. Cover and T. Alienikoff, “Dialectical Federalism: Habeas Corpus and the Court,” Yale Law Journal 86 (1977), 1035. See National Association of Attorneys General, www.naag.org (accessed March 18, 2018); Republican Attorneys General Association, www.republicanags.com (accessed March 18, 2018); Democratic Attorneys General Association, https://democraticags.org (accessed March 18, 2018). US Term Limits, Inc. v. Thornton, 514 US 779, 838 (1995) (Kennedy, J., concurring) (“Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty.”). The question of the nature and quality of representation within TOGAs is complex, as the mechanisms by which positions are taken varies across the set.

    



which electorates and lobbyists can respond.32 Multilevel government is also claimed to promote welfare by creating competition that can clarify the efficiency and fairness of different legal regimes, albeit even if at times it inspires races to the bottom. Thus, the federalism literature is rich with discussions of how subunit governance gains legitimacy by enhancing the “voice” of individuals and the possibility of “exit” (“voting with one’s feet”). TOGAs, however, can blur lines of accountability and, when harmonizing across subunits, undermine the utility of shopping for and exiting from a subunit. If federalism is valued for its production of diverse responses tailored to local conditions, TOGAs’ trans-localism may damp down that diversity. In short, it is an error to map plural legal regimes as if subunits were solo actors, expressive of political will and insulated from other sources. That approach misses the infusion and production of norms that travel horizontally, vertically, diagonally, and diffuse irregularly.33

Jurisdictional Essentialism and Federalism Discounts to Accommodate Differences I have brought TOGAs into view because they are less often seen as a set of institutions that are venues for mediation of conflicts in plural legal regimes. In contrast, courts are readily understood as the place for such disputes. In multilevel governments, apex courts have shaped doctrines expressly aimed at valuing the autonomy of subunits while, at times, insisting on uniformity. In the discussion that follows, I contrast an essentialist jurisdictional approach – reliant on competencies attached to levels of government – with federalism discounts that acknowledge deviation from central norms and then decide, case by case, whether to tolerate variation. One prefatory clarification is in order when discussing deference to subunits in the jurisprudence of courts in the United States and Europe. The history of federation in the United States is linked to the toleration of slavery at the founding. Allocating authority between state and federal 32

33

The accountability rationale has been a source in the US Supreme Court doctrine limiting the “commandeering” by the national government of state-based executive actors. See New York v. United States, 505 US 144 (1992); Printz v. United States, 521 US 898 (1997). J. Resnik, “Constructing the ‘Foreign:’ American Law’s Relationship to Non-Domestic Sources,” in M. Adenas and D. Fairgrieve (eds.), Courts and Comparative Law (Oxford: Oxford University Press, 2015), 434–471.



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courts and their governments was discussed in terms of “dual sovereignty” and “states’ rights” until the second half of the twentieth century, when the US Supreme Court began to use the term federalism as an explanation for decisions that limited access to federal courts or federal government power.34 A thicket of variegated doctrines, sometimes overriding or preempting state law and at other times deferring, has emerged. In Europe, the term subsidiarity denotes concerns for limited central power but is more complex. Subsidiarity in the European Union (as distinct from the Council of Europe) requires that the European Union address areas that fall within its “exclusive competence,” assessed by deciding if “the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at the central level or at the regional or local level, but can rather, by reason of scale or effects of the proposed action, be better achieved at Union level.”35 As the description’s own circularity suggests and as many commentators have explained, this injunction to European legislators does not weight a decision in favor of any particular level of governance but creates a presumption of action at the scale at which it is needed.36 In the jurisprudence of the ECtHR, a distinct but related doctrine, the margin of appreciation, entails openness to deferring to subunits, as I discuss. As I noted at the outset, an essentialist approach locates certain kinds of problems as within the competency of a particular level of government. A related facet is the presumption of exclusivity, as if an either/or approach is a logical entailment of federated forms and sustainable in fact. In the United States, that approach is often explained as deferring to state authority. Illustrative is a decision in 2000 by a bare majority of the US Supreme Court, which held unconstitutional one facet of a 1994 congressional statute, the Violence Against Women Act (VAWA), that created access

34

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See, e.g., Younger v. Harris, 401 US 37, 44 (1971) (describing “Our Federalism”); see also Gregory v. Ashcroft, 501 US 452 (1991). See Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community art. 5(3), Dec. 13, 2007, 2702 UNTS 3. A. Føllesdal, “Competing Conceptions of Subsidiarity,” in Fleming and Levy, NOMOS LV: Federalism and Subsidiarity, p. 214. PluriCourts Research Paper No. 13–05 (2013), http://papers .ssrn.com/sol3/papers.cfm?abstract_id=2359964 (accessed August 9, 2018). See, e.g., F. Fabbrini, “The Margin of Appreciation and the Principle of Subsidiarity: A Comparison,” iCourts Working Paper Series, No. 15 (2015), https://papers.ssrn.com/ sol3/papers.cfm?abstract_id=2552542 (accessed August 9, 2018).

    



to federal courts for victims of gender-based violence.37 When enacting the provision, Congress relied on its constitutional authority to regulate interstate commerce and its findings that threats of violence limited women’s economic opportunities. Congress had proffered a parallel understanding in the 1960s, when enacting public accommodation laws mandating that race not be used as a reason to bar individuals from using hotels and restaurants; the legislature identified discrimination as imposing substantial barriers to the full economic participation of blacks in national markets. The US Supreme Court agreed in its decision ruling that the Heart of Atlanta Motel could not refuse to provide rooms to black customers.38 When enacting the 1994 VAWA, Congress relied on that precedent, along with its powers under the Equal Protection Clause of the Fourteenth Amendment to authorize lawsuits based on “genderanimated violence” in federal courts. Before the US Supreme Court, more than 30 states joined in an amicus brief, agreeing with Congress that creating a supplemental federal remedy did not intrude on state authority.39 One state argued Congress had overstepped its bounds.40 In 2000, the Court joined that outlier in concluding that Congress lacked power to open federal court doors to victims of gender-based violence. The holding rested on the proposition that the “Constitution requires a distinction between what is truly 37

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42 USC § 13981 (1994) (“[I]t is the purpose of this part to protect the civil rights of victims of gender motivated violence and to promote public safety, health, and activities affecting interstate commerce by establishing a Federal civil rights cause of action for victims of crimes of violence motivated by gender.”). Some state public accommodation laws predated those of the federal government. The authority to bar discrimination was before the Supreme Court in a case in which Colorado concluded that a baker could not refuse to sell a cake for a same-sex marriage. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (June 4, 2018). In Heart of Atlanta, the claim of free expressive association was advanced against federal law application; in the Masterpiece litigation, the baker argued that his federal First Amendment rights shielded him from application of the state’s nondiscrimination mandates. The Supreme Court held that antidiscrimination laws can and at times must protect gay persons and gay couples, but that religious and philosophical objections to gay marriage were also constitutionally protected expressive views. The Court found that Colorado decision-makers expressed impermissible hostility toward the baker’s “sincere religious beliefs,” rather than weighed his beliefs against the state’s interest. Brief of the States of Arizona et al. in Support of Petitioners, Brief on the Merits, Morrison (Nos. 99–5, 99–29), 1999 WL 1032809 (arguing, on behalf of 36 states and Puerto Rico, for VAWA’s constitutionality on Commerce Clause grounds). Brief for the State of Alabama as Amicus Curiae in Support of Respondents, Morrison (Nos. 99–5, 99–29), 1999 WL 1191432.



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national and what is truly local.”41 The majority then categorized violence against women as “local” by stipulating that “violence” was not “economic in nature” but fell instead under the headings of crime and tort.42 This decision exemplifies both the appeal of a categorical essentialist approach as well as its weaknesses. Bounded categories – state, as contrasted with federal, family, and criminal law as contrasted with civil rights law – seem to reinforce the authority of subunits. Yet this resort to formalism through assuming that either the subunit or the larger unit has intrinsic authority over a given domain creates a false static picture of the nature of rights and of the sources of political authority. As is familiar, law long tolerated violence against women, in part by deeming it a “domestic” matter, governed within households and without any external legal protection. During the latter part of the twentieth century, the disproportionate degree of violence visited upon women became the subject of local, state, national, and trans-national law. That shift, predicated on trans-national mobilizations, brought the harms of violence under the rubric of inhuman and degrading treatment, as well as violations of rights to autonomy, privacy, freedom in one’s personal life, and equality, atop tort and criminal law. Indeed, the 1994 VAWA enactment in the United States was part of a worldwide reevaluation of the impact of violence on women’s lives and on the polities that sheltered aggressors. In 1992, the committee, empowered by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), issued a General Recommendation, “Violence Against Women,” that detailed how violence contributed to women’s subordination.43 Soon thereafter, international criminal tribunals recognized rape as a war crime, and the treaty

41 42 43

United States v. Morrison, 529 US 598, 617–618 (2000). Id. at 613. See Committee on the Elimination of Discrimination Against Women, General Recommendation 19: Violence Against Women, 11th Sess., UN Doc. 1/47/38 (1992). That Recommendation declared that gender-based violence fell within the definition of discrimination against women in Article I of CEDAW because it “impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions,” including the rights to life, to be free from torture and other forms of cruel, inhuman, or degrading treatment, equal protection, liberty and security of the person, and equality in the family. Id. at paras. 6 and 7. Further, states could be responsible for failures to prevent, investigate, or punish violence. Id. at para. 9.

    



launching the International Criminal Court included gender-based violence within its definition of crimes against humanity.44 In 2011, the Inter-American Commission on Human Rights categorized gender-based violence as “one of the most extreme and pervasive forms of discrimination, severely impairing and nullifying the enforcement of women’s rights.”45 That pronouncement came in a case from the United States; a woman had obtained a protective order against her estranged husband and tried to enlist police in the Town of Castle Rock, Colorado, but her husband killed their daughters.46 The Inter-American Commission held that the United States had violated “the State’s obligation not to discriminate and to provide for equal protection before the law under Article II of the American Declaration.”47 In the same year, the Council of Europe promulgated a new Convention on Preventing and Combating Violence Against Women and Domestic Violence to “[p]rotect women against all forms of violence, and prevent, prosecute and eliminate violence against women and domestic violence.”48 In 2013, in Valiuliené v. Lithuania, the ECtHR held that Lithuania’s failure to provide remedies for a woman subjected to such violence breached Article 3 of the European Convention on Human Rights (ECHR). Member states had “to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals.”49 The category that has developed in the jurisprudence of the ECtHR focuses on “vulnerable people,” and unlike the “state action” doctrine in US law, contracting parties can be obliged – as

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See Rome Statute of the International Criminal Court, July 17, 1998, UN Doc. A/Conf.183/9 (1998), art. 7 §1 and art. 7 §1(g). Jessica Lenahan (Gonzales) et al. v. United States, Case 12.626 Inter-Am. CHR, Report No. 80/11, para. 110 (2011), www.oas.org/en/iachr/decisions/merits.asp (accessed August 9, 2018). See Town of Castle Rock v. Gonzalez, 545 US 748 (2005). Lenahan (Gonzales) et al. v. United States, Case 12.626, Inter-Am. Comm’n. H.R., Report No. 80/11 (2011), para. 5. Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, Art.1 (a), May 11, 2011, Council of Europe Treaty Series No. 210 (2011). As of March 2018, 28 countries have ratified or acceded to the treaty. See “Charts of Signatures and Ratifications of Treaty 210,” Council of Europe Portal – Treaty Office, www.coe.int/en/web/conventions/full-list/-/conventions/treaty/210/signatures (accessed March 18, 2018). Valiuliené v. Lithuania, Appl. No. 33234/07, Eur. Ct. H.R. March 26, 2013, paras. 74, 75, 86.

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the judgment against Lithuania and other rulings illustrate – to respond to violence imposed by private as well as public actors.50 Thus, although the US Supreme Court sought to cabin violence against women through an essentialist lens locating authority for responses at local levels, that approach has been undermined around the world. And, in the United States, new pressures for national-level redress emerged in the fall of 2017 when #MeToo produced an outpouring of claims of sexually predatory aggression. The Attorneys General of all 50 states signed a letter in the winter of 2018 urging the US Congress to reshape national law to permit claims of sexual harassment to be heard in public courts rather than routed to closed arbitrations.51 In short, once seen as a local matter, gender-based violence is now understood to be a central method of subordination, in need of redress by national and international rules as well as by local laws. In addition to seeking to link levels of political authority to specific domains of human activity, jurisdictional essentialism often conceives of subunit and national interests as preexisting, rather than emerging in the context of specific conflicts about particular issues. This image of “state interests” misses evolution over time and disagreement across subunits about what rules forward their interests. Political units take positions not in isolation but in the context of interactions, often crossing borders of nation-states as well as within a given polity. Immigration conflicts in the United States provide an example. In a 2012 decision about the lawfulness of Arizona’s imposition of criminal sanctions on unauthorized migrants,52 Attorneys General in 16 states took Arizona’s side and argued that their sovereign authority over “police powers” permitted them to add criminal penalties for unauthorized entry to the United States.53 Eleven states took the position that federal law

50

51

52 53

See, e.g., Arrêt Talpis v. Italie, 2.mars, 2017, definitif, Sept. 18, 2017, Requête no. 41237/ 14, paras. 95–106. Letter from P. Bondi, joined by all the other Attorneys General to the Congressional Leadership, re “Mandatory Arbitration of Sexual Harassment Disputes,” www.mass.gov/ files/documents/2018/02/12/NAAG%20letter%20to%20Congress%20Sexual%20Harassment %20Mandatory%20Arbitration.pdf (accessed August 9, 2018). See also Ending Forced Arbitration of Sexual Harassment Act, S. 2203, 115th Cong. (2017). See Arizona v. United States, 567 US 387 (2012). Joining Arizona, which argued that federal law did not preclude its more punitive approach to migrants, were 16 states – Michigan, Alabama, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, Pennsylvania, South Carolina, South Dakota, Virginia, West Virginia, and Wyoming. See Brief of Amici Curiae State of

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preempted their own decision-making on the criminalization of undocumented movement.54 That divide is intertwined with views on the role immigrants play in the United States. When, in 2016, the presidency changed hands, the administration revised the “national” approach and reversed decisions enabling young people arriving without documents in the United States as children (“dreamers”) to gain recognition as lawfully present. Some of the states that once trumpeted their own independence in framing immigration laws became advocates of federal punitive

54

Michigan and Fifteen Other States in Support of the Petitioners, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11–182), 2012 WL 523350. Legislators for Legal Immigration, a “nationwide coalition of state legislators,” also submitted a brief that was joined by 29 individual state legislators from 20 states, including Alabama, Arizona, Arkansas, Colorado, Georgia, Indiana, Maryland, Michigan, Mississippi, Montana, Nebraska, New Hampshire, New Jersey, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Washington, and West Virginia. See Brief of Amici Curiae State Legislatures for Legal Immigration and Individual State Legislators in Support of Petitioners at 1 n.2, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11–182), 2012 WL 523354, at *1 n.2. Coming in on behalf of the United States, which claimed federal exclusivity over criminal prosecution, were 11 states – New York, California, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Oregon, Rhode Island, and Vermont – with New York in the lead. See Brief for the States of New York et al., Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11–182), 2012 WL 1054493. In addition, a mix of TOGAs and localities filed another amicus brief on behalf of the federal government. See Brief of Amici Curiae Cities, Counties, The United States Conference of Mayors, and the National League of Cities in Support of Respondent, Arizona v. United States, 132 S. Ct. 2492 (2012) (No. 11–182). Signatories included the United States Conference of Mayors, the National League of Cities, the County of Santa Clara, California; the City of Austin, Texas; the City of Baltimore, Maryland; the City of Beaverton, Oregon; the City of Berkeley, California; the City of Boston, Massachusetts; the City of Bridgeport, Connecticut; the Town of Carrboro, North Carolina; the Town of Chapel Hill, North Carolina; the City of Charleston, South Carolina; the City of Cincinnati, Ohio; the City of Columbia, South Carolina; the County of Dallas, Texas; the District of Columbia; the City of Durham, North Carolina; the City of Flagstaff, Arizona; the City of Gainesville, Florida; the City of Hallandale Beach, Florida; the City of Laredo, Texas; the City of Los Angeles, California; the City of Madison, Wisconsin; the City of Miami Beach, Florida; the City of Minneapolis, Minnesota; the County of Monterey, California; the County of Multnomah, Oregon; the National League of Cities; the City of New Haven, Connecticut; the City of New York, New York; the City of Oakland, California; the City of Omaha, Nebraska; the City of Palo Alto, California; the Mayor of the City of Phoenix, Arizona; the City of Portland, Oregon; the City of Providence, Rhode Island; the City of Saint Paul, Minnesota; Salt Lake City, Utah; the City and County of San Francisco, California; the City of San Jose, California; the City of San Leandro, California; the City of San Luis, Arizona; the County of San Mateo, California; the City of Seattle, Washington; the City of Tualatin, Oregon; and the City of Tucson, Arizona.

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regimes, and other states that had been skeptical of subunit autonomy asserted their independent sovereign interests in service of providing sanctuary.55 Jurisdictional essentialism not only enshrines state interests but it also relies on a parallel naturalism about “national interests,” as if they too were fixed rather than forged through interactions over time and in exchanges with a multitude of actors. Again, this point became vivid with the change in 2016 in the presidency in the United States. The federal government literally switched sides in several pending cases about issues ranging from immigration and discrimination based on sexual identity to when employees can be required under federal statutes to use arbitration and be precluded from going to court.56 One more example from the United States is a case that was pending as I wrote,57 which underscores the limits of jurisdictional essentialism. At issue were two federal statutes. The National Voter Registration Act of 1993, which bars states from removing people “by reason of the person’s failure to vote” from voter rolls but permits states to take people off if they have moved away from their jurisdiction. The Help America Vote Act of 2002 protects access to voting.58 Doing so requires sending a notice to confirm the voter’s continuing eligibility, and the question in Husted v. A. Philip Randolph Institute was whether Ohio violated the National Voter Registration Act by using a failure of an individual to vote as a “trigger” to send notices.59

55

56

57 58 59

See, e.g., Brief for Amici Curiae States of New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Vermont and Washington, and the District of Columbia in Support of Appellee, City of Chicago v. Sessions, No. 17-cv-05720 (Jan. 4, 2018) (arguing against the penalties for “sanctuary cities”); Amicus Brief of 34 Cities and Counties in Support of Santa Clara’s Motion for Preliminary Injunction, No. 3:17-cv-00574-WHO (April 5, 2017) (same); Proposed Brief of Amici Curiae States of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas, No. 3:17-cv-00485-WHO, No. 3:17-cv-00574-WHO, No. 3:17-cv-01535-WHO (June 16, 2017) (supporting President Trump’s Executive Order). See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioners, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16–111 (Sept. 2, 2017); Brief for the United States as Amicus Curiae Supporting Petitioners in Nos. 16–285 and 16–300 and Supporting Respondents in No. 16–307, Epic Systems Corp. v. Lewis (June 16, 2017). Husted v. A. Philip Randolph Institute, No. 16–980. 52 USC A. § 20501, and § 20901. A. Philip Randolph Institute v. Husted, 838 F.3d 699 (6th Cir. 2016), cert. granted May 30, 2017.

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Ohio took the position that under the statutes, it was proper to send notices to persons not voting in a federal election. Such notices put the burden on potential voters to confirm they had not changed addresses. If voters neither responded nor voted within the following four years, Ohio said it had appropriately purged their names from the rolls. Ohio argued that its approach fit the statute and proposed interpretation based on canons of construction. The state’s opponents argued for purposive statutory interpretation, focused on how Ohio’s approach could disproportionately take minority and young voters off the rolls.60 This high-profile conflict drew many amicus filings, as states disagreed about the legitimacy of national overrides of state rules. One news report described the 17 states supporting Ohio as “generally Republican.”61 Led by Georgia’s attorney general, the top legal officials of Kansas, Nevada, Utah, Texas, Missouri, Tennessee, West Virginia, Alabama, South Dakota, Louisiana, South Carolina, Idaho, Indiana, Montana, Michigan, and Oklahoma insisted that state interests in “accurate, effective, and efficient means” of maintaining voter lists made the Ohio procedure lawful.62 In contrast, 12 states (New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maryland, New Mexico, Oregon, and Washington, joined by the District of Columbia – which a reporter called “generally supported by Democrats”63) argued that Ohio’s procedures violated the statute because a voter could be blocked unless taking “affirmative steps to retain” registration.64 These states asserted that voter inactivity was a “poor measure” to use as a trigger and that doing so would interfere with voting by certain demographic groups, including “racial minorities,” and the “young, poor, and less educated,” who historically had lower voter turnout rates.65 Based on their “experience,” 60

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63 64

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See generally, A. Gluck, “Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways That Courts Can Improve What They Are Already Trying to Do,” University of Chicago Law Review 84 (2017), 117–212. A. Liptak, “Supreme Court Weights Ohio’s Purge of Voting Rolls,” New York Times, January 11, 2018, p. A14. Brief of Georgia and 16 Other States as Amici Curiae Supporting Petitioner, Husted v. Randolph, No. 16–980 (Aug. 7, 2017), p. 1. Liptak, “Supreme Court Weighs Ohio’s Purge of Voting Rolls.” Brief for the States of New York, California, Connecticut, Delaware, Hawai’i, Illinois, Iowa, Kentucky, Maryland, New Mexico, Oregon, and Washington, and the District of Columbia as Amici Curiae in Support of Respondents, Husted v. Randolph, No. 16–980 (Sept. 22, 2017), pp. 1, 2. Id. at 11.

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these states argued that other methods were better “to identify voters who have changed residence,” while Ohio’s practice created “unacceptable risks of disenfranchising eligible voters.”66 What about the voice of the federal government? The US Department of Justice had, in the federal appellate court under the Obama administration,67 filed a brief for the voter whose name was taken off the rolls, as the department had for “decades” taken the position that “failure to vote should not lead to disenfranchisement.”68 But before the US Supreme Court, under the Trump administration, the department switched sides and explained at oral argument that it had revisited the statute and read it to be protective of states’ “flexibility” to manage voter rolls.69 This brief account aims to anchor the disutility of relying on jurisdictional essentialism as a theoretical lens through which to decide conflicts over legal norms within federated entities.70 When apex courts use jurisdictional essentialism as if it answered the question of subunit authority, they obscure their own choices in picking among competing arguments about what legal rule furthers which state interests. Essentialism posits a naturalized complacency about jurisdictional competencies rather than engaging in a disciplined examination of how the content of subject matter competencies change and why authority ought to reside over a specific issue at a particular time at one level of government or another, or ought to be shared. An alternative approach relies on a search for “consensus” (as the ECtHR calls it) among subunits about a particular issue to decide whether an alleged deviation from a trans-national norm is tolerable. The US counterpart is sometimes called “counting states.”71 Just as some TOGAs aspire to move from “diversity in thought” to “uniformity in 66 67

68 69

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71

Id. at 1–2. Brief for the United States as Amicus Curiae Supporting Plaintiffs-Appellants and Urging Reversal, A. Philip Randolph Institute v. Husted, 2016 WL 3923034 (6th Cir. July 18, 2016). Liptak, “Supreme Court Weighs Ohio’s Purge of Voting Rolls.” Transcript of Oral Argument at 31, Husted v. A. Philip Randolph Institute, No. 16–980 (Jan. 10, 2018); see also Liptak, “Supreme Court Weighs Ohio’s Purge of Voting Rolls.” In June 2018, the Court upheld the Ohio approach. See 138 S.Ct. 1833 (2018). See J. Resnik, “Accommodations, Discounts and Displacement: The Variability of Rights as a Norm of Federalism, in Thinking about Federalism(s),” Jus Politicum (2017), 209–269, http://juspoliticum.com/article/Accommodations-Discounts-and-Dis placement-The-Variability-of-Rights-as-a-Norm-of-Federalism-s-1141.html (accessed August 9, 2018). See R. Hills Jr., “Counting States,” Harvard Journal of Law & Public Policy 32 (2009), 17.

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law” (to borrow from the US ULC), courts seek to understand whether a challenged practice is an outlier or conforms, more or less, to the understanding of the legal mandate as reflected in the law of its subunits. After making that assessment, the ECtHR has offered the metaphor of a “margin of appreciation” as an explanation when deciding whether to license variation within some boundaries that it describes as derived from identifying relevant practices of contracting parties. Unlike the conclusory approach of essentialist jurisdictional rulings, this doctrine requires judges to consider whether to give discounts, resulting either in the differential enforcement of specified legal precepts in a given case or in the underappreciation of the identitarian claims of subunit authority. Yet such discounts have the potential to be generative, as they can offer temporary resolutions. Moreover, deciding when to deploy them puts judges to the work of explaining the import, scope, and power of rights, so as to determine the degree to which deviations are permissible. Consensus and counting appear to offer a ready metric grounded in decisions made by legal actors other than the judges rendering the decisions. But these practices are more complicated than they appear. To decide what to count requires delineating the relevant issues and then determining what kind of decisions (fundamental laws, statutes, regulations, executive practices) in which jurisdictions ought to be tallied to decide on whether a consensus exists. Likewise, the “width” of the margin involves drawing lines. Yet additional judgments are required because consensus analysis and the margin of appreciation can be part of proportionality analyses, entailing a series of evaluative decisions about whether a right has been infringed and, if so, whether the state did so in accordance with law, whether the state had permissible reasons to do so, and whether the rights’ intrusion was proportionate to the state’s interests.72 The 1976 Handyside judgment is generally cited as one of the early cases in which the ECtHR described itself as according a “margin” and a “power” of appreciation. The Court held it was not unlawful for the United Kingdom to rely on its Obscene Publications Act to seize and destroy a Danish book, despite the publisher’s objections that doing so violated the ECHR’s free expression rights. The ECtHR explained that 72

See V. Jackson, “Constitutional Law in an Age of Proportionality,” Yale Law Journal 124 (2015), 3094–3196; A. Barak, Proportionality: Constitutional Rights and Their Limitations (Oxford: Oxford University Press, 2012).

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the national government was better situated to assess the need to protect youths than was the ECtHR. The ECtHR has since regularly resorted to “the margin of appreciation.” Here I discuss two other well-known examples, A, B, and C v. Ireland and Hirst v. United Kingdom, both of which illuminate the choices judges make when characterizing rights, assessing jurisdictions’ rules if searching for consensus, calibrating the width of the margin,128 assessing the proportionality of the rights’ infringement, and evaluating the centrality of the right and of the practice to the political identity of a given subunit. A few of the details of the cases and their aftermaths are in order. In 1983, the Irish Constitution was amended to recognize a “right to life of the unborn,” and legislative restrictions and challenges followed thereafter.73 In 2005, two women (A and B) challenged Ireland’s failure to provide abortions based on women’s health and well-being. A third (C) argued that Ireland had not implemented its own legal requirement that abortions be provided to protect a woman’s life.74 All had traveled to England and had abortions. The three claimed that Ireland had violated their right to “private life” protected by the Convention’s Article 8. As the ECtHR described, Article 8 encompasses “the right to personal autonomy and personal development,” including decisions about whether to have children.75 Further, as the Court explained, Europe had achieved a consensus about access to abortion, and Ireland was an outlier. In some “40 Contracting States” “health and well-being grounds” were a basis for obtaining abortions; only three states had more restrictive provisions than Ireland.76 Yet in 2010, the Court concluded that “this consensus” had not “decisively” narrowed “the broad margin of appreciation.”77 Rather, the Court shifted its attention from assessing laws on access to abortion to the question of when “the right to life begins” and concluded that “no European consensus” existed there.78 That lack of consensus, coupled with the “moral and ethical issues” implicated, produced a “broad margin 73

74 75 76 77 78

For example, in 1992, the ECtHR applied its proportionality approach and decided that, although Ireland’s prohibition on information about abortion permissibly regulated free expression rights to protect public morals, the absolute ban imposed was disproportionate to those ends. Open Door and Dublin Well Woman v. Ireland, [1992] ECHR 68. A, B, and C v. Ireland, [2010] ECHR 2032. Id. at para. 212. Id. at paras. 112–113. Id. at para. 236. Id. at para. 237.

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of appreciation” that overcame (except as to petitioner C) the claimed violations of women’s privacy and autonomy rights.79 For C, arguing that her life was at risk, Ireland had to provide “effective and accessible procedures.”80 When announced, the decision appeared to accede to the limits on abortion as central to Ireland’s identity and to try to temporize in the face of intense trans-national opposition, much of it supported by the Catholic Church. On this reading, by accommodating Ireland, the ECtHR seemed to have weakened European protections of private life. Moreover, the judgment could have been read to open the door to permitting more deviations, thus undermining the consensus on abortion. Yet by recounting the consensus on abortion and generally reaffirming access to abortion rights, the ECtHR also underscored Ireland’s status as an outlier. Events in the years since have shown that the decision was far from being the final word. In 2012, a woman in Galway died after repeatedly asking doctors to end a 19-week pregnancy; miscarrying without medical assistance took her life. In the controversy that followed, A, B, and C served for some as insulation against criticism of the Irish restrictions and for others as a prompt for more advocacy to revise Ireland’s statutes and regulations. In 2013, the ECtHR reiterated its view on the consensus in Europe on access to abortion when it concluded that Poland had failed to protect access to obtaining a lawful abortion.81 In 2017, the UN Human Rights Committee ruled that Ireland had violated the human rights of another woman, who had to travel to Britain to obtain an abortion after the diagnosis of a fatal abnormality in the fetus.82 By the winter of 2018, the Irish prime minister committed himself to campaign for a referendum to end the constitutional ban on abortion and, in May 2018, the ban was overturned in a vote described as a “landslide.”83 79 80 81

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Id. at para. 233. Id. at paras. 245–246. P. and S. v. Poland, Application No. 57375/08 (30/01/2013). Para. 110–112 Court found violations of applicants’ Article 8 rights, and of Articles 5 and 3 for the first applicant, who was a girl of 14 who had become pregnant from “unlawful intercourse.” Id. at para. 161. Siobhan Whelan v. Ireland, Views of the Human Rights Committee under Article 5(4) of the Optimal Protocol, concerning communication No. 2425/2015, June 12, 2017. See K. de Freytas-Tamura, “Ireland Votes to End Abortion Ban in Rebuke to Catholic Conservatism,” New York Times, May 26, 2018. E. O’Loughlin, “Ireland Prime Minister Says He Will Campaign to Repeal Abortion Ban,” New York Times, January 28, 2018, www.nytimes/com/2018/01/27//world/Europe/Ireland-varadkar-abortion-ban.html (accessed March 18, 2018). E. Coyne, “Abortion Vote Set for May 25 as Bill Wording Given

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The two examples of Handyside and A, B, and C are decisions in which a consensus/margin approach was deployed to discount the rights claims by individuals out of consideration for the positions of subunit governments. In contrast, in Hirst v. United Kingdom, the ECtHR refused to defer to the United Kingdom’s decision not to permit voting by any post-conviction incarcerated prisoners.84 At issue was the application of the protection of the “free expression of the opinion of the people in the choice of the legislature,” a formulation that the ECtHR has held to require that restrictions of this implied right to vote must be proportionate. Prisoners in the United Kingdom argued that a 1983 UK provision, prohibiting persons convicted of crimes and incarcerated from voting in “any parliamentary or local government election,” violated their Convention rights. In 1998, the United Kingdom enacted its Human Rights Act, making ECHR rights domestically applicable. In 2001, the English courts – relying on a proportionality analysis – denied a challenge to the prisoner voting ban, and in 2005, in Hirst v. United Kingdom, the ECtHR first ruled on whether the 1983 provision violated the Convention right to vote. The United Kingdom argued that it was Convention-compliant because its rules were not indiscriminate voter bans. Only those whose violations were “serious enough” to result in incarceration lost voting rights, which were restored on release.85 Further, the United Kingdom asserted that it was owed deference in constituting its own electorate and therefore had the authority to exclude, temporarily, individuals imprisoned for violating its laws. As in A, B, and C, the ECtHR looked at practices around Europe. In this instance, the court counted 18 countries permitting prisoners to vote without restriction, 13 in which prisoners could not vote, and 12 permitting voting with some limits. The ECtHR opened up its counting to consider rulings in Canada and in South Africa, both of which had mandated that prisoners be permitted to vote. As for the rights at stake, the ECtHR characterized the Convention right as “vitally important” and chastised the English Parliament for providing no evidence of efforts to “weigh the competing interests or to assess the proportionality of a

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Approval,” The Times, February 21, 2018, www.thetimes.co.uk/article/abortion-vote-setfor-may-25-as-bill-wording-given-approval-w93dtx7fn (accessed March 19, 2018). Hirst v. United Kingdom (No. 2), [2005] ECHR 681. Id. at para. 77.

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blanket ban.”86 Noting that “the margin of appreciation is wide, [but] it is not all-embracing,” the Court held the United Kingdom in violation of the Convention.87 The ECtHR then left “it to the legislature to decide on the choice of means for securing” the voting rights guaranteed by the Convention.88 Given that the statute at issue dated from 1983, that it was modified to exclude pretrial detainees in 2000, and that the United Kingdom had acquiesced in other high-saliency ECtHR judgments (such as the obligation to end discrimination based on sexual orientation in its navy), one might have expected compliance. But resistance followed. In the years after the Hirst decision, political parties hesitant about involvement in Europe gained power in the United Kingdom, as the Brexit vote vividly exemplifies. The issue returned to the ECtHR in 2010. In Greens and M.T. v. United Kingdom,89 the ECtHR admonished the United Kingdom for its continuing violation of Convention rights and its failure “to abide by the final judgment.”90 Given “the lengthy delay in implementing that decision and the significant number of repetitive applications,” the Court directed the United Kingdom to propose legislation within six months to amend its felon disenfranchisement laws to be “Convention-compliant” and then to enact legislation “within any such period as may be determined by the Committee of Ministers.”91 Resistance continued, as politicians urged Britain to “stand firm against this growing abuse of power by unaccountable judges.”92 The ECtHR, in turn, moderated its approach in the 2012 ruling, Scoppola v. Italy, addressing an Italian ban on voting by prisoners serving sentences of more than five years. The majority sought to distinguish Hirst when permitting the Italian prohibition, but the lone dissenting jurist argued that the Italian rule was as “blunt” an “instrument” as the UK rule struck in Hirst. In his view, by affording a margin of appreciation to the

86 87 88 89 90 91 92

Id. at paras. 82, 79. Id. at para. 82. Id. at para. 84. Greens and M.T. v. United Kingdom, [2010] ECHR 1826. Id. at paras. 103, 111. Id. at paras. 105, 122. T. Whitehead, “European Court Gives Cameron Ultimatum on Prisoner Vote,” The Telegraph, April 13, 2011 (quoting Conservative MP D. Raab), www.telegraph.co.uk/ news/uknews/law-and-order/8446557/European-court-gives-Cameron-ultimatum-onprisoner-votes.html (accessed March 18, 2018).

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Italian law, the majority had “stripped the Hirst judgment of all of its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.”93 While that dissent sought to restore the principles of Hirst, in other cases, members of the ECtHR argued that the Hirst decision was wrong and that national governments, charged with “further realisation of human rights and fundamental freedoms,”94 ought to have the authority to decide about prisoners’ voting. The ECtHR continued its retreat from a confrontation with the United Kingdom in 2015 and 2016 by taking away practical incentives to bring ongoing violations to the Court. In the McHugh decision, responding to more than 1,000 applicants, the ECtHR found that the United Kingdom had not complied with Hirst but refused to order payment either of damages to the individuals or of the legal costs of the submission.95 In 2016, the Court responded to another 22 applicants and again concluded that a finding of the violation was “itself sufficient just satisfaction” and awarded no other forms of relief.96 The denouncement of this particular power struggle came in what could be styled a compromise but reads more like a European retreat. In the fall of 2017, The Guardian reported that the Council of Europe had reached a “deal” to ensure “compatibility with the Hirst judgment.”97 The United Kingdom proposed a few modest administrative changes that did not require the Parliament to revisit the legislation at issue in Hirst. The United Kingdom agreed to clarify to prisoners their temporary loss of the franchise, their right to register to vote, and that some individuals released on “temporary licenses” or in home detention could vote.98 According to the Lord Chancellor and Secretary of State for Justice, about 100 prisoners would be affected, and “none of them will be able to vote

93 94 95

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98

Scoppola v. Italy, App. No. 126/05 (2012) (Björgvinsson, J., dissenting). Guseva v. Bulgaria, App. No. 6987/07 (2005) sec. 2 (Wojtyczek, J., dissenting). McHugh & Others v. United Kingdom, App. Nos. 51987/08 and 1,014 others, Eur. Ct. H.R. (2015). Millbank, at Relief, para. 4. O. Bowcott, “Council of Europe Accepts UK Compromise on Prisoner Voting Rights,” The Guardian, December 7, 2017, www.theguardian.com/politics/2017/dec/07/councilof-europe-accepts-uk-compromise-on-prisoner-voting-rights (accessed March 18, 2018). Section de l’Execution des Arrets de la CEDH, Committee on Ministers, Execution of Judgments of the European Court of Human Rights, Action Plan: Hirst No. 2; Greens v. Mt; Firth and others; McHugh and others; Milbank and others: Information Submitted by the United Kingdom Government on November 2, 2017, Dh-DD (2017) 1229 02/11/ 2017, Action Plan (hereinafter Hirst 2017 Execution of Judgment).

    



from prison.”99 In November 2017, the Department for the Execution of Judgments provided to the Committee of Ministers of the Council of Ministers its views that the UK proposals were “an effective package.”100 The backdrop, of course, was not only Brexit but also that during the years before the 2017 compromise, the UK Parliament had held hearings on prisoner voting but had not voted on any of the bills altering the blanket ban.101 Moreover, Prime Minister Theresa May had called for the United Kingdom to withdraw from the ECHR,102 and UK officials before her had led efforts to limit the authority of Europe. In 2012, UK officials had led efforts that resulted in the Brighton Declaration, which, while reconfirming commitments to the ECHR, admonished the ECtHR for its failure to respect the “sovereign equality of the States,” appreciate the importance of deference through subsidiarity, and accord wide enough margins of appreciation.103 Efforts to insist on that approach came to fruition in the enactment of Protocol No. 15 to the ECHR, which links margin of appreciation to subsidiarity.104 99

100 101

102 103

104

See D. Lidington PM, Lord Chancellor and Secretary of State for Justice, Oral Statement on Sentencing, November 2, 2017, www.gov.uk/government/speeches/secretary-ofstates-oral-statement-on-sentencing (accessed August 9, 2018). Hirst 2017 Execution of Judgment; see note 84, para. 18. See, e.g., Convicted Prisoners Voting Bill, 2015–2016, www.publications.parliament .uk/pa/bills/cbill/2015–2016/0044/cbill_2015–20160044_en_1.htm (accessed March 18, 2018). Bowcott, “Council of Europe Accepts UK Compromise on Prisoner Voting Rights.” High Level Conference on the Future of the Eur. Court of Human Rights, Brighton Declaration, Eur. Ct. .., §§ 1, 2, 3, 7 & 11 (Apr. 19, 2012), www.echr.coe.int/Docu ments/2012_Brighton_FinalDeclaration_ENG.pdf (accessed March 18, 2018). See generally, A. Føllesdal, “Squaring the Circle at the Battle of Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty Over, or Has It Just Begun?,” PluriCourts, Research Paper No. 15–10 (2015), http://papers.ssrn.com/sol3/papers .cfm?abstract_id=2642403 (accessed March 18, 2018). Protocol No. 15, Article 1 provides that “the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights.” Protocol No. 15 to the Convention for the Protection of Human Rights and Fundamental Freedoms, 24 June 2013, CETS 213. As of the winter of 2018, it was not yet in force; 41 contracting parties had signed and ratified, 5 had signed but not ratified, and 2 had done neither. See Chart of Signatories and Ratifications of Treaty 213, www.coe.int/en/web/conventions/full-list/-/conventions/treaty/213/signa tures?p_auth=edPOBIRI (accessed August 9, 2018). See generally, F. Fabbrini, “The Margin of Appreciation and the Principle of Subsidiarity: A Comparison,” iCourts Working Paper Series No. 15 (2015), http://papers.ssrn .com/sol3/papers.cfm?abstract_id=2552542 (accessed March 18, 2018).

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 

In retrospect, had the ECtHR in A, B, and C maintained a focus on access to abortion, consensus (“40 Contracting States” using “health and well-being grounds”) would seem to have carried the day. Given that consensus and the political movements supportive of abortion access in many parts of the world aside from the United States, Ireland may have acceded. In contrast, dissensus would have seemed to give the United Kingdom options on how to deal with prisoner voting. The ECtHR tallied an 18–13–11 split, discounted the variation, and then looked abroad to add judgments in Canada and in South Africa to find the United Kingdom in breach. Had the ECtHR deferred, UK opponents to Europe would have had one less argument about Europe as intrusive in their “sovereign” affairs. As of this writing, given the potential for a Brexit from the Human Rights Convention, the acceptance of the Hirst deal might take some of the energy out of the proposal for a UK withdrawal. Moreover, one could look at 2005–2017 developments and argue that the ECtHR has paid a substantial price, in terms of its case law and stature, by refusing to provide a discount through its margin. One can thus see that federalism discounts are court discounts, which – when deployed – may try to protect judiciaries from conflicts with subunits. If in a self-protective mode, the ECtHR may have miscalibrated its own authority when it took up voting rights of prisoners, as well as given fodder to those within the United Kingdom who sought to distance the country from Europe. And, of course, the tumultuous times in Europe involve a multitude of variables, of which the case law of the ECtHR is but one factor. But to think about the ECtHR’s prisoner voting jurisprudence only in the context of what happened in the United Kingdom is to miss that Hirst is also a landmark in its insistence on the personhood of prisoners and part of a broader European effort to revise the treatment of prisoners. In 2003, Europe’s Committee of Ministers had called for prisoners to be dealt with in ways to maximize “individualization,” “normalization,” and “responsibility”105 in the “management of life and long term prisoners.”106 That proposal grew out of the European Committee on Crime

105

106

Council of Eur. Comm. of Ministers, Recommendation REC, §§ 34, 35, 38, p. 19: Management by Prison Administrations of Life-Sentence and Other Long-Term Prisoners (Oct. 9, 2003), https://pjp-eu.coe.int/documents/3983922/6970334/CMRec+ (2003)+23+on+the+management+of+life+sentence+and+other+long+term+prisoners .pdf/bb16b837–7a88–4b12-b9e8–803c734a6117 (accessed March 18, 2018). Ibid., § 32, p. 18.

    

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Problems, which had recommended to the Council of Europe that changes were needed to counteract the harms of long-term imprisonment.107 Prisoner voting was one way to underscore that, while prisoners lost their liberty, they did not lose citizenship, and voting was a means of getting prisoners to invest in the social order and thereby to make both prisoners and communities safer.108 As of 2005, the estimate was that about one million European prisoners were prohibited from voting.109 Once Hirst was decided, Ireland responded by increasing efforts to enable already enfranchised prisoners to vote,110 and other countries amended legislation on prisoner voting.111 Since 2005, the ECtHR has concluded that Russia,112

107

108 109

110

111

112

This account comes from Evidence Submitted 2013 to the UK Joint Committee (written testimony of the AIRE Ctr.), op. cit., p. 15–16; Joint Committee on the Draft Voting Eligibility (Prisoners) Bill: Oral and Written Evidence, UK Parliament 5 (2013) (written testimony of the AIRE Ctr.), www.parliament.uk/documents/joint-committees/DraftVoting-Eligibility-Prisoners-Bill/prisonervoting-evidvol%20(4).pdf (accessed August 9, 2018). Ibid., p. 17, 23. Article 3, Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, Eur. T.S. 009 (1954). According to the Advice on Individual Rights in Europe (AIRE) Centre, which submitted testimony to the UK Parliament in 2013, the issue of prisoner voting was “never expressly raised in the negotiations.” Joint Committee on the Draft Voting Eligibility (Prisoners) Bill: Oral and Written Evidence, UK Parliament 5 (2013) (written testimony of the AIRE Centre), www.parliament.uk/documents/joint-committees/Draft-Voting-Eligibility-PrisonersBill/prisonervoting-evidvol%20(4).pdf (accessed August 10, 2018). Ibid. (written testimony of Dr. C. Behan), p. 78. Prior to 2006, prisoners in Ireland were entitled to vote but “successive governments had failed to provide an administrative means through which they could access a ballot . . . The impediment to exercising the franchise for Irish prisoners was accordingly de facto, rather than de jure.” C. Hamilton and R. Lines, “The Campaign for Prisoner Voting Rights in Ireland,” in A. C. Ewald and B. Rottinghaus (eds.), Criminal Disenfranchisement in an International Perspective (Cambridge and New York: Cambridge University Press, 2009), p. 205. After Hirst, prison reform organizations argued “Ireland’s obligations under the ECHR ruling” and the Electoral (Amendment) Act of 2006 followed. Ibid., pp. 217–218. See also C. Behan and I. O’Donnell, “Enfranchisement and the Burden of Responsibility,” British Journal of Criminology (2008), 48. Ibid. (oral testimony of the AIRE Ctr., Lord Faulks QC, Justice and A. O’Neill QC), p. 53. (“[O]ur fellow common law countries within the Council of Europe all amended their legislation to comply with that judgment even though it was not against them and therefore Article 46(I) did not technically apply to them. Paradoxically, we are the only country that has not so far done so.”) See Anchugov & Gladkov v. Russia, App. No. 11157/04 & 15162/05, Eur. Ct. H.R. (2013).

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 

Bulgaria,113 and Turkey114 have violated prisoners’ rights through their “general, automatic, and indiscriminate” bans on prisoner voting.115 On this account, the ECtHR has been an important participant in insisting on prison reforms. Its rulings have not been limited to voting but include decisions on prison conditions in Italy, access to visitors for prisoners held in solitary confinement, and other aspects of prisoners’ rights to family life.116

Conclusion This analysis has sought to ground the inquiry into judicial power by putting court decisions in context, over time and in relationship to actors beyond the formal units in multilevel governance. As I have detailed, domains of authority are not natural artifacts but political decisions, renegotiated as conflicts emerge about the import of rights in relationships to the political identities of the governments involved. Institutional mediation can come from within and outside of courts. Through considering the multiple forms of governance (in this chapter illustrated by TOGAs) and the doctrinal options of apex courts, analyses of both judicial power and its limits are enriched. Looking at TOGAs and apex courts together makes plain that acontextual claims of a principled nationalism or localism cannot be generative. What is needed are successful mediating practices outside of courts and doctrines in courts to acknowledge the choices and the tradeoffs made through self-consciously specifying the status of rulings as temporizing measures. Needed is a disciplined examination of how definitions of subject-matter competencies change, the multiple and conflicting claims of what forwards subunit interests, and why authority ought to reside over a specific issue at a particular time at one level of 113

114

115

116

Kulinski and Sabev v. Bulgaria, App. No. 63849/09, Eur. Ct. H.R. (July 21, 2016). See generally, “Eur. Ct. of Hum. Rts., Factsheet – Prisoners’ Right to Vote” (2014), www.echr.coe.int/Documents/FS_Prisoners_vote_ENG.pdf (accessed August 9, 2018). See Soyler v. Turkey, App. No. 29411/07, Eur. Ct. H.R. (2013); Kulinski and Sabev v. Bulgaria, [2016] ECHR 685. “Prisoners’ Right to Vote,” Factsheet (July 2017), www.echr.coe.int/Documents/FS_ Prisoners_vote_ENG.pdf (accessed August 9, 2018). See, e.g., Torreggiani v. Italy, App. No. 43517/09, Eur. Ct. H.R. 293 (2013); Öcalon v. Turkey (no. 2), App. No. 24069/03, Eur. Ct. H.R. 286 (2014); Khoroshenko v. Russia, App. No. 41418/04, Eur. Ct. H.R. (2015). See generally, D. Van Zyl Smit and S. Snacken, Principles of European Prison Law and Policy: Penology and Human Rights (Oxford: Oxford University Press, 2009).

    

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government or another, or ought to be shared. The resulting state of flux is a virtue (rather than a pathology) of multilevel governance. I have dipped into cases about violence against women, immigration, reproductive rights, and voting to illustrate the conflicts across subunits about what their interests are. I have also drawn a distinction between the task of judges when deploying consensus and margin analyses, as contrasted with the essentialist approach of equating governance of a problem with a particular level of a polity. Consensus and margins build in the possibility of change and identify the relevance of law in other subunits when analyzing whether uniformity is required.117 Moreover, margins created spaces for mobilization, either to argue that the result changed the underlying norm or to support the ruling. Successful federalism discounts imagine – and count on – a future in which either the decision to discount norm implementation produces gradual realizations of shared commitments to particular forms of rights or the content of those rights is reduced. Discounts are guesses, seeking both to protect subunits and the central authority. The burdens imposed by permitting variations in rights cannot be fully assessed at the time that decisions are made to accord them. In retrospect, a particular discount could be seen as appreciating subunits’ roles in community formation and law implementation, as an innovative moment of fuzzing rights, or as the beginning of a redefinition or deterioration of certain norms, formally posited to be central.118 To argue the utility of federalism discounts is neither to underestimate the difficulty in deciding when to use them nor to endorse all the forms that they take. Even when courts seek to render decisions that are state regarding or state protective, the many voices within and across subunits, advocating opposing points of view, can complicate the task of deciding what responses are enabling of subunits. Moreover, because federalism discounts are often proffered in the name of recognizing the autonomy of a subunit and its commitments to particular views, the cacophony of positions internal to even one subunit raises questions about whether such deference is due.

117

118

See also A. Føllesdal, “Appreciating the Margin of Appreciation,” in Ad. Etison (ed.), Human Rights: Moral or Political (Oxford: Oxford University Press, 2017), 269–295. The result can resemble what R. Siegel has termed “preservation-through-transformation.” See R. Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49 (1997), 1113.

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Federalism discounts should therefore be understood as way-stations. When discounts are given – in that either the subunit has to conform to its opponents’ understanding of a right, or the rights-seeker gets protection of that right – costs are imposed. Courts ought to acknowledge these costs by stating the contingent status of such discounts, fashioned as temporizing accommodations that leave open the possibility of revisiting assessments of the rights in contest and the subunit’s commitments to them. If sanctioning gaps between norms and subunit activities, federalism discounts should both specify that the lines drawn in the moment are subject to reconsideration and explore how (if permitting less protection rather than more) to cushion the impact on individuals losing their claims. I close where I began, in the winter of 2018, when the political landscape appears so fractured as to make a cheerful account of disciplined legal analyses seem out of sync with the many efforts aimed at undermining civil political discourse and independent judiciaries. Classic analyses of federalism describe the foundings of federations as either “bringing together” or “holding together” subunits that were once identified as independent and that have joined in a common enterprise. Thus, the hope is that the institutional work in and out of court can regenerate shared understandings of the utility and morality of co-venturing to respect all individuals’ dignity and the important role governments can play in protecting not only their own sense of sovereignty but also the world of which they are a part.

12 On the Representativeness of Constitutional Courts How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining Their Independence

        

Introduction Constitutional or other rights adjudicating courts do not only resolve concrete disputes on the basis of narrowly drafted specific rules. In most constitutional jurisdictions they tend to play an independent role as jurisgenerative junior partners to political branches of government in the process of concretizing and specifying the abstract rights provisions listed in constitutions, at times becoming an independent force for social change. I have argued elsewhere1 that some of the core structural features that characterize rights review in many jurisdictions – the expansive scope of prima facie rights, the proportionality test to determine the limits of a right as well as the structure of deference doctrines – reflect a particular understanding of the point of rights-based judicial review: to ensure that acts of public authority are, both in terms of the procedure used and the outcomes generated, demonstratively justifiable to those burdened by them as free and equal persons. If such a judicial role is legitimate in liberal constitutional democracies, it can only be because courts, too, are representative institutions, alongside other politically more responsive institutions. But if judges are not elected, in virtue of what are they representative? What, more specifically, are the variables that might raise their level of representativeness, without unduly

1

See M. Kumm, “The Idea of Socratic Contestation and the Right to Justification,” Law and Ethics of Human Rights 4(2) (2010), 139–175 and, more recently M. Kumm, “The Turn to Justification: On the Structure and Domain of Human and Constitutional Rights,” in Adam Etinson (ed.), Human Rights: Moral or Political (Oxford: Oxford University Press, 2018), ch. 7.

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 

undermining the impartiality and independence that is required for courts to successfully play this role? In the following I distinguish between four complementary dimensions of representativeness – volitional, identitarian, argumentative, and vicarious – to analyze claims about the representativeness of courts and ways of enhancing it.2 I argue that it is not desirable to increase courts’ volitional representativeness (strengthening the electoral link between judges and the people). And even though identitarian representativeness (ensuring that various groups defined in terms of race, ethnicity, gender, religion, nationality, etc. are represented on the court) is important in contexts of historical practices of exclusion, the focus of constitutional designers should not be limited to these factors. Among the normatively salient variables that should be the focus of constitutional designers is argumentative representativeness, implicating questions of methodology, style, and structure of judicial opinions. Furthermore vicarious representativeness, which concerns the constitutional embeddedness of judicial institutions in the political system and, more specifically, the mechanisms that allow political branches to challenge decisions of courts, should be among the factors on which attention is focused. The following seeks to provide an analysis of a variety of central institutional variables concerning judicial review and how they matter for the representativeness of courts. Its purpose is to increase awareness for the variety of institutional choices that determine whether judicial power is adequately representative in a given context. It does not seek to provide either a comprehensive discussion or assessment of any one of these variables or a developed theory of what constitutes the right institutionalization of judicial power in a liberal constitutional democracy. But it does want to change the nature of the debate on judicial review. Even if one believes, as I do, that for all practical and theoretical purposes the debate on judicial review has in principle been settled in its favor,3

2

3

These distinctions partly overlap and are partly distinct from the four forms of representation – formalistic, descriptive, symbolic, and substantive – distinguished by Hanna Pitkin in her classical work, The Concept of Representation (Los Angeles: University of California Press, 1967). There have been some high-caliber last-ditch efforts to keep the debate alive; see J. Waldron, “The Core Case against Judicial Review,” Yale Law Journal 115 (2006): 1346–1406 and R. Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007). The case for judicial review is based both on consequential considerations – patterns of outcomes tend to be improved – as well as outcome-independent grounds of principle relating to the

   

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the question of how to adequately institutionalize judicial review has barely begun.4

Volitional Representativeness: Judges between Judicial Self-Selection and Democratic Election Courts, unlike legislatures, are generally not elected. But courts, too, are volitionally representative in the following sense: They derive their authority from a chain of legitimation that is ultimately anchored in “the people.” No court could plausibly claim to be a representative institution if its judges were appointed by way of an occult practice of philosopher kings who select those worthy for highest judicial office among themselves (think of cardinals selecting the pope in the Catholic Church) or by arbitrary sacred traditional rules claimed to go back to time immemorial. A borderline case exists in which constitutional court justices are effectively selected by other judges.5 Even such an arrangement is minimally volitionally representative to the extent it is grounded in an original constitutional or legislative decision to select and appoint judges that way. But volitional representativeness is diminished close to the vanishing point when a court constitutionally immunizes the principle of judicial self-selection from political contestation, as the Indian Supreme Court has done.6 If judicial self-selection is claimed to be a

4

5

6

institutionalization of a right to justification, see Kumm, “The Idea of Socratic Contestation.” See also A. Harel, Why Law Matters (Oxford: Oxford University Press, 2014) and J. Weinrib, Dimensions of Dignity (Cambridge: Cambridge University Press, 2016). Besides discussions on the relative merits of centralized and decentralized review – see Victor Ferreres Comella, Constitutional Courts and Democratic Values (New Haven, CT: Yale University Press, 2009) – the current focus is on the distinction between traditional forms of judicial review and what Steven Gardbaum has called “the Commonwealth Model” of judicial review; see his The New Commonwealth Model of Constitutionalism: Theory and Practice (Cambridge: Cambridge University Press, 2012). For the latter see also N. Duxbury, “Judicial Disapproval as a Constitutional Technique,” International Journal of Constitutional Law 15(3) (2017), 649–670. In India, e.g., a judge is appointed to the supreme court by the president of India on the recommendation of the chief justice of India, the four most senior judges of the court, and the most senior judge from the high court of a prospective appointee. On October 16, 2015 the Indian Supreme Court, by a majority of 4–1, struck down the National Judicial Appointment Commission Act 2014 meant to replace the two-decadeold system of judges appointing judges in the higher judiciary by way of constitutional amendment in Article 124 A Indian Constitution, as an unconstitutional constitutional amendment.

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necessary feature of judicial independence and judicial independence is made part of the unamendable basic structure of the constitution, then courts have become independent in a way that effectively cuts all links to volitional representativeness. But even though it is not rare for judges to be involved in the selection process for constitutional court positions, where they do have a formal say they are typically outnumbered by political representatives and thus have no majority.7 At least in mature liberal constitutional democracies, constitutional court judges should not select themselves and play at most a consultative role in the political process of judicial appointments to ensure an adequate level of volitional representativeness. In many jurisdictions judges are appointed by elected representatives. Those who do the appointing can be different chambers of parliament, the executive or complex combinations.8 The electoral link is indirect and attenuated, but it still exists and its relevant for the representativeness of courts. In this way judges are no different from the president and senators under the original US Constitution. They, too, were considered to be representatives, even though their selection was the result of choices made by intermediaries (the Electoral College and state legislatures, respectively). Volitional representativeness is a question of degree and not a categorical feature that legislatures have and courts lack. Even though the degree of volitional representativeness of courts could be increased in a number of ways, it is not easy to increase the representativeness of judges without disproportionately sacrificing countervailing concerns. We have good reasons to live with judicial institutions, whose degree of volitional representativeness remains as low as it has traditionally been. It is not desirable to have judges elected because elected judges, even if elected for only one term, are likely to have sacrificed their independence or at least the appearance of independence as the result of the competitive electoral process.9 Furthermore the possibility to be reappointed – a 7 8

9

This is the model often chosen by states on the Iberian Peninsula and South America. For European countries see Alec Stone Sweet, Governing with Judges (Oxford: Oxford University Press, 2000), p. 49. For a critical discussion of the appointment procedures to supranational European courts, see M. Bobek, Selecting Europe´s Judges: A Critical Review of the Appointment Procedures to the European Courts (Oxford: Oxford University Press, 2015). In the United States, where in some states judges are elected, the practice finds its supporters; see e.g., L. Gibson, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy (Chicago: Chicago University Press, 2012), providing empirical

   

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practice that is commonplace in particular with regard to international courts – also increases the representativeness of judges, given that they could be evaluated on the basis of their record and thus be held accountable. But this is exactly the kind of accountability that is in direct conflict with the independence of judges and is not generally desirable: To play their particular judicial role, it is central that judges do not think about their reappointment when making decisions in politically disputed cases. There are two ways in which the volitional representativeness of courts might plausibly be increased without disproportionately undermining countervailing concerns. First, public hearings as part of the appointment process might give greater weight to the link between judges and the people. Yet the US experience with such hearings in the past decades suggests that it is not easy to design hearings that might fulfil a useful function. Either politicians ask specific questions that a future judge concerned with her future independence should not and rightly will not answer, or the questions and responses are so general or specifically legalistic that they are of little value for strengthening the representative link. There have been proposals that suggest strategies for making such hearings more meaningful, but it is not obvious that public hearings might significantly increase the representativeness of courts. More promising is to establish shorter rather than longer tenure terms to strengthen the volitional representativeness of courts. Shorter terms might be useful to ensure that judges are sufficiently attuned to contemporary mainstream sensibilities as reflected by majorities. Of course, the appointment cycles of judges should be nontrivially longer than those of elected representatives, clearly signaling their distance from the run-ofthe-mill majoritarian electoral politics. But It makes a difference whether judges are appointed for 9 or 12 years or whether they receive life tenure (which, in the United States leads to an average tenure of more than 25 years for the immediate predecessors of the current crop of Supreme Court justices). It may be an empirically contingent question whether in any particular political context a shorter term is more likely to ensure that judges will be attuned to contemporary sensibilities than a long term (in particular life tenure). It is perfectly plausible that some judges on the court for a quarter of a century are more empathetically gifted and discursively engaged than a young ideologically blindsided judge. But evidence for the claim that elections tend to boost institutional legitimacy of courts, despite slightly negative effects of some campaign activities.

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for the assessment of volitional representativeness, what matters is not the degree to which judges are sensitive to contemporary sensibilities as an empirically contingent fact, but the extent to which the makeup of a bench can be understood as the result of an explicit choice by politically accountable actors as a matter of law. And here, clearly a shorter term increases the occasions on which political will can determine the makeup of the bench.

Identitarian Representativeness Identitarian representation refers to basic salient social traits in virtue of which judges claim to represent those to whom their decisions are addressed. Candidates for relevant traits are race, gender, religion, ethnicity, nationality (particularly in the international context), or class. There is a link between identitarian representation and judicial legitimacy, but it is limited and qualified. Identitarian representation matters in two ways, one of general relevance and the other of particular salience in the international context. First, it is important that present or past practices of exclusion and discrimination should not be symbolically reinforced by the makeup of the court. The makeup of the court should reflect an effort to overcome such historical patterns of discrimination and exclusion. Second, whether there have been or continue to be patterns of exclusion, the makeup of the bench ought to be such that all parties can plausibly believe that their point of view will be appropriately understood and assessed. Even absent past or present practices of discrimination and exclusion, this may be an issue for international courts, when judges may lack all familiarity with the culture and local context of a state that happens to be a party before it. For international courts it is generally useful to have a judge on the bench who is a citizen of the state that is a party to the dispute, to enhance judicial deliberations by making nonobvious culturally sensitive contextual information available. Note how, in an ideal social world where there is no prejudice against any social groups and an equally deep and empathetic understanding of all of them, it would be misguided to link the attractive idea of having a wide range of experiences reflected on the court to traits such as race, ethnicity, nationality, class, and the like. These group markers are a bad proxy for the presence of relevant wide-ranging experiences and empathetic dispositions, given significant variances even within the group defined with reference to these traits. But in the world we live in,

   

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identitarian representativeness provides important assurances against legitimate concerns of exclusion.

Argumentative Representativeness Even if courts are less volitionally representative then legislatures, and identitarian representation is of only qualified significance, courts can claim representativeness also in virtue of the arguments they justify their decisions with. There is also argumentative representation. Argumentative representation exists, if and to the extent the courts, trying to find the correct answer to the legal question brought before them, engage in a practice of public reasoning that is attuned to – even if not necessarily deferential to – arguments that played a central role in the political process and that connects to beliefs held by those to whom the law is addressed.10 Argumentative representation can be realized to a higher of lower degree, depending on the interpretative methodology adopted, the style of opinion writing, and the role of plural (concurring, dissenting) opinions.

Interpretative Methodology Modern constitutions are characterized by the fact that they do not only contain rights in the forms of ordinary rules (e.g., “no person may be subjected to the death penalty”) but also often relatively abstract principles (“no person may be subjected to unreasonable punishment”). Generally the jurisprudence of constitutional courts tends to be focused on the specification and concretization of those abstract principles. The question is how courts go about the task of ascertaining the meaning of these abstract principles for the purpose of resolving concrete cases before them. In terms of interpretative methodologies, it is useful to distinguish between originalist-, conventionalist-, and public reason– oriented approaches. Originalist methodologies are focused on persons, events, and contexts connected to the original enactment of a constitutional provision and locate the legitimacy of a law in the will of the original enacter. They often lead to arcane and disputed historical 10

With the focus on public debates, the conception of argumentative representation here is different from the one defended by Alexy, which is focused on ideal argumentation. See R. Alexy, “Balancing, Constitutional Review, and Representation,” International Journal of Constitutional Law 3(3) (2005), 572.

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accounts based on law office historiography that may be unresponsive to the range of normative concerns and debates as they relate to the constitutional principle in the present. Conventionalist methodologies are focused on analyzing text, precedent, or established conventions – anything that can be conventionally referenced as legal authority or as socially accepted as law. Conventionalists may include the original circumstances of the enactment of a legal norm as a relevant fact for the interpretation of a norm, but it is just one besides a range of others. The defining feature of conventionalist approaches is that they seek if not to exclude at least to minimize the role of general practical reasoning in legal decision-making. Because of the sharp distinction between arguments connected to legal pedigree and conventions, on the one hand, and policy arguments, on the other hand, such an approach is not and has no ambition to be argumentatively representative, but to make do without the kind of general arguments that characterize public debates. Across liberal constitutional democracies conventionalism plays only a modest role in constitutional adjudication because of the often highly abstract nature of the norms that courts are called upon to interpret. In constitutional adjudication, because of the lack of pedigreed resources for determining decisions, conventionalist sensibilities often push toward minimizing the judicial role and granting considerable deference to political branches, if the lack of legal authority is not compensated for by strong social support for a specific legal interpretation.11 The most widely used approach among rights enforcing courts in liberal constitutional democracies is what I call a public reason–oriented approach. That approach also includes reference to legal authority, where there is legal authority on point, but it does not fear engagement with more open forms of general practical reasoning. Structuring the judicial rights inquiry by reference to some version of a proportionality test, courts assess whether the measures taken by public authorities are susceptible to a reasonable justification with regard to the burdens imposed on the rights bearer. When a court can openly ask whether there is a legitimate purpose for the government to act, whether the government chose the least restrictive of equally effective means, and whether on balance the burdens it imposes on a rights bearer are justified with reference to what 11

This is apparently the case across Nordic countries, where courts striking down legislation on the grounds that it violates abstract rights provisions guaranteed in the constitution is a relatively rare event; see J. Nergelius (ed.), Nordic and Other European Constitutional Traditions (Leiden, The Netherlands: Martinus Nijhoff Publisher, 2006).

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is gained in terms of furthering a legitimate purpose, a court opens up the possibility engage-and-assess arguments in a way that is responsive to publicly articulated concerns of all relevant parties.

Styles of Opinion Writing Argumentative representativeness is also a function of the style of opinion writing, not just of the methodology of legal interpretation used. To take on the extremes, there is the way that the French Conseil Constitutionnel and Conseil d’État justified its decisions until the 1990s: The language was terse and formal, and opinions were short. Reading these opinions did not give the reader any idea of the range of considerations that judges inevitably had to engage to make a wellinformed decision, and it does not make transparent the considerations that ultimately made the judges decide the way they did. On the other hand, you have the highly discursive style of US Supreme Court justices or UK Supreme Court judges. Here the arguments are presented in a more elaborate developed way, engagement with counterarguments takes place, and opinions may on occasions reach book length. The latter style of writing scores higher with regard to argumentative representativeness than the former.12

A Unitary Court or a Plurality of Opinions Finally, a court required to speak only in one voice tends to lead to less representative argumentation than decisions that allow for concurring and dissenting decisions. A judicial practice allowing for concurring and dissenting opinions is more likely to reflect the plurality of views among the constituency than a practice in which the court appears only as a unitary actor, providing one judgment endorsed by the court as a whole.

Vicarious Representativeness Vicarious representativeness is a function of the constitutional embeddedness of judicial institutions in the political system and, more specifically, the mechanisms that allow political branches to challenge decisions 12

For an analysis and comparison of different styles of opinion writing, see M. Lasser, Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy (Oxford: Oxford University Press, 2004).

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of courts. Vicarious representativeness of courts exists to the extent a judicial decision can be regarded as endorsed by the legislature implicitly. The easier it is for the legislature to enforce its will against the courts, the more plausible it is to assume implicit legislative endorsement. The easier it is for the legislature to overturn the decision by the court, the more the decision of the court can be regarded as vicariously representing the considered judgment of the legislature, if the legislature does not overturn it. Vicarious representativeness is thus a function of the rules that govern the interaction between courts and legislatures. It is very high, if legislatures are complicit in the act of revising their previous decision by implementing the court’s decision (as in the United Kingdom, where courts can only issue a declaration of incompatibility). It is still high if the legislature can override the decision of the court using an ordinary majoritarian procedure or a procedure only minimally more demanding (like in Canada), it is lower, if a qualified majority is necessary, and such overrule must take the form of a formal constitutional amendment (such as, e.g., in Germany, South Korea, Mexico, and South Africa), and it is negligibly low in a country where the requirements relating to constitutional amendment are more cumbersome still (like the United States). Vicarious representativeness is lowest when the court decides that a particular decision is outside of the purview of legitimate constitutional amendment altogether, invoking either a constitutional eternity clause or some version of a “basic structure doctrine.”13 This is not the place to discuss what level of vicarious representativeness is desirable. Here it must suffice to make two basic points. First, if it is the point of judicial review to ensure that all burdens imposed on individuals must ultimately be justifiable to them in terms that they might reasonably accept, and if individuals are to have a right to have the issue determined by independent and impartial institutions, then those institutions must also have the authority to provide an effective remedy. Such a remedy does not exist in New Zealand or the United Kingdom, where courts do not have the authority to set aside legislation but require the support of the legislature to give effect to their decisions. Because the effect of the Court’s decision here depends on the legislature explicitly endorsing it, the level of representativeness may be very high, but it remains a deficient way of institutionalizing judicial review because it denies individuals an effective 13

On the spread of the idea of unconstitutional constitutional amendments in constitutional practice, see Yaniv Roznai, Unconstitutional Constitutional Amendments (Oxford: Oxford University Press, 2017).

   

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remedy. Second, even if there are many good reasons why constitutional courts should use the doctrine of unconstitutional constitutional amendments sparingly, in principle this is a doctrine that has strong support in the foundational commitments of constitutionalism. Even the constituent power of “the people” is one that is constituted, regulated, and circumscribed by the idea of self-government of free and equals. Constitutional provisions that can’t plausibly be understood as specifications or concretizations of this idea can’t plausibly claim authority of free and equals. The idea of vicarious representativeness clearly matters. But what this limiting and extreme examples illustrate is that, in the end, endorsement by the legislature or even by qualified majorities is not a criteria that trumps all other criteria.

Conclusion The debates about the legitimacy of judicial review may well be over. In principle there is nothing illegitimate about constitutional courts having the authority to review all acts of public authority, including legislative acts, with regard to the question whether they violate individual rights. But that does not mean that the institutionalization of judicial review does not raise difficult issues. Courts, like legislatures, are representative institutions. But the degree to which they are depends on a variety of institutional choices. The point of this contribution is to bring into focus some core variables in the design of judicial institutions and describe their relevance to the representativeness of judicial review. Given the powers of constitutional courts in liberal constitutional democracies, these are the issues that debates on judicial review would do well to focus on.

13 After the Heroes Have Left the Scene Temporality in the Study of Constitutional Court Judges

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Introduction The Global Review of Constitutional Law for the 2016 entry on Indonesia states, “[T]he Court has retreated from the boldness of the first-generation Court. In the period after the first decade of the Constitutional [Court], it became common to refer to the Indonesian Constitutional Court as composed only of ‘second-rate judges.’”1 Later the report refers to Justice Jimly Asshiddiqie, a towering figure in the first-generation Court. Suitably adapted, similar sentences could be written about a fair number of other constitutional courts at some points in their histories: certainly Israel and Hungary, probably South Africa, and perhaps the United States. And major figures – heroic judges – would similarly be identified: Aharon Barak and László Sólyom; Arthur Chaskalson, Albie Sachs, and Richard Goldstone; and John Marshall and Earl Warren. This chapter explores the phenomena such statements identify – particularly the ideas that there can be first- and second-generation courts and that second-generation courts are less distinguished than their predecessors.2 The chapter has three sections. First, I ask why heroic judges come on the scene in the first place, focusing on the years of the first generation, I thank David Law for comments on a much shorter version of this chapter, and Rosalind Dixon and Vicki Jackson for comments on a more complete version. 1 S. Hendrianto and F. Siregar, “Entry,” Global Review of Constitutional Law (2016), 93–97 [93]. 2 I do not purport to offer a full “theory” of these phenomena, but only some remarks aimed at identifying recurrent features. So, e.g., the US story after the end of the Warren Court fits the patterns described in the section on “The Successor Courts,” but the Warren Court’s emergence does not fit the patterns described in the section “Why Do Heroic Judges Come on the Scene?”

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the ones immediately succeeding a substantial constitutional transformation.3 In suggesting some answers to that question, I also suggest why some early constitutional courts are not populated by heroic judges. Second, I examine what happens next, that is, what happens when the heroic judges leave office. I sketch two accounts. The first is that the political system as a whole strikes back at the court for its early heroism (“backlash”); the second is that there is a regression to the mean of ordinary, non-heroic judges. Finally, I examine what might be thought of as non-heroic courts. In addition to discussing, briefly, courts that never accomplish much, I address courts that appear to have engaged in sustained performance at a high level or at more or less ordinary levels of achievement. The conclusion emphasizes the importance of attending to temporality in studying who sits on constitutional courts and what those courts do.

Why Do Heroic Judges Come on the Scene? What leads us to identify some judges and courts as heroic? In general, of course, the metaphor does not refer to physical or even moral courage.4 Rather, it refers to the substantial, innovative, and important work the judges and their courts do, often in cases dealing with matters central to a nation’s politics and identity. Further, their actions take sides on these matters, accepting the claims made by proponents of one policy or vision against claims supported by other important figures in national politics. Often, but not always, their actions will reject as unconstitutional those actions taken by major political figures such as the nation’s president or a parliamentary leadership that has a significant majority behind it. Heroic judges emerge from a combination of circumstances, individuals, and constituencies. In the years immediately following a constitutional transformation, much work remains to be done to flesh out the new system. A great deal of that work will be done by executive officials and legislators. They will engage in practices that, in the terms used in contemporary US constitutional theory, construe the constitution by constructing institutions that reflect their judgment about the 3

4

Sometimes the constitutional transformation occurs in an ongoing constitutional system. When it does, the judges of interest are not the “first” generation but rather the first ones after the transformation. With that qualification the label remains useful. Sometimes it does, though, as in the case of Chief Justice Iftikhar Chaudhry during the events associated with the Lawyers’ Movement in Pakistan.

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constitution’s meaning. Organic laws, for example those dealing with the electoral process, will choose among contested understandings of the constitution’s terms. Yet, not all the work to be done in the early years must be done by the political branches. With time short to build the new system, parliaments and executive officials might not be able to get everything done that needs to be done. Either expressly or implicitly they may allocate some of the work to the constitutional court. They accept in advance the possibility that the court might devise solutions they would reject, on the theory that solving the problem in some way is preferable to letting it fester. And, when the court performs that work, both the work and the court may be seen as important contributors to constitutional development. At the time the work is done, the court might be seen as working alongside parliament and the executive in building the system. In retrospect, if the system works well, what the courts did may be taken as contributing to that success. Some of the work that must be done involves developing the rules for coordinating the institutions. In presidential or semi-presidential systems, for example, the allocations of authority to president and parliament need to be defined. Similar questions of coordination will arise with respect to a range of institutions. The political actors, though, are not disinterested observers whose sole goal is to develop the constitution so that it works effectively: Each is likely to seek an allocation of authority that favors them. Courts can provide a somewhat more disinterested view. Again, the political actors may recognize this and implicitly or explicitly authorize the court to perform the task of coordination. And, again, each political actor may resign itself to losing some authority it would prefer to have; the actors may hope that the court will put things in an order that is acceptable overall. Alternatively, the court might simply take that role on for itself; then, having ruled one way or the other, it will find itself with an ally in the branch that it favored.5 The treatment of capital punishment in South Africa and Hungary illustrates how reasonably explicit allocations to the courts occur. Constitutions written in the late twentieth century pretty much had to take a position on capital punishment rather than leaving the choice to 5

This alternative seems to me less likely when there is a dominant but not factionalized political party, as appears to have been the case in South Africa in the 1990s, because the party’s leaders can work out the allocations and foist them on parliament and the executive.

     

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authorize or ban it to ordinary legislation. In both nations, important political actors divided over capital punishment’s permissibility; roughly speaking, the public and those who purported to speak for them favored capital punishment and elites whose support for the constitution was necessary opposed it. In South Africa and Hungary those involved in the constitutional transformation decided to leave the issue to the courts, which held capital punishment unconstitutional.6 South Africa also illustrates how decisions to authorize judges to act heroically can be made implicitly. In 1995, the Constitutional Court held that President Nelson Mandela’s actions in organizing elections in the Western Cape province were outside the scope of his constitutionally authorized powers.7 No one anticipated this specific action, and presumably Mandela thought he had the authority to take the action. Mandela’s decision to accept the judgment is taken as an important event in establishing the role of the Constitutional Court in the nation’s constitutional system. Yet, to the extent that heroic judges act because they have been explicitly or implicitly authorized to do so as part of the process of constructing a constitution, we can see one reason that there is a falling off in the second generation: The major work of constitution building having been completed, political elites no longer find it useful to allocate important work to the courts. Put another way: The early collaboration among the branches builds governing capacity in the political branches, after which the leaders of the political branches believe that they have the ability to do the rest of the job of constructing the constitutional system. Another dynamic may contribute to the falling off. A new or transformed court can be a self-interested actor in the overall constitutional system. Its members may want to establish themselves as significant actors in the political system. To do so, they must be “active” judges. In particular, they must occasionally set themselves against the currently ruling coalition by invalidating some policies important to that coalition. Some elements of that coalition are likely to be annoyed by having the 6

7

In South Africa the political leadership of the African National Congress was opposed to capital punishment, and rather clearly anticipated that the Constitutional Court would hold it unconstitutional. I am less familiar with the political circumstances in Hungary, but, given the division between elites and the general population over capital punishment, those who authorized the constitutional court to consider capital punishment’s constitutionality should have been confident about the likely outcome. Executive Council of the Western Cape Legislature v. President of the Republic of South Africa, 1995 (4) SA 877 (CC).

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judges thwart their policy goals.8 So, in taking “heroic” actions so as to establish the court as an important actor, the court sows the seeds for resentment and backlash. Heroic courts often have one or two members who stand out. These are the judges who give their names to judicial eras: the Barak Court, for example. Ordinarily their role on the court could have been anticipated when they were appointed. Some will have been leading figures in writing the constitution, either as politicians or as academic consultants.9 Their role in the framing gives them especial authority in interpreting it. Others will have been “obvious” appointees, with reputations for “wisdom” about the constitution so great that it would be scandalous to pass them over for appointment.10 Finally, sometimes there will be a pent-up “supply” of high-quality lawyers available for appointment – people who for principled reasons kept a low profile prior to the constitutional transformation or who actively promoted that transformation. The first South African Constitutional Court, for example, was staffed by a group of justices almost all of whom were of extraordinarily high quality precisely because they had refrained from deep involvement with the apartheid regime or had provided legal expertise to the regime’s opposition. Finally, some judges respond to demands from constituencies in the public and in important components of political coalitions for the articulation of a particular constitutional vision. Some judges might elicit support from such constituencies, satisfying a latent but not wellexpressed demand for the judge’s constitutional vision. Aharon Barak could be an example, supported by what might be quite roughly described as the more secularist elements in Israeli civil society.11 When judges 8

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This may be particularly true where there is a dominant political party, although the existence of factions with such a party might give the court some breathing space. Manuel José Cepeda of Colombia is an example. He served as a high-level adviser while the constitution of 1991 was being developed and was appointed to the Constitutional Court in 2001. For a general discussion of drafters who are appointed to constitutional courts, see R. Dixon, “Constitutional Design Two Ways: Constitutional Drafters as Judges,” Virginia Journal of International Law 57(2017), 1–44. E.g., Aharon Barak received the Israel Prize in 1975, generally described as the nation’s highest honor, three years before he was appointed to the Supreme Court. My personal view is that Luis Roberto Barroso of the Brazilian Constitutional Court fits into this category as well. In the United States the usual example of a jurist appointed to the Supreme Court because failing to do so would have been scandalous is Benjamin Cardozo, whose tenure was so brief that he had no chance to become a heroic judge of the sort considered here. For the United States, Antonin Scalia might be judicial hero in this sense, though my view is that it is too early to be confident about that judgment.

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interact with constituencies in these ways, they might become heroes to those constituencies even if they antagonize other constituencies. If the constituencies to which these judges appeal come to control the political branches, the judges will be retrospectively heroized. Even without gaining control overall, the constituencies might have enough power to constrain the appointment of successor judges. And, if the constituencies remain in the minority, the judge can become a focal point for persistent efforts to challenge the court – one source of backlash. As the immediately preceding comment suggests, some of the circumstantial, individual, and constituency-associated reasons for the emergence of heroic judges and courts matter when we turn to what happens next.

The Successor Courts I think it relatively common to discuss second-generation courts as the result of a backlash against the first-generation courts. The outlines of the story are these: The first-generation court exercises constitutional review aggressively, and in doing so it sets itself against important political actors who retain power even as the heroic court fades from the scene; that generates a backlash against aggressive constitutional review; the second-generation court retreats under political assault and substantially reduces the intensity of the review it exercises over legislative and executive policy. Backlash takes several forms: through restrictions on the constitutional court’s jurisdiction, as in Hungary and occasionally in India; through changes in methods of judicial selection, as has been tried in Israel and India; and through the choice of new members of the courts. Restricting jurisdiction and changing judicial selection methods have the advantage over new appointments to the extent that they offer permanent solutions to the “problem” posed by heroic courts. They appear to be more difficult to implement, though, perhaps because they require legislation that typically must pass through numerous “veto gates,” some of which might be controlled by the court’s supporters. They may also run up against constitutional barriers in jurisdictions with a reasonably well-developed jurisprudence dealing with unconstitutional constitutional amendments.12 The appointment process is easier to use, 12

The attempt in India to displace the Supreme Court as the primary actor in appointments to that Court foundered on that doctrine. See Supreme Court Advocates on Record v. Union of India, 2015/15 (October 16, 2015).

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largely because vacancies occur naturally as judicial terms expire or judges pass away. The judges’ departures, though, need not occur quickly or in a way that allows a backlash to manifest itself.13 Even when using the appointment mechanism the political branches might sometimes have to depart from established norms of appointment. In South Africa, for example, one manifestation of backlash was the decision to name the thinly qualified Justice Mogoeng Mogoeng to be chief justice, passing over the senior associate justice who, under prior norms, would have been the natural appointee. The “backlash” story is, I believe, particularly attractive to political scientists because it deals with the interaction between electoral and judicial politics. Initially, the leaders in the political branches may accept the court’s actions as part of the process of building governing capacity, but their patience may run out. This may be especially true when the court continues to adhere to its early vision of its role, seeing invalidation of policy as a routine and expected matter, when political leaders think that the time has come for the courts to retreat so that the political leaders can occupy a greater portion of the policy-making space. When backlash occurs, new members of constitutional courts are appointed on the understanding that they will not engage in aggressive constitutional review.14 In addition, the rhythm of electoral politics may differ from that of judicial replacement. For good reasons, constitutions typically provide for elections at intervals shorter than the normal tenure of constitutional court judges – four to seven years for a parliamentary term, for example, whereas it is 12 to 15 years for judges on the constitutional court. The effect is that the leaders who willingly supported the allocation of important decisions to the courts may be displaced before the judges

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The vacancy might occur when a judge who supports the governing coalition leaves while judges who oppose it remain on the court. This has been the experience in the United States for decades: Presidents have not had the opportunity to make transformative appointments because “liberal” justices have left the Court when Democrats were president, “conservative” ones when Republicans were. (The exception is the situation that faced President Barack Obama when Justice Antonin Scalia passed away, but in that case Republicans used their control of the Senate to block Obama from placing his choice on the Supreme Court.) The denunciation of the South African Constitutional Court for failing to collaborate with the African National Congress’s leadership in pushing forward a program of transformative constitutionalism, though it has quite complex roots, illustrates this dynamic.

     

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are. The newly elected leaders may well see the constitutional court’s judges as affiliated with politicians the voters have repudiated.15 Sometimes the backlash takes time to achieve political success. The backlash to the Warren Court in the United States built force over time, but did not succeed until perhaps two decades after Warren’s retirement (and, in the eyes of some, has not succeeded yet). The backlash against the Barak Court in Israel has not yet fully succeeded, though it may be on the verge of doing so. The backlash against the Hungarian Constitutional Court succeeded decades after Sólyom and his colleagues left the Court. What happens in the interim? Consider first that heroic judges are rarely replaced by what we might describe as counter-heroic judges. The heroic judge aggressively advanced a specific constitutional vision; a counter-heroic judge would aggressively advance a contrary vision. There may be structural reasons for this. When the heroic judge leaves the court, he or she will have generated a constituency that accepts the heroic judge’s constitutional vision, and that constituency will resist the appointment of a counterheroic judge. As backlash builds, attempts may be made to appoint counter-heroic judges, but they may fail. Although the timing does not fit precisely with this account, two examples are suggestive: the failed nominations of Robert Bork to the US Supreme Court and of Ruth Gavison to the Supreme Court of Israel. Bork would have been a counter-heroic judge to Earl Warren, Gavison to Aharon Barak. And, in both cases, supporters of the heroic judges had enough political power to block the nominations. The new governing coalition has the power to appoint someone to replace the heroic judge but does not have enough power to substitute a counter-heroic one.16 The result is that heroic judges will be replaced by more ordinary ones.

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This is one implication of various versions of “insurance” theories of why constitutional courts are created. It is easiest to see in connection with Ran Hirschl’s “hegemonic preservation” account, in which constitutional courts are created to insulate, at least for a time, the policies of an elite that foresees its replacement. The long and as yet not fully successful struggle for political control over the Supreme Court of Israel is exemplary here: One segment of the nation’s political elite finds itself lodged in the Supreme Court, and supported by an important fragment of civil society, while another segment controls the parliamentary leadership. In her comments on a draft of this chapter, Rosalind Dixon suggested that a successful appointment of a counter-heroic judge would produce what she calls a legal backlash – an alternative constitutional vision to the heroic court’s – in contrast to the political backlash I discuss in the text.

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Rosalind Dixon and Tom Ginsburg provide the useful term renegotiation to describe these processes.17 Negotiation among political actors produces a structure and composition of the first-generation court that reflects the balance of political forces at that time. Subsequent appointments reflect the balance of power at the time the new appointments occur. A previously dominant political coalition may have been displaced by another that hopes to change the constitutional court’s direction, but the older coalition may retain enough power to place limits on how far the new coalition can go.18 In addition, the new governing coalition might affirmatively prefer to appoint ordinary judges. Almost by definition, such judges will operate within rather conventional bounds; that is, after all, what makes them ordinary. They are unlikely to break new constitutional ground, and their course of decision is likely to be relatively predictable, which is what the new coalition’s leaders want. The “backlash” argument, no matter what its form, emphasizes politics. There might be more mundane reasons why second-generation courts are not heroic. I begin with the observation that most judges on heroic courts are ordinary – mediocre, in the sense that they are neither especially talented nor especially untalented. That is, the courts are heroic because of the leadership of one (sometimes two) extraordinary judges. Consider in this connection that, in my view, scholars of comparative constitutional law would struggle to name even one other judge who served with Aharon Barak (though of course scholars of domestic Israeli constitutional law could do so easily). Similarly, I think, with other heroic courts – or, more precisely, courts led by heroic judges.19 Simply put, the supply of extraordinary judges is thin. Even politicians who wanted to replace one heroic judge with another will find themselves hard-pressed to locate appropriate candidates.20 Extraordinary judges

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R. Dixon and T. Ginsburg, “The Forms and Limits of Constitutions as Political Insurance,” International Journal of Constitutional Law 15.4 (2017), 988–1012. Ibid. refers to the possibility that the “court may also already have an independent degree of public political support,” which I take to refer to something like “diffuse” political support untethered to political coalitions. As noted previously, the first South African Constitutional Court is an exception to this observation. The rhetoric associated with Supreme Court appointments in the United States denies this reality. For the past several decades those who supported virtually every nomination characterized him or her as extraordinarily talented, one of the best judges in the country, and the like. Judge Richard Posner’s observation that on no realistic account would one

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

will be replaced by mediocre ones, faut de mieux. Or, to use more formal terms, we can expect regression to the mean in judicial appointments as in everything else.21

Non-Heroic Courts: Sustained Performance at Low and High Levels To adapt a phrase from Louis Henkin, most constitutional courts are ordinary courts most of the time.22 They are, one might think, simply doing their job; heroic courts are deviations from the norm, which is why regression to the mean occurs. This state of affairs is probably a good thing: In a reasonably wellfunctioning political system, most problems ought to be, and are, handled reasonably well by legislatures and executive officials. In such circumstances, constitutional courts ought to have rather little to do. Of course, slipups occasionally occur, and constitutional courts are available to deal with them. But, overall, the work of a constitutional court in a reasonably well-functioning system will be routine, mundane, and almost random in its incidence.23 That is one reason why – without intending anything invidious – I observe that scholars of comparative

21

22

23

describe the justices as among the country’s best 100 or 200 lawyers seems to me unquestionably correct. See “Judge Richard Posner Corrects the Record Regarding His Supreme Court Comments,” Above the Law, October 28, 2016 (“I sometimes ask myself: whether the nine current Supreme Court Justices [I’m restoring Scalia to life for this purpose] are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”), http://abovethelaw.com/2016/10/judge-richard-posner-cor rects-the-record-regarding-his-supreme-court-comments/. In comments on an earlier version of this chapter, David Law noted that “observers [of the constitutional courts of Taiwan and South Korea] bemoan how boring and timid they have become,” but “not because of any noticeable political crackdown/backlash.” L. Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed. (New York: Columbia University Press, 1979) (“almost all nations observe almost all principles of international law . . . almost all of the time.”). Applied to constitutional courts in quite badly functioning systems, Learned Hand’s observation is apt: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.” Learned Hand, “The Spirit of Liberty,” The Spirit of Liberty: Papers and Addresses, 3rd ed. (enl.) (New York: Knopf, 1963). I take the lesson of the descriptive material in S. Issacharoff’s, Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge: Cambridge University Press, 2015) to be that, though there might in theory be things that courts could do to improve the functioning of not-very-well-functioning democracies, in fact they rarely do them.



 

constitutional law devote little attention to the work of the constitutional courts of Austria or Slovenia.24 One might be concerned with this state of affairs, though. A generally well-functioning political system may face an unexpected crisis – an international incident, or an unusual outburst of domestic politics in which previously taken-for-granted norms are put into question. Constitutional courts might be thought well-suited to dealing with the legal aspects of such crises. Yet, if they have not been accustomed to doing important work, perhaps the courts will not rise to the occasion.25 Finally, what of those rare constitutional courts that play a significant role in the national political order over a sustained period, and whose work is of consistently high quality? Here there is no sequence of a heroic court followed by an ordinary one regressing to the mean, but rather a court whose performance is such that no one describes it in heroic terms. The best examples of such courts are, I believe, those in Canada and Germany – but not the United States.26 Perhaps the role of those courts and their quality is promoted by the processes by which their members are appointed. Those processes are strongly consensual. In the German case the requirement that appointees receive the votes of two-thirds of the relevant house of parliament in effect means that appointees be acceptable to the two (now perhaps three) major voting blocs in parliament. With politics or ideology unable to play a large role at the appointment stage, quality of mind can emerge as an important criterion. The Canadian process is regulated by extremely strong norms of professionalism, including a norm that nominees should be high quality. Even strong-minded prime ministers have been unable to resist the pressure of these norms. Consensus at the appointment stage frees the court up to 24

25

26

Scholarship in the field is of course shaped by a focus on “canonical” jurisdictions such as the United States, Germany, Canada, and some others. Putting to one side the possibility that jurisdictions become canonical because of an unattractive Eurocentricity, we might think that they also become canonical because they do “interesting” rather than routine work. (Another reason is that some judges on those courts, and few on other courts, actively participate in the discourse and, importantly, organizational life of the field.) My sense is that courts do a reasonably good job in facing down threats to their own prerogatives, e.g., in preserving their power to engage in constitutional review. But, my sense is also that they preserve that power in some substantial measure by agreeing to forgo its exercise more than occasionally. One modest bit of evidence supporting this judgment is the apparent decline in the worldwide influence of the US Constitution and the concomitant rise in the influence of the Canadian and German constitutions. D. S. Law and M. Versteeg, “The Declining Influence of the United States Constitution,” NYU Law Review 87 (2012), 762–858.

     



act as its members choose because the judges know that the consensus that attended their appointment is likely, though not guaranteed, to produce consensus about their decisions. And, finally, the institutional interest of courts lies in doing something important.

Conclusion: The Importance of Temporality Political scientist Stephen Skowronek has written of “political time,” referring to the importance of focusing not merely on the political calendar of elections, which he refers to as “secular time,” but also on the way in which developments in governance unfold at their own pace and with reference to the existing state of affairs.27 Attention to political time, he argues, induces a rethinking about periodization. Scholars of US constitutional law have noted the importance of what we might call “judicial time.” I have criticized the common practice of labeling periods of Supreme Court history with the names of chief justices.28 The Warren Court, yes, but not really the Vinson Court, for example. As to the latter, better the Roosevelt Court or the New Deal Court, the latter extending well beyond Vinson’s tenure. Discussion of first- and second-generation courts extends the idea of judicial time into comparative constitutional law. When elections occur on a fixed schedule, as they do in the United States, or when presidents can serve only a limited number of terms, as is true in most well-functioning democracies, secular time sometimes matters for political time. It is typically less important for judicial time because the composition of constitutional courts changes dramatically only when they are created or at irregular intervals dictated by tenure rules, mandatory retirement ages, and the like.29 Political time is more important for judicial time. Backlashes occur, for example, as one political coalition is replaced by another. As the potential replacement coalition incrementally gains power, arguments about the constitutional court’s role may become more prominent. A sudden replacement might result in an aborted backlash, as I have suggested about the persistence of 27

28

29

S. Skowronek, Presidential Leadership in Political Time, 2nd ed. (Lawrence: University Press of Kansas, 2011), pp. 17–18. M. Tushnet, “Pragmatism and Judgment: A Comment on Lund,” Northwestern University Law Review 99 (2004), 289–296. One exception was the initial Hungarian Constitutional Court. A design flaw meant that all members of that court had to step down at the same time, when their eight-year terms ended.



 

the Warren Court well after Warren’s retirement. There political time proceeded at a faster pace than judicial time. When judicial time and political time occur at roughly the same pace, we might observe the demise of a heroic court through regression to the mean. Perhaps we might observe “failed” judicial revolutions when judicial time outpaces political time.30 I suspect that there is much more to be said about judicial time. Its animating idea is that a constitutional court need not play an unvarying role in the constitutional order. Variation may be driven by the relation between judicial time and political time, but it also may be driven by features of the judicial system alone, as the example of regression to the mean suggests. Introducing the idea of judicial time into the study of comparative constitutional law may also introduce greater complexity. For example, scholars might find it helpful to distinguish types of crises of constitutional review depending on their location in judicial and political time.31 The idea of judicial time might help us systematize our understanding of what happens after heroic courts and judges leave the scene. 30

31

A candidate example is the Russian Constitutional Court under Valery Zorkin from 1991 to 1993. The Court’s operations were suspended because of Zorkin’s aggressive interventions into politics, sometimes through judicial rulings. Another candidate is the failure of Chief Justice Anthony Mason’s doctrinal innovations to take hold in Australia. It seems to me, e.g., that the crisis of the Zorkin Court was different from the crisis of the Chaudhry Court, which was in turn different from the crisis of the Polish Constitutional Court, and that the differences have something to do with location in judicial and political time.

PART IV Judicial Power in Processes of Transformation

14 What Exactly Is Political about Constitutional Adjudication?       

The standard question in connection with constitutional adjudication is whether constitutional courts or supreme courts with constitutional jurisdiction are legal or political institutions and whether judicial review is a legal or a political activity. Academics are not less interested in it than the general public. However, the answers to the question differ considerably among the disciplines. While political scientists overwhelmingly understand constitutional adjudication as politics in a legal garment, this is different in the legal world. Courts and judges insist on the legal nature of constitutional adjudication, which may not be surprising. But legal scholars, at least outside the United States, tend to share this view as well. If the answers to the question differ so greatly, one is inclined to ask whether something might be wrong with the dichotomy. Could it be that, in the exercise of judicial review, politics and law are not mutually exclusive but can coexist – with the consequence that each discipline misses an important aspect of its object when it insists on the dichotomy? Are both right, but only partially? It is obvious that constitutional courts play an important political role when they decide about the validity of political measures. But it is equally obvious that the activity of constitutional court judges differs from that of politicians, and it is just their specialization on legal control that makes the difference. This suggests a differentiation of the question whether constitutional adjudication is a legal or a political operation. Instead of looking for a uniform answer, one should try to find out what exactly is political about judicial review and what is not. In addition, it seems helpful to distinguish between the institution of constitutional adjudication in its presupposed functioning; individual constitutional courts or supreme courts with constitutional jurisdiction and their behavior that may well deviate from the ordinary function; and the output of these courts, their 



 

judgments, not all of which may be based on legal reasoning. In this chapter, the emphasis lies on the institution as such whereas the other two levels will be treated in passing only. So, what is political about judicial review? Certainly, the object. The function of constitutional courts consists in enforcing the rules of the constitution. The constitution, in turn, is the law that specializes on establishing and regulating public authority. It not only determines the political structure of a country but also guides and limits political behavior. Political decisions are valid only if they comply with the constitution. If this is so, the objects of judicial review are by necessity political acts – usually the acts of the highest organs of the state, the various branches of government including those powers that derive their authority directly from popular elections. It should be mentioned, however, that a great deal of what constitutional courts and even more so general supreme courts with constitutional jurisdiction do is not of a political nature in this sense. Only those constitutional courts whose task is limited to reviewing legislation always deal with objects of a political nature. In courts with broader powers, not every constitutional case concerns actions of the highest political authorities. Many constitutional complaints are directed against administrative acts or decisions of lower courts. But it is the relatively small number of highly political cases that determines the image of constitutional courts in the general public and nourishes the concerns about the political character of constitutional jurisprudence. Inevitably political is secondly the effect of constitutional judgments insofar as their object is political. Whether a statute passed by a majority decision in parliament may enter into force or not is of eminent political impact. The same is true when a court is called upon to decide whether parliament may ratify an international treaty that the government has concluded. Even acts of a purely executive nature, like the decision to wage war or to participate in peace-keeping missions abroad, may depend on the constitutional court’s final word. Decisions about the rules of political competition such as election laws, campaign financing rules, and so forth are of an enormous political impact. Never was the political effect of a court decision as obvious as in Bush v. Gore.1 All this comes inseparably with constitutional adjudication. It is the essence of it. It is why we have constitutional courts. A constitutional court

1

Bush v. Gore, 531 U.S. 98 (2000); 121 S.Ct. 525 (2000).

     ?



that would abstain from deciding cases because the object or the effect of its judgment is political would betray its function. There may be reasons to reject judicial review. But if a country decides in favor of it, it has to accept that the court interferes with the political process. Everyone for whom this is democratically unacceptable must be against judicial review. But then he must also accept that compliance with constitutional requirements is left to the willingness of those who are bound by these requirements, which will reduce the impact of constitutional law considerably. Remains the question whether the process in which the judges reach their decisions about the constitutionality of a political act is also political in nature or whether it can be qualified as legal. This is the central question. Much depends on the answer. If judicial decision-making turns out to be political, it will be much more difficult to justify judicial review. Why should political decisions of great impact be entrusted to unelected and unaccountable actors? But also, the achievement of constitutionalism would suffer a severe blow if constitutional law were no longer justiciable. After all, it was the spread of judicial review in the second half of the twentieth century that made constitutions matter in many countries where they had been of little impact for decades. While the political character of the first two aspects of constitutional adjudication can hardly be denied, this is different regarding the third aspect that concerns the application of constitutional norms to actual cases. Here, the answer is much less obvious. Partly, the internal proceedings of the courts are secret, so that it is difficult to shed light on the way judges reach their decisions. In part, what goes on in the process of adjudicating is not accessible at all because it happens in the heads of judges so that, at best, self-portrayals are available whose reliability may be questionable. Consequently, the proportion of speculative elements in descriptions of judicial behavior is relatively high. However, parts of the process are open to observation. Obviously, a change of arena takes place when a political act is challenged in the constitutional court. The actors change, the criteria change, and the procedure changes. Politics mutate from subject to object. Had politicians been the decision-makers before, they now find themselves in the role of claimant or defendant whereas the lead is taken by judges. They differ from politicians in various respects. They are legal professionals. Usually, they do not owe their office to popular elections. They need not campaign for their position. They don’t come with an agenda. They cannot even act upon their own initiative but have to wait for cases being brought before them.



 

But they are usually recruited by politicians in a political process, be it elections by parliament, appointments by the head of state or the cabinet, or other mixed or in-between forms, sometimes with representatives of the judiciary participating. This gives politics a considerable influence on the personnel of highest courts. It cannot be excluded that political motives or expectations play a role in the selection of judges. If they become decisive, the proper functioning of constitutional courts may be endangered. This is why constitutions frequently contain safeguards against election or appointment by the ruling party alone. Conformity between the controller and the controlled tends to undermine the control. A further safeguard against the politicization of courts is the guarantee of judicial independence. Once in office, judges are immunized against politics. They are not subject to instructions and they cannot be removed or dismissed because of their decisions. Independence is justified because judges underlie different bonds, namely the constitution that they have to apply to the cases at hand. Their independence is not a personal privilege. It exists for law’s sake. It is guaranteed to secure that judges can decide according to the law without fearing any disadvantage. Attempts to instrumentalize courts for political, religious, and economic interests are illegitimate. Separation of powers is stricter at this front than between the legislature and the executive. The criteria for deciding also change. Had party platforms, government interests, viewpoints of expediency, public opinion, financial costs, and the like been the criteria in the political arena, it is constitutional law in the legal arena. This is not to say that constitutional law plays no role in the political process. But usually, it does not come in first, but last, namely as a corrective after the political will has been formed. The constitutional question is raised to reassure whether what is politically desirable is also legally permitted. Because of this auxiliary function, it is likely that the constitutional question will be regarded through the lens of political desirability. Without judicial review looming in the background, the question of the constitutionality of a political measure would probably be without much weight. A change occurs, furthermore, in terms of procedure. The objective of the legal proceedings is to determine what the relevant provisions of the constitution mean with regard to the object of review. Consequently, it is an argumentative process, in which only legal arguments are acceptable. There may be doubts as to what counts as a legal argument. But it is not dubious that nonlegal arguments are unacceptable. The question whether a political measure is wise, useful, and affordable does not play a role

     ?



unless it can be formulated as a legal argument. Even more so, it is irrelevant for the legal process whether a political measure helps or hurts the chances of political parties, entrepreneurs, churches, and so forth. As a consequence, the quest of whether constitutional adjudication is political or legal in nature can be narrowed to the process of judicial decision-making. Is it a legal operation despite the fact that its object and effect is political? Here, observation reaches its limits. Only in a very small number of countries, like Brazil, courts deliberate in public. But it seems that this deliberation is not the place of actual decision-making.2 In most courts, the deliberation takes place behind closed doors and is not recorded. The core of judicial activity, the determination of whether the constitution permits or prohibits a certain political measure, remains a black box for academic research and the general public alike. However, constitutional courts are obliged to give reasons for their decisions. The reasons demonstrate why and how the concrete ruling is derived from general constitutional provisions and, if applicable, precedents in a rational process based on specifically legal methods of interpretation. They are presented as acts of cognition, not of will. Common-law countries allow further insights as not only the opinion of the court but also dissenting opinions are published and thus open a window to the internal debate. This is rare in civil law countries. Where separate opinions are allowed in the constitutional court like in Germany, experience shows that the opportunity is not used frequently. The absence of dissenting opinions is no proof of unanimity. One knows, of course, that the making and the presentation of a decision can fall apart. This holds true for common law and civil law judges and for majority and minority opinions alike. As a matter of fact, the majority of political scientists and quite a number of legal scholars, certainly in the United States, assume that judges do something different from what they say they do. They are seen as strategic actors, guided by personal or institutional self-interest, subjective values, or political preferences. After having taken a decision on this basis, they try to present it as dictated by the provisions of the constitution. The determinative force of legal rules on judicial behavior is thus denied. This is described as a realistic view of judicial behavior. There are undoubtedly cases for which this is a correct description. If one turns to specific courts, one will find judges who care little about the 2

See V. A. da Silva, “Deciding without Deliberating”, 11 I-CON 557 (2013).



 

law and follow their own preferences or material interests. There are also judges for whom the institutional interests of the judiciary prevail over legal reasoning. Judges exist who try to avoid a conflict with powerful political actors and decide constitutional issues according to explicit or anticipated expectations of politicians. Some of them may have good reasons to believe that decisions that interfere with political interests or plans will have serious consequences for them. History furnishes sufficient evidence for this and present times do so as well. The question is, however, whether this is normal or deviant behavior. There is, at least, one political scientist who vehemently refuses to adopt the realistic approach. After comparing the output of eight courts with constitutional jurisdiction, he writes, “This book is rather different from most work by political scientists on courts, not because I think other work wrongly conceived, but because I am much more concerned with judicial argument, which I take to be the core of judges’ activity, and central to understanding the role courts play in complex societies. . . . My method is to take judicial argument seriously as one of the major, if not the sole, determinants of the decisions courts make.” He prefers this approach “because it simply seems beyond credibility that so many thousands of professionally socialized able men and women should be lying or deluding themselves in their arguments.”3 This is a plausibility argument and thus a weak argument compared, say, to observation. But not all judicial behavior lends itself to observation and it seems that legal realists do not have more empirical insights because they derive their findings about judicial behavior from a theoretical assumption called rational choice. It is by no means clear under what conditions, to what extent, and in which areas of social life rational choice promises a full and reliable explanation of human behavior. In addition, social scientists are often unfamiliar with the specific legal reasoning, the way in which a concrete and individual ruling is derived from a general and abstract norm, and thus tend to underestimate it, as Robertson correctly observes. The following discussion refers to the Robertson-type judge, the judge whose sincere intention is to decide constitutional issues according to what in his or her best understanding is required by constitutional law. This judge is not regarded as an ideal type or a role model but a reality in many courts. Robertson’s description corresponds with my own 3

D. Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton, NJ: Princeton University Press, 2010), p. 21.

     ?



experience as member of such court. Judges routinely tried to develop the answer to a constitutional issue from the constitution. They used constitutional arguments to justify their solution, and it was normal that members of the court changed their initial idea about the right solution because they were convinced by legal arguments raised in the deliberation. If we assume with Robertson a serious attempt on the part of constitutional judges to derive their decisions from constitutional law, this is not the end of the discussion. The attempt could be in vain. The constitution might not contain enough information to decide a case on a purely legal basis. We can therefore once again narrow the focus and ask whether and to what extent the process of applying a constitutional norm to a case is in itself a political act. This would be so if constitutional norms lacked the capacity to determine judicial decisions so that extralegal viewpoints become decisive. This requires a closer look at the determinative force of legal norms in general and constitutional norms in particular. Different from individual commands, which are directed to an already existing situation and exhaust themselves in the execution, legal norms are designed to apply to an unforeseeable number of future cases. This is why they have to be formulated in a more or less abstract manner. This leaves a gap between the general and abstract norm and the individual and concrete case. As a consequence, the norm is often not ready for immediate application to the case. The gap has to be bridged by interpretation. Interpretation is the attempt to ascertain what the general and abstract norm means regarding the concrete case at hand. A more specific sentence has to be derived from the general and abstract norm, which is then applicable to the case. This can be more or less difficult, depending on the degree of determinacy of the norm and the complexity of the case. But no legal norm is so clear that it never leaves doubts about its meaning with regard to a particular case. One can tell that a norm is vague and open-ended by reading it. Whether a norm is clear and unambiguous cannot be determined independently of the case to which it applies. One and the same norm may be clear with regard to one set of facts and unclear with regard to another. It is possible that no reasonable doubts exist about the meaning of a norm with regard to a certain case. But cases like these usually do not reach the courts. Most constitutional trials arise from legitimate doubts about the meaning of constitutional provisions with regard to a concrete case.



 

Constitutional law is notoriously unclear. Many of its norms are principles, not rules, in Robert Alexy’s terminology.4 The gap between norm and case is usually broader than with ordinary law. The less determinate a norm is the more the judge has to add to it before it can be applied to the case. This process is not merely cognitive. Interpretation is not about disclosing a meaning that had been deposited in the norm at the moment of its adoption. The determination of a more concrete meaning from the text, which fits the case, has a creative element. The more concrete sentence is not just found but also to a certain extent constructed, however, such that it can be traced back to the norm, even if a long chain of arguments may be necessary. Is this sufficient to prove that the application of constitutional norms to cases is by nature political? If it were true that, where the determinacy of a norm ends, adjudication starts to be political, not only constitutional adjudication but also all adjudication would be politics. However, this would overlook a number of constraints under which lawyers work. Filling the space of indeterminacy and making an ambiguous norm applicable to the case at hand is not left to the discretion of judges. It is legally guided. Even when filling the space of indeterminacy, the judge works in a field that is delimited by legal doctrine and legal precedents, and he applies legal methods in ascertaining the meaning of a norm with regard to a specific case. Doctrine and precedents contain a stock of proven and shared understandings of legal norms and notions and make available solutions to recurrent problems, which the judge may use in good faith instead of starting always from scratch. Legal methods show ways as to how concretization of indeterminate norms can work rationally and faithfully to the norm. In doing this, methods typically delimitate what counts as a legal argument when a norm is prepared for application to the case. Legal education consists largely in getting acquainted with doctrine and precedent and acquiring the skills that allow a nonsubjective, rational way to deal with legal norms that do not lend themselves to immediate application to a case. Hence, there are various sources of information about the meaning of a norm that is relevant for a case, even if its text is inconclusive. The relevant provision is not isolated. It is part of a larger complex of norms. Often the systematic connection with other norms will provide further 4

R. Alexy, Theorie der Grundrechte (Baden-Baden: Nomos 1985), p. 71 (English: A Theory of Constitutional Rights [Oxford: Oxford University Press, 2010]).

     ?



information about the meaning. The same is true for the question about the normative purpose. Legislation is a purposive activity. Every norm is enacted with a certain effect in mind, which it shall develop in the real world. A look to legislative history may be instructive. Describing all the legal tools that help clarifying the meaning of a seemingly ambiguous norm would amount to writing a methodology of constitutional interpretation. To be sure, neither legal doctrine nor legal methods bind the judge in the same authoritative way as the text of the norm does. Legal doctrine and legal method are products of an ongoing process of working with the law, in which academics and practitioners participate. This process is seldom uncontroversial and never completed. Different methods compete, and the outcome of a lawsuit may depend on the method that a court prefers. The borderline between legal and nonlegal arguments may be drawn differently by different methods. For quite some time, purposive arguments were regarded as extralegal. The adaptation of old norms to modern challenges would be politics for one methodological school but law for another. But still, they are legal methods. Each of them formulates conditions under which an interpretation of a norm can claim to be legally correct. But because there is no external instance that is entitled to decide which doctrine and which method is the correct one, one must conclude that contradicting interpretations will exist without the possibility of determining that one of them is correct while the other is wrong. Cases with regard to which only one meaning can claim to be correct are rare exceptions. For the vast majority of cases, and certainly for those that become the object of constitutional controversies, there is more than one solution that may be legally justified. This should, however, not be confused with an “anything goes.” There are interpretations that are clearly wrong, regardless of which doctrine or method prevails. “Wrong” then means outside the range of possible interpretations. Inside this range, disagreement among judges is not an indication that the judges acted politically instead of legally. Every judge works under the premise of determining the correct meaning of a norm but has to admit that other judges reach a different result without necessarily erring. But it remains the case that delimiting and filling the space that a norm leaves for interpretation requires decisions that are not completely determined by the text of the norm. This allows a last narrowing of the problem. The question is now what determines the choice between different, but possible, legal solutions? Do



 

political convictions and party affiliation interests of the judges reassert themselves here? Some sociologists have tried to shed light on the inside of the black box by collecting the social data of judges: their gender, race, family background, religious beliefs, fortune or property, and so forth. If this is relatively easy it will be extremely difficult to demonstrate a causal nexus between these data and judicial behavior. It cannot be taken for granted that a believer will always decide in favor of the churches or a stockholder against a wealth tax. Background assumptions may play a role, sometimes even subconsciously. Some are of a superindividual nature, Zeitgeist, changed attitudes, say, vis-à-vis gender roles or sexual orientation may influence the understanding of constitutional guarantees of equality. Courts do not operate outside the society for which they say what the law is. Background assumptions may also concern certain conceptions of a just order, of what can be left to market regulation, and what the state should take into its own hands. Part of background assumptions may be judges’ self-perception of the judicial function, more activist or more deferential, for instance. Assumptions about the state of social reality, insofar as it is the object of legal regulation, may play a role. Social reality gains relevance for the interpretation and application of constitutional law because legal norms are formulated with regard to a certain state of affairs in which the norm shall fulfill its purpose, be it preserving this state or altering it. Social reality is, however, in constant change. Hence, it may happen that sticking to the original understanding of a provision may lead to missing the purpose and producing dysfunctional results so that an interpretation has to be found that can fulfill the purpose under changed conditions. Additional assumptions like these are unavoidable as long as adjudicating cannot be left to robots. But although they are not strictly legal, one should not take them for pure subjectivism because they are prompted by the task to determine the meaning of a constitutional provision and are integrated into the process of constitutional interpretation. The background assumptions or conceptions of social reality do not have a direct impact, but exercise their influence in a normatively mediated and molded way. In addition, subjective inclinations are mitigated by the fact that determining the meaning of a norm is a collective endeavor. The arguments used must be acceptable to the group as relevant for fulfilling the legal function. Nevertheless, one cannot exclude that even constitutional courts that take their legal function seriously transgress the subtle borderline

     ?



between interpreting the constitution and altering it or that they get out of step with the society in whose name they say what the law is. This makes correctives necessary. An important one is the critical observation by the legal science as to the legal plausibility and logical consistency of the jurisprudence. Another one consists in the public debate to which judges are exposed with the assistance of the media, not in the sense that judges should orient their decisions at public opinion, but in the sense that they are called upon to critically reflect their behavior. All this is by no means without impact on constitutional judges. Judges are aware that constitutional courts are particularly vulnerable, as in constitutional adjudication the addressees of the rulings are the highest authorities of the state. There is no superior enforcement institution as in matters of ordinary law. Judges are susceptible to this vulnerability of their position. Ultimately, however, counterweights are necessary against the democratic risks that constitutional courts present. The practice of constitutional courts must be subject to correction. The adequate means for this are constitutional amendments. Constitutional courts are legitimate only insofar as they serve instead of dominating the constitution.

15 Populism, Constitutional Courts, and Civil Society     

Introduction The antagonism of populist governments to apex courts is, as I will show, a matter of historical record. It started with Peronism, the first time that an openly populist movement established its own government.1 In “The Disempowerment of Constitutional Courts” I will summarize current efforts by dominant executives to pack and disempower supreme and constitutional courts in Peru, Russia, Venezuela, Israel, Hungary, Turkey, and Poland. After a preliminary definition of populism in “The Political Identity Called Populism,” I will consider, in “The Harm to Constitutional Democracy in Attacks on Courts,” the reasons why populist movements once in government attack the independence of apex courts. I will argue that such an effort is a key indication of populism in government moving toward establishing itself as a regime. I will next try to summarize the harm involved in these cases. In “The Cooperation between Courts and Civil Society in Fighting Populist Authoritarianism,” using the examples of Poland and the United States, I will maintain that the way to oppose populist authoritarianism and its attack on courts requires a strategy that is both legal and political, based on the mutual support of associations and initiatives of civil society and courts. I will argue that such an effort requires facing the democratic deficit of liberal representative democracy, and reliance on an alternative conception, namely the “plurality of democracies.”

I thank Gábor A. Tóth, Enrique Peruzzotti, Nicolas Figureoa, and Martin Plot, as well as Jean Cohen and F. Finchelstein, for suggestions that went into this article. 1 F. Finchelstein, From Fascism to Populism in History (Berkeley, CA: University of California Press, 2017).



, ,  



The Disempowerment of Constitutional Courts Admittedly, no current populist government has gone as far Peron’s in 1947 when he initiated the impeachment and trial of four out of five Supreme Court justices, with one of them resigning before impeachment succeeded.2 As indicated by Table 15.1, removal and packing are only two of the possible forms of bringing a court under government control. Jurisdiction reduction is another form, and so is the changing of the voting rules by which a court can invalidate or force the reconsideration of a statute or decree. Combining these forms may seem superfluous because appointing many friendly judges and controlling appointments means that pro-government decisions will likely follow in all jurisdictions and according to any voting rule. Yet, as in Hungary recently, a government may plan both for the short term, when only the composition of the court may matter, and for the long term when there may be either a new legislative majority or a court may decide to reassert its independence irrespective of who appointed the members. Nevertheless, if an executive wants a court to be an active instrument on its own behalf at some point in the future, it would be an avoidable mistake to alter anything else than composition. Thus, even populist governments may face difficult choices when fighting apex courts. While the presidents of Argentina, Venezuela (initially), and Peru opted to tamper only with court composition, Hungarian, Turkish, and now Polish governments have moved against their apex courts in several dimensions all at once. The difference may be due to that between presidential governments in the first three and parliamentary ones in the others.3 In other words, a plebiscitary presidency may be more optimistic about the long term than an executive controlling a parliamentary majority. Put another way, a populist presidential government may have a better chance of establishing a populist regime than a parliament dominated by populists. The creation of a populist regime may require the making of a new constitution, de jure or at least de facto. Indeed, another issue 2

3

G. Helmcke, Courts under Constraints: Judges, Generals, and Presidents in Argentina (Cambridge: Cambridge University Press, 2012), pp. 63–65. There were legitimate complaints against the Court for having recognized de facto governments established in military coups, of which, however, Peron was one beneficiary. But Helmcke makes clear that the goal of Peron was to govern as he saw fit, including harass and persecute political opponents. The type of government, whether presidential or parliamentary, may significantly affect how populism in power may work. See B. Moffit, The Global Rise of Populism: Performance, Political Style, and Representation (Stanford, CA: Stanford University Press, 2016).



 

differentiating among the relevant cases is whether the attempts at executive control of courts take place through the amendment or even statutory process, or they are preliminary to or even part of the attempt to produce a new constitution. Of course, new constitutions are made for a variety of reasons, and the reduction of the powers of the courts may not be a major motivation of the actors. Yet, several cases, for example South Africa and Egypt, show that even the making of a new constitution need not imply the dismissal of existing courts whether created by old (Egypt) or interim (South Africa) constitutions. Thus, this form is included in my comparative chart, whenever as in Peru in 1992, Russia in 1993, and Hungary in 2011 there is clear empirical indication that bypassing, disciplining, or suspending courts is an important motivation for the constitution-maker(s). However, in many cases (Turkey, Hungary at first, and Poland) the preferred instrument to deal with hostility to apex courts has been constitutional amendment and, where possible, simple statutes. Impeachment, though often an available instrument, has not been recently used. Of course, I do admit that either mode of action, amendment, or “replacement” need not necessarily achieve its desired result: the complete domestication of the apex courts. It is for this reason that, in several cases, the various modalities are reiterated, with amendment preceding or following replacement. As we have seen recently in Venezuela, even constitutional replacement may be repeated a second time. Reiteration of acts of attempted court capture is thus an important sign of moving toward a populist regime, rather than merely a government. Table 15.1 does not attempt to include all contemporary cases that would be relevant. There are simply too many of them. They are, however, chosen from three regions of the world to indicate the seriousness of the attack on constitutionalism today. In some of the cases, I leave out subsequent history, after, as in Venezuela and Russia in particular, populist governments have definitively established populist regimes, a difference that I will explain. I also leave out cases in which there are significant populist movements that have never won a national election, as in the case of the National Front in France, and also where an election has put in power a clearly populist leader like President Trump but where we cannot (yet) speak of a populist government. I did, however, decide to include Israel, where there is certainly a populist-led coalition in power, even if it has been unable so far, despite many attempts, to destroy the independence of the apex court. Yet I left out Egypt during the year (2011–2012) under President Morsi, an important case of religiously

, ,  



Table 15.1 Forms of Bringing Apex Courts under Government Control Country (one date for each event)

Removal (-) and/or packing (+)

Peru Venezuela Russia Turkey9 Hungary10 Israel Poland

1992–19935 19996; 20037 1993 2010 2010, 2011 Proposed 2015 (2017)

Jurisdiction reduction

Manipulation of rules of appointment

Change of voting rules

20008

2010, 2011, 2013 Proposed

2010 2011 Proposed

2010 Proposed 2015

based populist government, linked to constitution-making, because of its rapid collapse and replacement by a military regime.4 To anticipate two serious criticisms, let me first note that there are transitions, generally when postsovereign requirements of inclusion and consensus are satisfied11, that a new or interim constitution establishes a strong court where previously there was at best a relatively weak one, without formal powers of invalidation of legal acts and especially amendments. This happened in Turkey in 1961, Chile in 1981, Hungary in

4

5

6

7 8 9

10

11

While one could say that the Supreme Constitutional Court was a winner of the confrontation with Morsi, this was a byproduct of a military coup initially with wide popular support. On this see my Adventures of the Constituent Power (Cambridge: Cambridge University Press, 2017), ch. 4. C. Kenney, Fujimori’s Coup and the Breakdown of Democracy in Latin America (South Bend, IN: University of Notre Dame Press, 2004). A.-R. Brewer-Carias, Dismantling Democracy in Venezuela: The Chávez Authoritarian Experiment (Cambridge: Cambridge University Press, 2010), pp. 59, 76. This time it was the Administrative Court that was dismissed: ibid., pp. 129, 180–181. Ibid., pp. 230–231. A. Arato, Post Sovereign Constitution Making (Oxford: Oxford University Press, 2016), pp. 250–252. See my chapter 4 of Post Sovereign Constitution Making, as well as articles by C. Boulanger and O. Lembcke, “Between Revolution and Constitution: The Roles of the Hungarian Constitutional Court,” and M. Bánkuti, G. Halmai, and K. L. Scheppele, “From Separation of Powers to Government without Checks,” in G. A. Tóth (ed.), Constitution for a Disunited Nation: On Hungary’s 2011 Fundamental Law (Budapest: Central European University Press, 2012). See my Adventures of the Constituent Power regarding some of these cases.



 

1989, Colombia in 1991, South Africa’s interim constitution of 1993, and Tunisia in 2014. In many of these instances, such court strengthening was clearly an attempt to preempt populist or other authoritarian threats to the new constitutional government. This was the case in Colombia, South Africa, and Tunisia. But the effort can be authoritarian when trying to protect not so much constitutionalism but a constitution with authoritarian reserves, and “bionic” appointments, as in the case of Chile in 1981 and, in part, in Turkey in 1961. Second, it might be argued against me that the various court packing and weakening schemes are merely in response to previous struggles of governments (generally executive dominated) with apex courts, as it was certainly the case for Franklin Roosevelt’s scheme in the 1930s. In such struggles, either side may be right in terms of the substantive issues, and therefore they possess no general significance. As to my cases, however, I would argue that the struggles involved do not parallel procedurally and especially in substantive contents of this particularly famous historical example. In chronological order, Alberto Fujimori’s suspension of the Supreme Court during his self-coup (autogolpe) of 1993 was a key component of his struggle against a parliament he did not control, and part of the beginning of his effort to call a constituent assembly to establish a much more presidential constitution. Similarly, the fight of Yeltsin with the new Russian Court (poorly) led by Zorkin in 1993, also leading to a self-coup, involved the Court supporting parliamentary versus presidentially led constitution-making efforts. Whatever their ideological interests, both legislative and judicial leaderships strongly opposed the efforts of Yeltsin to establish a plebiscitary form of presidential government and supported the impeachment of the president. After the latter won, the main reason to suspend and then abolish the Court by two executive decrees in 1994 had to do with the interests of the new plebiscitary presidency. This was reflected in the subsequent difficulties of Yeltsin, till 1995, in the face of parliamentary resistance, to appoint members to the new court as established by the presidential Constitution of 1993 (art. 125), which has since then been subverted by Putin.12 In Venezuela, on the contrary, the Supreme Court was highly permissive regarding the presidentially led effort to replace the inherited constitution in an extralegal manner, by way of a plebiscite. While the Court 12

See W. Partlett, “The Dangers of Popular Constitution-Making,” Brooklyn Journal of International Law 193 (2012), 210–226.

, ,  



did not permit President Chavez to enact by decree his own rules for electing the Constituent Assembly, it did allow (very much mistakenly) doing the same by way of a plebiscite. The attack on the Court came only when the Constituent Assembly moved to replace all constituted powers (even, formally, the president whose status was immediately reconfirmed!). The Supreme Court responded by insisting that the Constituent Assembly had only “derived” rather than “original,” and therefore limited, constituent powers. It was then that the immense presidential majority, achieved through electoral rule manipulation, moved to assert its sovereignty and replace judges and pack the Court. The act of packing was then repeated on at least two more occasions, in the face of even the slightest show of independence of the new apex court established by the Constitution of 1999.13 The result was so successful that the Supreme Tribunal of Justice recently became the main instrument against a new parliamentary majority opposed to the presidency.14 Admittedly, in Turkey, the efforts of 2010 to alter the membership, jurisdiction, and voting rules of the Constitutional Court came after the adverse decision of the Court in 2007 concerning the validity of the socalled headscarf amendments. But the same Court subsequently, in 2008, voted against dissolving the ruling AKP (Justice and Development Party). The amendments of 2010 had to do rather, in my view,15 with the establishing of a new, plebiscitary presidentialist constitution that could have been blocked by the old Court in reference to the eternity clauses of the inherited constitution. That this interpretation was correct has been confirmed by the introduction of presidential government first de facto, and then de jure in 2017, again by way of amendments confirmed by plebiscite. 13

14

15

See Brewer-Carias, Dismantling Democracy; D. Landau, “Abusive Constitutionalism,” University of California, Davis Law Review 47 (2013), 189–260; Florida State University College of Law, Public Law Research Paper No. 646, https://ssrn.com/abstract=2244629; and especially N. Figureoa, “A Critique of Populist Jurisprudence: Courts, Democracy, and Constitutional Change in Colombia and Venezuela” (dissertation, New School for Social Research, 2016). For Maduro’s constituent assembly and the role of the Court in defending it, see the three-part blog entry: M. Jung, H. Buck, and M. Haimeri, “A Constituent Assembly Only in Name?,” Parts I, II, and III on Venezuela’s Constituent Assembly, Verfassungsblog, November 23, 2017, http://verfassungsblog.de/a-constituent-assembly-only-inname-part-i-on-venezuelas-constituent-assembly/. See A. Arato, “Democratic Constitution-Making and Unfreezing the Turkish Process,” Philosophy & Social Criticism 36 (2010), 473–487, and chapter 5 of my Post Sovereign Constitution Making.



 

In Hungary, Poland, and Israel the conflicts involved were within parliamentary forms of government. Yet in Hungary too, the making of a new, more authoritarian constitution was an important stake. While the Constitutional Court tried to recover some of its former guardianship of the Round Table Constitution under the FIDESZ government of 2010, by declaring several politically motivated statutes unconstitutional,16 FIDESZ used the amendment structure of the old constitution and its supermajority manufactured by the electoral rule to preemptively discipline the Court through devices of court packing, jurisdiction limitation, and a majoritarian transformation of the structure of appointment. The amended structure was then lifted into the Basic Law of 2011, the new constitution. When even this move did not produce the desired result, further amendments were used to lift invalidated statutes and even quasiconstitutional “transitional” provisions into the main text of the Basic Law.17 In the Polish case, the new Law and Justice (PiS) government did not have a constitution-amending majority, as did FIDESZ in 2010. Here the attack on the Court was enabled by a very unfortunate attempt in 2015 at preemption by the outgoing liberal (Civic Platform: PO) government, under a new law. This involved the legal though normatively questionable replacement of five justices, three of whose terms according to the previous procedure would be up only after new elections. In response, the new right-wing PiS government tried to block not only these five appointments but also to appoint five new judges as well as change the process of judicial invalidation of statutes from majority to two-thirds of a high quorum (13 out of 15).18 Without going into the complicated 16

17

18

In particular, a law establishing retroactive taxation of pensions of public officials that ingeniously applied only to persons in government before FIDESZ’s coming to power in 2010 (Decision 37/2011). For this and several other decisions invalidating parliamentary statutes in 2011 see Boulanger and Lembcke, “Between Revolution and Constitution,” pp. 287–290. See my Post Sovereign Constitution Making, ch. 4; Boulanger and Lembcke, “Between Revolution and Constitution”; and Bánkuti, Halmai, and Scheppele, “From Separation of Powers to Government without Checks.” Cf. K. Kovács, “Changing Constitutional Identity via Amendment,” in P. Blokker (ed.), Constitutional Acceleration within the European Union and Beyond (London: Routledge, 2018), pp. 197–214. T. Koncewicz, “Constitutional Capture in Poland 2016 and Beyond: What Is Next?,” Verfassungsblog, December 19, 2016; M. Mazzini, “For Central Europe’s Illiberal Democracies, the Worst Is Yet to Come,” Verfassungsblog, July 7, 2017; and especially W. Sadurski and M. Steinbeis, “What Is Going on in Poland Is an Attack against Democracy,” Verfassungsblog, July 15, 2016; and P. Mikuli, “An Explicit Constitutional Change by Means of an Ordinary Statute? On a Bill Concerning the Reform of the

, ,  



horse race between government and Court that followed, the intention of the PiS led by Kaczynski was to remove a limitation on parliament to control and possibly amend by extralegal statutes Poland’s 1997 Constitution and to found a so-called 4th Republic free of the supposed taint of earlier roundtable negotiations with the Communist reformers. Finally, in Israel, where the Supreme Court has been long a thorn in the side of Likud-led governments, it would take only an absolute majority of the Knesset to pack the Court, reduce its jurisdiction, or even establish a new “constitutional tribunal” replacing its functions of guardianship of the weakly entrenched basic laws. Given the electoral system, however, and the requirements of maintaining coalitions, such efforts, despite much rhetorical heat by the ministers of justice, have remained so far on the level of projects. In the near future, a new right-wing government based on religious and nationalist parties alone may very well realize some or even all these plans.19 Without doubt these cases of constitutional struggle between apex court and the political powers were different in context, the exact stakes, and outcomes. What unites them all, however, is a political project that has been in each case rightly characterized as authoritarian populism.20 To make this case, however, we cannot rely either on polemical texts or especially on the self-description of the main actors, who with exception of Venezuela perhaps would eschew the populist label. The case must be made on the bases of theoretical considerations, and to this I now turn.

The Political Identity Called Populism What is populism? Given the pervasiveness and loose journalistic use of the term, attempts to define the phenomenon by induction are doomed

19

20

National Council of the Judiciary in Poland,” International Journal of Constitutional Law Blog, February 23, 2017. G. Stopler, “Introduction to I-CONnect/ICON-S-IL Symposium: Constitutional Capture in Israel?,” International Journal of Constitutional Law Blog, August 20, 2017. Whether Israel is on the verge of a “populist capture,” remains controversial, as this symposium shows. I find most convincing the views expressed in N. Mordechay and Y. Roznai, “Constitutional Retrogression in Israel,” International Journal of Constitutional Law Blog, August 23, 2017; and A. Harel, “The Triumph of Israeli Populism,” International Journal of Constitutional Law Blog, August 22, 2017. T. T. Koncewicz, “A Constitution of Fear,” Verfassungsblog, November 16, 2017; M. Steinbeis, “Enemies of the People?,” Verfassungsblog, November 4, 2016; B. E. Oder, “Populism and the Turkish Constitutional Court: The Game Broker, the Populist and the Popular,” Verfassungsblog, May 2, 2017.



 

to fail.21 It is better in my view to immanently criticize the best ideological attempt to justify populist politics, and thus reconstruct the main dimensions of the phenomenon from a logically coherent systematic argument. I have done this using the work of Ernesto Laclau22 and have derived four important elements of the political identity called populism. Populism: 1. Legitimates itself in terms of popular sovereignty by referring to a part of the population that supposedly incarnates the people as a whole; 2. Constructs a rhetorical chain of equivalences, from heterogeneous and incompatible demands of the segments of “the people” so identified; 3. Establishes friend and enemy relations, over a frontier of radical antagonism, thereby extricating (C. Lefort) “the people” from its enemies within the population as well as outside; and 4. Identifies the will of the extricated genuine “people” with the will of a group, and to avoid the possibility of a division, almost always with the name and will and even body of a single leader, generally the chief executive. These definitional elements, of course, need to be supplemented by historical and contextual considerations.23 Some of these follow from the definition here offered, as for example the hostility of all populisms to pluralism.24 Others, however, are only empirical as is the very common interpretation of democratic legitimacy in a purely majoritarian manner, 21

22

23

24

For some incomplete attempts, see the fine books of C. Mudde (e.g., the co-authored, with Cristóbal Rovira Kaltwasser, Populism: A Very Short Introduction [Oxford University Press, 2017]; B. Moffit, The Global Rise of Populism; and J. W. Mueller, What Is Populism? [London: Penguin Books, 2017]). All of these leave out at least one dimension needed to understand the main cases of today. C. Mudde, “The Populist Zeitgeist,” Government and Opposition 39 (2004), 541–563. In their definitions if not descriptions, Moffit neglects popular sovereignty, and Mueller and Mudde try to do without embodiment in a leadership. As against Moffit and Mudde, who define populism as a style and an ideology, I think of it as a political identity defined by these four dimensions. E. Lauclau, On Populist Reason (London: Verso, 2005); see my “Political Theology and Populism,” Social Research 80 (2013), 143–172. For further development, see Finchelstein, From Fascism to Populism in History. Here I reverse for logical reasons the stress of Finchelstein, From Fascism to Populism in History, who puts history first. I do not see how that is possible because no history can be reconstructed without concepts. I grant that our concepts and the changing ones of the actors may be different. What is needed, however, is a fusion of their horizons, not a conceptless description. See H. G. Gadamer, Truth and Method (Evanston, IL: Northwestern University Press, 2004). A point stressed by Mueller, What Is Populism? and Mudde, “The Populist Zeitgeist.”

, ,  



that is both inconsistent with the assertion that a minority can embody the people as a whole and even tends to disregard the fact that the supposed majorities relied on can be the product of electoral rules and low level of participation. Similarly, it is not inevitable, if very common, that populist movements theologize many or even all the four dimensions of the preceding definition by evoking fragments of a political theology analogous to elements of monotheism.25 Sometimes this interest can gain the support of some religiously motivated supporters26, but it is more generally articulated through the rhetorics and performances of their elite core of militants. It is certainly right to understand populism as a thin centered identity that needs one or another supporting ideology, for example socialism, nationalism, or religion, or their combinations to sustain it.27 Thus, populism can have rather obviously left- and rightwing forms, depending on both the supporting ideology and even more on the specific part of society is identified as the whole, and the part or parts that are deemed the enemy. For the latter, the left version tends to focus on elites and middle classes, as well as external actors. “The people” are thus defined in Laclau’s priceless terminology as “the underdog.” Right-wing populism also attacks elites and external powers, but its internal focus is generally an underclass, now including emigrants and refugees whom the elites supposedly privilege. The people, or more commonly the nation, is almost always identified in ethnic, linguistic, or religious terms. Thus it may be difficult to distinguish populism of the right from fascism and of the left from authoritarian forms of socialist mobilization, all which seem to more or less satisfy the four criteria offered here and all being pathologies of modern popular sovereignty.28 Thus, in my view, the origin of modern populism should be seen not only in the demise of fascism but, as it is clear from the work of Laclau, also the hardening of Communism into a statist ideology, and the collapse of its orthodox social theory that was clearly falsified by historical developments.29 Thus, in formally democratic settings at least, Marxism-Leninism, with its 25 26

27 28

29

See my Post Sovereign Constitution Making, ch. 6. A. Arato and J. Cohen, “Civil Society, Populism and Religion,” Constellations 24 (2017), 283–295. Mudde, “The Populist Zeitgeist.” P. Rosanvallon, Counter-Democracy (Cambridge: Cambridge University Press, 2008), pp. 265–267. See Arato, “Political Theology and Populism,” where I identify Sartre as the first ideologist of such a neo-communist populism. Indeed, shortly before he wrote Communists and



 

authoritarian formula of democratic centralism, lost its electoral appeal unless it turned populist (as the French Communist party) or social democratic (as under Euro-Communism). The point is right, however: The rhetorical stress on democracy in populist movements is absent only in fascism,30 even if it was purely ritualistic under authoritarian socialism. Even this distinction is, however, relatively clear only with respect to populism in power. Clearly, populism almost always begins as a social movement, yet Laclau and many others are wrong to neglect the possibility of such movements achieving political power. Such “success,” as already implied, is possible in three forms. First, a populist movement may achieve the election of a leader as the head of government, who cannot or will not form a populist government for a variety of important reasons. This form applies currently to the United States. Second, a populist leader under some circumstances can, usually including an overwhelming parliamentary, legislative majority, or a coup, establish a populist government capable of enacting policies supported by its heterogenous constituency. This form applies currently to Poland and Israel, and before 2010, at least, to Erdogan’s Turkey. Finally, a populist government can be said to have founded a new authoritarian regime, despite the remaining democratic trappings and rituals, when it has fundamentally changed the material, and usually formal constitution of the state, and is in a position to dominate not only courts but also formally competitive plebiscites and elections as well as elected bodies of national and local government. In this sense Peron’s Argentina, Fujimori’s Peru, the Venezuela of Chavez and especially Maduro, and the Russia of Putin established populist authoritarian regimes, whether these were or are fully consolidated. In principle at least, such a foundation of a new regime is possible without the intermediary form of a populist government but only if a revolution or a coup has taken place. Generally, however, a sequence can be reconstructed: first movement, then government, and finally regime. We may, of course,

30

Peace, the relevant text, the idea of People’s Democracy was invented to disguise the identity of political and economic paradigm in Central Europe with that of the Stalinist Soviet Union. There were other tools like the “popular fronts” in charge of “elections.” In China, Korea, and Vietnam, the populist formula of people’s republic concentrated on large peasant populations. The apparent success of Marxist-Leninism in Asia and Africa, lasting about three decades after World War II, depended on military conquest of power and the originally Maoist reformulation of the ideology to concentrate on peasant societies, quite to the contrary of the original Marxian doctrine. Finchelstein, From Fascism to Populism in History.

, ,  



insist on seeing these stages as a continuum involving increasing differences of degree. Whichever our point of view, stages or continuum, we can certainly posit that today the populist governments of Erdogan’s Turkey and Orbán’s Hungary are well on their way to establishing new populist-authoritarian regimes. It is only on the level of being a government, in my view, that there is a really sharp difference between populism and other authoritarian forms, especially dictatorships. A fundamental difference may not yet be there in the case of populist and many other authoritarian movements. And it may no longer be there when populism consolidates itself as a regime, in the sense of a new set of constitutional or quasi-constitutional principles for the operation of the political realm. It is only when populism is “only” a government that we should insist on its unique and fundamentally differences from dictatorships, defined as the fundamental primacy of prerogative power.31 Indeed, while populism in merely governmental power is certainly “illiberal,” it generally remains tied to electoral and plebiscitary legitimacy usually interpreted in a radically majoritarian fashion.32 Enrique Peruzzotti is right. The role of elections here is to confirm identity and identification.33 Nevertheless, this means that some constitutional rules still trump arbitrary will or decision. That stress on rules is not there under fascist governments and authoritarian socialist forms of power, both of which in any case rapidly establish new, revolutionary regimes. Yet the same stress may slowly disappear or be gradually reduced or eroded in the case of populism in government.34 It may happen abruptly and quickly when such a government is under threat of electoral defeat. There are few populist leaders like Indira Gandhi in

31

32

33

34

See E. Fraenkel, The Dual State (New York: Oxford University Press, 1941); A. Arato, “Good-bye to Dictatorships?,” Social Research 67(2000), 925–955. Finchelstein, From Fascism to Populism in History. Even on the level of “government,” his attempt to distinguish populism and fascism through reference to democracy/dictatorship and nonviolence/violence works only partially, because (1) Populism is called authoritarian, without clearly saying what authoritarian democracy is; (2) the violence of many populism is understated; and (3) the comparison of left populism should have been with authoritarian socialism that may not be much more violent. See his excellent piece “Regime Betterment or Regime Change?,” Constellations 24 (2017), 389–400. Thus, we may speak of populism in government as a hybrid regime, containing both democratic and authoritarian elements, though consistently reducing the liberal ones implicit in modern democracy. On this see E. Peruzzotti, “Populism as Democratization’s Nemesis: The Politics of Regime Hybridization,” Chinese Political Science Review, DOI 10.1007/s41111–017-0070–2.



 

1977 who risk completely free elections that can deprive them of authoritarian powers.35 Thus, the line between dictatorship and plebiscitary populism may be difficult to retain or even draw when an elected or reelected regime is in the process of subverting competitive elections altogether, as in Venezuela currently, and perhaps already in Turkey in 2016–2017. The democratic and rule-governed dimensions are already seriously challenged under populism in government, and this tends to happen under both right and left populisms, or their eclectic combination as the carriers of Putin, Orban, Erdogan, and Maduro show.36 The logical outcome, populism as a regime, would be a type of dictatorship, one possibly as distinct from fascism and authoritarian socialism as these were different from one another. Even as we have today some likely candidates representing this type of regime, it is too early to determine whether these will belong to a single new form or represent several.37 Here, I am more interested in the more common form, populism as government. Its customary neglect reveals a very important feature of the phenomenon: Even when in political power, populist leaders (and their supporters) imagine themselves to be still outside and opposed to it, fighting what is now often called a deep state and its inherited institutions – the bureaucracy, security services, plutocrats, and, yes, generally the courts. We have seen this peculiar self-understanding surface in all the cases mentioned, including recently in the United States. External political actors and institutions can also be cast in the same role as in the case of many European populists, even before they enter government, focusing their attacks on the European Union Commission as well as the European Court of Justice. But in the populist struggle against enemies, from Peron to Indira Gandhi, and from Fujimori to Orbán, the one constant is the attack against independent apex courts, that fully ceases only when such a body entirely loses its independence, and the ability to act independently, an important sign of the emergence of a populist regime. 35

36

37

Note, however, that under her emergency there were attempts led by her son, Sanjay Gandhi (with the slogan: “Indira is India, India is Indira”) to establish a more permanent authoritarian regime. See G. Austin, Working a Democratic Constitution: A History of the Indian Experience (Oxford: Oxford University Press, 2003). Arguing the contrary, Finchelstein, From Fascism to Populism in History, relies too heavily on the case of Argentina under Peron, and later Peronism. One candidate for a new shared regime type is B. Magyar, The Post-communist Mafia State (Budapest: Central European University Press, 2016). In my view, it is too early to so identify the three different regimes of Putin, Orbán, and Erdogan.

, ,  



The Harm to Constitutional Democracy in Attacks on Courts The attack on apex courts reveals a great deal concerning the logic of populism as defined here. Apex courts, from a democratic point of view, guard the differentiation (separation and division) of powers, none of which have the right to monopolize speaking in the name of the popular sovereign. Their role is therefore linked to notions of popular sovereignty significantly different than the populist interpretation in terms of incarnation. Important alternatives have been developed by R. Carré de Malberg with his notion of “national sovereignty” and in Claude Lefort’s concept of the empty space of power.38 From Sieyès’s constitutional jury to Marshall’s judicial review, and from Kelsen’s court to Ackerman’s preservational function, courts have first assumed and then were formally given the role of distinguishing between the democratic constituent power and the constitutionally delegated (constituted) powers of executives and legislatures. More radically still, since the Indian Basic Structure and Colombian Replacement doctrines we are increasingly accustomed to even the differentiation of the amending and constituent powers that an apex court can enforce through amendment review. Where an amendment rule is multi-leveled, courts logically assume policing also this type of differentiation involving alternative procedures of revision. Moreover, since the South African constitution-making process, we have come to understand the possible role of courts even in the making of new constitutions. In my view, in any of these versions of procedure the people as an entity is replaced by ascending levels of democratic legitimacy. Assuming, of course, liberal democratic constitutions, the role of courts in the defense of individual and minority rights is as important as the antiauthoritarian interpretation of popular sovereignty. The two matters are connected: Only by defending the separation of powers and the differentiation of constituent and constituted can the rights of individuals and minorities be protected against executive and legislative usurpation, as well as constitutional abrogation. Populism, however, on its own interpretation of popular sovereignty must resist all these relevant forms of power limitation and any agency seeking to enforce it. By identifying the genuine people’s will with its own, the populist leader or group inevitably sees the intervention of 38

See my two works cited, from Post Sovereign Constitution Making from 2016 and Adventures of the Constituent Power from 2017, where I discuss these matters and authors extensively.



 

courts as linked to the secret work of an oligarchical enemy, the deep state, or an external power. Once the will is incarnated, there is no reason to move to higher levels of legitimacy and to alternative procedures to test whether it is a genuine democratic will. Even the attempt to defend individual rights by courts becomes superfluous because the members of the authentic people supposedly need no rights against themselves, and their enemies must not be given rights to oppose the sovereign will. Thus, it is an interesting research question regarding why populist regimes that do produce new constitutions, like Orbán’s in Hungary, do not completely abolish constitutional courts that may represent the last important element of the separation of powers. Their surviving role is clearly more significant than that of elections in Soviet-type societies, as we see through the surprises that even packed courts offer their packers. My hunch is that the continued existence of constitutional courts in the Venezuelan and Hungarian new constitutions of 1999 and 2011 is connected to several issues of legitimacy as well as political calculation. One of these is surely the current great international prestige of constitutional courts (“the new constitutionalism”), which was entirely absent in the period before World War II. It may also have something to do with the relative conservatism of populism39 compared to revolutionary projects, with respect to maintaining both a competitive electoral setup, as well as some of the predictability and rationality of a capitalist order. As already argued, the abolition or complete disempowerment of constitutional courts would be at the very least an important sign of the transition from populism as a government to populism as a regime, that would be a dictatorship (open or hidden) with populist legitimation claims. Many sectors supporting the rise of populism to government may, however, take seriously the anti-dictatorial rhetoric of populist leaders targeting their enemies. Finally, preserving relatively strong constitutional courts, at least on paper, may also have to do with the two dimensions of time I have already stressed. Again, in the short run, a packed court is no danger to its packers, and in the long run, it may become a form of imagined defense of authoritarian “enclaves,” as in Chile under the 1981 constitution, or attack on antiauthoritarian enemies, as in Venezuela currently, as long as a “bionic” (i.e., extremely long term) appointment structure keeps judges in office long after the appointing government having been

39

Finchelstein, From Fascism to Populism in History.

, ,  



possibly voted out of office. I should, of course, stress that the court is not the only enemy of authoritarian populism. Paradoxically, in a possible future after a lost election with a new and different challenge coming from parliament, the grassroots, or the street, a court may even become a useful ally. We have just seen this alliance work in Maduro’s Venezuela, where a not-yet consolidated populist regime has now definitively replaced populism merely in government. The trick, however, is to assure both the apex Court’s lack of independence and its loyalty. The trick may not always work. Having an apex court, even a packed one, carries a risk, as we know from US history. Even President Roosevelt, who in the end appointed nine judges, could not count on their collective loyalty in a case such as Korematsu. The Warren Court was an even greater surprise to the president who appointed Earl Warren as chief justice. Without identifying with one another the different political forms and contexts, Viktor Orbán too was sorely disappointed by (the perhaps very few) acts of defection of Justice István Stumpf, who was originally one of his closest collaborators.40 Beyond mere formal existence, the occasional flashes of independence of these courts are connected to the important social and now international status of judges. Here we may have another significant distinguishing mark of populist government from populist (as well as fascist and communist) regimes and also military dictatorships, all of which certainly abolished both judicial independence and sometimes apex courts where they existed previously. The fact that an apex court may retain a still significant jurisdiction should not deflect us from the harm to constitutional democracy in attacks on courts by populism as a government even short of establishing a new, undemocratic regime. The goal is to make the judiciary pliant instruments of the executive, unable to police the separation of powers or to defend the rights of individuals and minorities when populist governments, true to their principles, come to threaten them. Moreover, even what is sometimes only the partial success in accomplishing these goals by populists should not fill anyone with confidence. Where one round of packing and jurisdiction weakening does not do the job, more rounds can and will likely follow, themselves enabled by even stepwise destruction of judicial independence. We have seen this logic of reiteration in several 40

See Arato, Post Sovereign Constitution Making and Boulanger and Lembcke, “Between Revolution and Constitution.” I am grateful to G. A. Tóth for reminding me that in general Stumpf has been a reliable supporter of the government on the Court. To me, however, (and probably to Orbán) even one major act of defection is significant.



 

countries, eventually weakening the possibility of free and fair elections even where they are not abolished. How likely is the completed transition from populist government to populist regime? All populist executives will seek, almost by definition, victory over the other branches of power and over societal pluralism. It depends on the context and on other forces in society whether a populist government would feel the need for and even more importantly risk the transformation of political identity into a populist regime, that is, a type of dictatorship. If such a government and its leader are willing to take the risk, the key identity change can come in a revolution or coup, as in the case of Peru under Fujimori or Russia under Yeltsin. But it may be coupled with a series of reiterated reformist steps including the marginally legal making of a new partially authoritarian constitution as in Hungary under Orbán and Venezuela under Chavez, or even with a series of unconstitutional amendments or statutes that become possible once the apex court is fully deprived of its ability to act, as in Turkey and recently in Poland. These steps may be resisted, but the question is how effectively.

The Cooperation between Courts and Civil Society in Fighting Populist Authoritarianism In his debate with Kelsen concerning constitutional review, Carl Schmitt depicted a “horse race” (Wettkampf ) between constitutional court and the political branches, a competition with the sovereign that in his view a court must lose. He was probably right for most cases, but not inevitably. Inspired by depictions of a long-ago battle between the South African Appellate Division and the apartheid government concerning the entrenched principles of the constitution,41 I have come to see the same horse race in terms of several rounds, where the early ones can be won by courts. Something similar can be shown to have happened in Venezuela, Turkey, and Hungary.42 Formally speaking, the battle is always between constitutional review and the amending power. The former can attempt to invalidate amendments and enable legislation. The latter can amend 41

42

D. Davis and M. le Roux, Precedent and Possibility: The (Ab)use of Law in South Africa (Capetown: Double Storey, 2009), ch. 2; I. Loveland, By Due Process of Law: Racial Discrimination and the Right to Vote in South Africa 1855–1960 (Oxford and Portland, OR: Hart Publishing, 1999). See my Post Sovereign Constitution Making and Adventures of the Constituent Power.

, ,  



the membership, composition, form of appointments, and jurisdiction of apex courts. There is only one such a contest, the Indian Supreme Court v. Indira Gandhi, that the executive eventually lost, and this only after a lost election that, in the style of a populist government craving democratic legitimacy and approval, the prime minister felt constrained to call.43 On the contrary, after early setbacks, Chavez, Erdogan, and Orbán seemingly managed to tame their apex courts. We do not yet know the outcome in Poland or in the case of Trump, for that matter, after the latter’s very significant early losses. But the interesting question is why courts can win in one phase and yet wind up losing in the next or in subsequent ones. It may not be simply a matter of early and late phases of the conflict. I offer a hypothesis initially based on the already mentioned South African example, having to do with the attempt of the apartheid government to deprive colored voters of their franchise, an act limited by the “entrenched clauses” of the Constitution (South Africa Act) of 1910. In 1952, the Appellate Division (Harris I) invalidated a statute that sought to bypass the entrenchment clauses. The government responded first by trying to turn the legislature into a higher court and, after another defeat (Harris II), by packing the senate to achieve the majority required. For good measure the apex court was packed, but it had another opportunity to declare the senate packing unconstitutional. Not only the new members but also most of the judges responsible for the two earlier decisions now went along with the government (Collins v. Minister of the Interior, 1956). What happened? As an explanation, Dennis Davis and Michelle le Roux point to the dramatic decline of social mobilization that initially supported the court decisions.44 My two hypotheses are the following: First, courts can win their battle against authoritarian populists as long as they have the strong support of initiatives within civil society and, second, civil society initiatives against populist regimes not only can reenforce the role of courts but also can gain new strength for themselves in such effort.45 43

44 45

Both Finchelstein, From Fascism to Populism in History, and Moffit, The Global Rise of Populism, insist on this characteristic that I believe applies to populist government but no longer to the regime form. Davis and le Roux, Precedent and Possibility, pp. 32–33. This thesis, N. Figureoa kindly reminds me, is supported by the case of the Colombian Constitutional Court’s victory over the right-wing populist President Uribe, which would not have been possible without extensive democratic protest and mobilization. See his already cited New School dissertation for this case.



 

Populism in my view is particularly susceptible to civil society challenge, obviously more so than classical Fascist or Stalinist regimes. This is so because of both the link and the fundamental difference between civil society–based and populist movements. Here Rosanvallon has offered the most interesting argument. Representative democracy, he rightly stresses, has fundamental legitimation problems, to which alternative democratic inputs respond. He calls these, somewhat misleadingly, “counter-democracy.”46 We have stressed most of what he has in mind as the influential politics of civil society.47 In an argument anticipated by Rawls and Habermas,48 one of the most important democratic channels are, according to both our argument and Rosanvallon’s, the courts, which can be and are often utilized by civil society-based initiatives. At the same time, however, the anti-political trends within civil society can be radicalized by populism. Moreover, civil society has an ambivalent relation to courts, not only empirically but also structurally. Where liberal rights are constitutionally established and even where they can be interpreted into constitutions, courts can be their major defenders. The institutionalization of a strong civil society is dependent on fundamental rights of personhood, communication, and participation.49 Thus civil society is dependent on the courts especially when its groups and initiatives assert their rights. But civil society can assert rights and claims in advance of their institutionalization, or even prior to defense by courts, as in the case of many social, economic, and cultural rights. Because courts can be conservative concerning a given constitutional and legal order, conflicts can emerge between initiatives from below and judicial bodies. This is especially the case in terms of the outer limits of civil society action, namely civil disobedience, strikes, and boycotts. As in the United States in the so-called Lochner era, courts can indeed play a very conservative role when their actions are rightly and strongly opposed by unions and civil initiatives. Thus, it depends on a given context whether courts will assert 46

47

48

49

Rosanvallon, Counter-Democracy, is misleading because he makes it appear as if the forms of counter-democracy were not democratic, thereby reducing against his own intentions, democracy to majority rule. J. L. Cohen and A. Arato, Civil Society and Political Theory (Cambridge, MA: MIT Press, 1992). J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge, MA: MIT Press, 1998). For this argument, see Cohen and Arato, Civil Society and Political Theory .

, ,  



the rights of civil society, and whether civil society-based mobilization will emerge in defense of threatened courts. Moreover, movements and initiatives have a life cycle. Thus, persistent and long-term mobilization on behalf of constitutionalism is less likely than on behalf of social issues of more immediate interest. Finally, even if the politics of civil society as against populism is inevitably and self-consciously plural, some of its forms (e.g., at times the working-class movement) can view themselves as monolithic, as the incarnation of the people as a totality. Just as there are anti-party parties in politics, we also have anti–civil society movements in civil society. When this happens, movements will be inevitably suspicious of courts, regardless of whether these have played a conservative role. When that suspicion goes as far as attacks, we are facing not simply movements of civil society but most likely populism as movement. Of course, the situation changes once again when populism elects a leader and especially when it’s able to form a government, with the tendency at least to create a new regime. If and when a populist segment emerging from civil society becomes the government, the plurality of civil society will still likely survive or reemerge both because of the conservative limits of populism and especially when the chain of equivalences proposed by populism falls apart, as it must. Unlike under fascism or authoritarian socialism (except their stage of dissolution), we have almost everywhere seen strong civil society–based challenges to populism in government. The time to act, however, is when populism is only a government because once a populist regime is founded and consolidated it will become much more difficult. To be able to act against a populist government partly stemming from civil society, relying on democratic elections, and even democratic slogans like majority rule is difficult. A different theory of democracy is thus needed as an alternative to monolithic, majoritarian doctrines of popular sovereignty. A stress on civil society helps by indicating that voice and participation from below, inevitably plural, cannot be monopolized from above, especially by a leader or leadership. The idea of a plurality of democracies is equally important.50 According to this, democracy ought not and cannot work through a single channel of representation. The legislature and an elected president are two important channels. Whether united as under parliamentarianism

50

Ibid., pp. 412, 416ff.



 

or separated as in presidential government, these are, however, not the only means of representation. Local and regional government are other channels still. And so are the courts. In this context we should regard the famous counter-majoritarian dilemma as mainly bogus. True, courts are generally not elected, but their representative quality depends on other considerations. Elected legislatures can easily form corporate interests as Rousseau already knew, and the idea that they are the only or even best embodiment of the popular will is false. The same is even more the case for elected presidents. All elected officials must concern themselves with their reelection, or at least their party’s future success. Neither depends primarily on responsiveness to public opinion. Retrospective judgment51 may not work to assure accountability, is negated by the advantages of incumbency, and in any case is likely to come too late. Money and media pressure can easily trump societal forms of influence. Of course, there is also societal influence on elected representatives. But there is also the same in the case of courts, as the recent gay rights struggle in the United States clearly demonstrated. Civil society’s influence works best when there is a plurality of potentially conflictual political agencies that can be addressed. When it comes to constitutionally relevant issues, courts are the major relevant actors. When they are under threat or lose their independence, civil society loses, irrespective of the issues at hand. On balance, therefore, despite the importance of the cause President Roosevelt represented, it was very important that he lost his effort to pack the court and to undermine its independence. Had he won, it is possible that the American welfare state could have been more developed. But we would not have had the Supreme Court play a leading role in civil rights, rights of privacy, and the limitation of presidential emergency and war powers. Populism is a pathology of civil society, or of Rosanvallon’s counterdemocracy. This pathology effects pluralistic initiatives of civil society as well. Given the conservative and oligarchy defending histories of many courts, it is very possible that especially left-oriented initiatives will be hostile to courts. Indeed, populist regimes too can be shielded by packed courts. And yet, court-oriented action remains potentially an important channel for civil society initiatives. When representation through elections fails, courts yield a second democratic channel that becomes all the more important under a populist government. It is an important task, 51

See B. Manin, The Principles of Representative Government (Cambridge: Cambridge University Press, 1997).

, ,  



therefore, to organize on behalf of judicial independence and to engage in forms of discourse to which courts can positively respond. Conversely, the survival of courts as serious institutions depends on their openness to civil society demands and challenges. Populist authoritarianism can be resisted. But it may take a combination of institutional and extrainstitutional action to accomplish its defeat. Two, strangely enough, related examples will indicate what I have in mind. After the beginning of the attacks on the Constitutional Court in Poland by the PiS government, a broad social movement in defense of constitutionalism was mobilized.52 The public actions involved were impressive. They could no longer address the Court whose legal majority was struggling against a packed version. But it may not be too much to postulate that, aside from the many European critiques of the erosion of Polish constitutionalism, the influence of popular democratic movement had a great deal to do with President Duda’s (very likely temporary) Pauline conversion,53 when he chose to veto the last government statute that could have been the final destruction of judicial independence, and thereby Polish constitutionalism. Coming closer to home, the United States, in my view Donald Trump, clearly a populist leader, has only very partially been able to establish populism in government. While some of the figures, such as Vice President Pence, indeed represent his grassroots support, others, the generals and the billionaires, form a government that is more plutocratic than populist, that is, openly representing sectional elite interests. It has only become even more clearly plutocratic with the firings of General Flynn and Stephen Bannon. On the level of policy, this government’s results are also mixed. Through executive order, many of the anti-immigrant demands of the right-wing populist militants have indeed been decreed. Down to this day, however, the courts have resisted this use of presidential prerogative, most recently in the case of sanctuary cities. On the level of legislation, the president’s plutocratic supporters have not been able to accomplish the signature goal of repealing the Affordable Care Act (“Obamacare”), with a really huge grassroots civil society mobilization, 52

53

www.euractiv.com/section/justice-home-affairs/news/thousands-protest-coup-againstconstitution-in-poland/; www.iwm.at/transit/transit-online/committee-for-the-defenseof-democracy-in-poland-rebellion-of-the-beneficiaries-of-the-transformation/. Cf. the two blog entries by M. Matczak, “Is Poland’s President Duda on the Road to Damascus?,” Verfassungsblog, July 26, 2017, and “President Duda Is Destroying the Rule of Law Instead of Fixing It,” Verfassungsblog, September 29, 2017. The first was apparently overoptimistic, but the struggle is not yet over.



 

led by the so-called Indivisible and powered by women, having played a decisive role. But, it is now very likely that a plutocratic tax reform involving huge redistribution from poor and middle strata to the wealthy will be enacted. But we are facing even greater dangers in the United States than more regressive taxation and dramatically unbalanced budgets for the next period. While the attempt to form a populist government has been a mixed success, there is a shortcut to a populist regime, without even formal constitutional change as in Hungary and Turkey. This shortcut, which is being attempted in Poland, is court packing.54 I do not have in mind merely the appointment of new federal trial and appeals court judges, in a procedure that has always been highly politicized. Now it has become even more so because of the unwise removal of the filibuster in the case of at least federal district and appeals judges by frustrated Democrats.55 Given the nevertheless successful resistance of Republicans to President Obama’s judicial appointments, President Trump now will be able to make an unprecedented number of legal appointments. As we have seen in the case of Roosevelt’s nine new judges, such use of the appointment power in the United States is not court packing but only a function of the unfortunate modus operandi in place. And it would constitute only a step, open to reiteration, toward the replacement of liberal by a new and different constitution. It is the next step that may pass the threshold to a populist-plutocratic regime. There is now a plan proposed by intellectuals of the right-wing Federalist Society, a plan that Trump is bound to love to, increase the size of the federal judiciary by 30 to 50 percent by the next session of Congress, given the uncertain outcome of the 2018 elections. All this can be done in the United States 54

55

R. Klain, “Conservatives Have a Breathtaking Plan to Pack the Courts,” Washington Post, November 22, 2017; L. Greenhouse, “A Conservative Attempt to Weaponize the Courts,” New York Times, November 23, 2017. For the text, see S. Calabresi and S. Hirji, “Proposed Judgeship Bill” (November 7, 2017). Northwestern Public Law and Legal Theory Series, No. 17–24, https://ssrn.com/abstract=3067662. This resembled a possible outcome to the Polish Liberal government’s failed attempt at preemption, already discussed. It was pushed by rightly indignant Democrats and was a huge mistake nevertheless. There is a good argument to be made, not only that the rules for constituting courts should be “constitutional” but also that judicial appointments should always be consensual. It was authoritarian populists in Hungary, Turkey, and Poland who abolished or reduced consensual procedures for the appointment of judges. Some wrongly characterized some of these episodes as entirely benign or as “unpacking.” See A. Bali, “Unpacking Turkey’s ‘Court-Packing’ Referendum,” MERIP, November 5, 2010, www.merip.org/mero/mero110510.html.

, ,  



by ordinary legislation, though in my view at least the law would not be filibuster proof. Ron Klain suggests the court-packing provision could even be included in the current tax bill, one that is free from filibuster under the “reconciliation rule.” I disagree, because under Senate rules only the budgetary parts of such a bill could be passed by simple majority. But the Senate could overrule its parliamentarian, and even move to abolish the 60-vote threshold. And it may be overoptimistic to expect the current Supreme Court to judge such a statute unconstitutional,56 both because the Senate constitutionally controls its own rules and because the size of the courts in the United States, including the Supreme Court, has always been a legislative rather than formally constitutional matter. It is a similar step leading to “court capture” that has been (perhaps only temporarily) resisted by President Duda in Poland, previously a willing organ of the government. Will the Republicans in the US Senate follow the example of Democrats in 1936 who resisted Roosevelt’s courtpacking scheme? I think possibly, and right now there may be enough of them who would wish to doom the scheme. But this will happen only if they are put under the same organized popular pressure as in the case of the health care bill. But do the organized militants realize that the health of the Constitution is almost as important as the health of individuals? We will see. It may be too early to resist populism, when it is still a movement, using instruments such as “militant democracy” without attacking the pluralism of civil society.57 It may, however, be too late by the time a new regime has been founded and consolidated. The time of resistance for both courts and civil society is during the intermediary forms: either under populism as government or even after the election of a populist leader who tends to abuse his powers. In the United States that time is now. 56 57

Greenhouse, “A Conservative Attempt to Weaponize the Courts.” See the debate in A. Sajó and L. R. Bentch (eds.), Militant Democracy (The Hague: Eleven International Publishing, 2004).

16 Judicial Power in Processes of Transformation        .    ß

Introduction Some 30 years ago, everybody who was somehow involved in the events following the fall of the Berlin Wall in November 1989 was certain to understand the meaning of transformation: the transition from a polity’s authoritarian, mostly one-party rule to an order of pluralist democracy, based upon free, fair, and equal elections, securing the freedom of competitive political parties, the constitutional guarantee of the freedoms of press, assembly, association, religion and private sphere, the protection of rights through an independent judiciary, of rules and institutions safeguarding the accountability of the governors vis-à-vis the governed, in a nutshell: liberal democracy as it prevailed in the states of the EuroAtlantic sphere of the “West.” Arguably this self-assurance within the circles that invested much political and intellectual work in the transition of the former Soviet-style regimes to democracy was corroborated by Francis Fukuyama’s famous pronouncement of the end of history based upon the claim that “[t]he triumph of the West, of the Western idea, is evident first of all in the total exhaustion of viable systematic alternatives to Western liberalism.”1 As we will see before long, this was a premature judgment, but it certainly reflected the spirit of optimism and expectation at the dawn of a democratic era that many people in the communist societies of Central and East European had cherished for a long time. While the popular call for democracy was apparent, its meaning was equivocal. There is no such thing like democracy sans phrase. Democracy in the understanding of the Euro-Atlantic world means constitutional democracy, and even this qualification encompasses a broad variety of constitutional democracies, the most apparent being the divergences between parliamentarian and 1

F. Fukuyama, “The End of History?,” The National Interest 16 (1989), 3–18 [3].



     



presidential systems of governance and between the Westminster-style parliamentary sovereignty and the political regime of the supremacy of the constitution. Another variance exists with respect to the role of the judiciary within the system of government. Due to an early seminal judgment of the US Supreme Court,2 the US Constitution was unique until the end of World War II – with two short-lived exceptions in Austria and Czechoslovakia in the interwar era – in establishing a judiciary strong enough to claim judicial review, that is, the right to examine the constitutionality of legislative acts. In other words, until the end of World War II judicial review did not belong to the essentials of constitutionalism in Continental Europe, let alone the United Kingdom.3 The rise of the United States to the leading world power of the West as a consequence of World War II increased the influence of US constitutional reasoning in Europe and left important traces especially in the new constitutions of the two defeated post-fascist states, Italy and Germany. Both constitutions included the new institution of judicial review.4 The countries that underwent the second wave of democratization in the 1970s followed suit.5 Unsurprisingly, all post-communist countries of East and Central Europe that established constitutional orders in the third wave of democratization in the 1990s introduced – mostly under the advice of West European or US constitutional experts – constitutional courts that had the competence, inter alia, of judicial review.6 As Ran Hirschl has shown, this expansion of apex courts with the authority of judicial review has even become a worldwide phenomenon in the last 25 or so years.7

2 3

4

5

6

7

Marbury v. Madison, 5 U.S. 137 (1803). A. Stone Sweet, “Constitutional Courts,” in M. Rosenfeld and A. Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), pp. 816–830 [816–817]. Italy, Constitution of December 22, 1947, Art. 134 para. 1; Germany, Basic Law of May 23, 1949, Art. 93 para. 2. Cf. Greece, Constitution of October 3/4, 1974, Art. 100 para. 1 (e); Spain, Constitution of December 27, 1978, section 161(1) a); Portugal, Constitution of April 25, 1976 Art. 223 para. 1. E.g., Bulgaria Constitution of July 13, 1991, Art. 149 para. 1 no. 2; Hungary Constitution of October 23, 1989, Art. 32/A; Poland Constitution of April 2, 1997, Art. 188. R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Cambridge, MA: Harvard University Press, 2004); R. Hirschl, “The New Constitution and the Judicialization of Pure Politics Worldwide,” Fordham Law Review 75.2 (2006), 721–753.



 

Modes of Transformation and the Role of the Judiciary This seemingly global tendency toward judicialization of politics does not mean that all constitutions, old and new ones, breathe the same spirit of politics. Rather, we may expect that the transfer of a previously unknown single constitutional element from a foreign constitutional culture will occur in a process of mutual adaptation of the new institution and the traditional constitution. This implies demanding presuppositions. The migration of constitutional concepts requires a certain degree of transnational communication, intellectual exchange, mutual openness, and receptivity of the involved societies, including the capacity to decontextualize one’s own and the incoming new concepts. In other words, we must presume the existence not only of a global society but also of a global concept of constitutionalism to conceive of the idea of migration, transfer, or borrowing of constitutional concepts.8 Hence, to understand this variety with a view on the outcome of the processes of constitution-making in the East and Central European postcommunist countries we must take a closer look at the character of their new spiritual and political environment. From the vantage point of a historian, each nation with a democratic constitution can be described and analyzed as having taken a particular path to democracy. Indeed, if we compare European countries, for example, the United Kingdom, France, Italy, Germany, Spain, Poland, Hungary, and Czech Republic, the constitutional historian will show us that each of them experienced quite different first steps to constitutional democracy, depending largely upon the character and the material and symbolic resources of the preceding authoritarian regime; the societal roots and the power of the social forces that struggled for the defeat of the regime; and a broad variety of contingent factors such as the actions (or inaction) of foreign governments or mere accidental events. Despite a wide-ranging accordance among the constitutions of “liberal democracies” concerning basic principles such as the separation of powers, the rule of law, the democratic legitimation of public authority, the accountability of public officeholders, and the guarantee of fundamental rights, the student of comparative constitutionalism will sense

8

The outcome of an extensive debate of the conditions of constitutional migration is documented in G. Frankenberg (ed.), Order from Transfer: Comparative Constitutional Design and Legal Culture (Cheltenham, UK, and Northampton, MA: Edward Elgar Publishing, 2013).

     



different characters among them. I assume that the character of a constitution is largely shaped by what Bruce Ackerman calls the constitutional moment, a process of revolutionary changes including the mode of power shifting, the allocation of the resources for the constitution of a new regime, and, of course, the process of constitution-making.9 A preliminary and non-exhaustive list includes four ideal types: (1) The type of a violent revolutionary upheaval as the dominant feature of the regime change, followed by the invocation of the constituent willpower of the people, the people defined as the sum total of those who were subjects of the old regime and hence are now the rulers of the new order. This approach includes the assertion that the people’s sovereignty means its right to impose its social and political ideals upon the whole society. The constitutions that originated from the French Revolution, the Soviet revolution, and the German revolution of 1918/1919 are paradigmatic of this type. (2) The type of a violent revolutionary upheaval of an internally rather cohesive fraction of the sum total of the subjects of the old regime, defined in ethnic terms and claiming their liberation with the aim of an ethnically homogeneous political and social order. Invoking the constituent power of that ethnically defined fraction the revolutionary upheaval amounts to the likelihood of a civil war that divides the society. Depending upon the outcome of this conflict it results either in a constitution that is a disguised cease-fire among antagonistic forces that settle in different federal or quasi-federal entities of the state or in outright secession; obvious examples are the successor states of the former Yugoslavia in the 1990s. (3) The type of regime change imposed by the coercive, mostly military force of an (alliance of ) external power(s) that define guidelines for a new constitution concretized by new political elites largely selected and entrusted by the victorious power(s). The resulting constitution is likely to embody the constitutional spirit of the imposing power with a passive native population that initially acquiesces to the imposed order and during history intrinsically adopts its main features; post–World War II Germany and Japan are cases in point.

9

Cf. A. V. Bogdandy et al., “State-Building, Nation-Building, and Constitutional Politics in Post-Conflict Situations: Conceptual Clarifications and an Appraisal of Different Approaches,” Max Planck Yearbook of United Nations Law 9 (2005), 579–613 [603 ff.].



 

(4) The type of a largely peaceful and evolutionary transition to a postauthoritarian political order, made possible by the implosion of the old regime and its lack of resources to effectively resist the forces that struggle for a fundamental change of the power relations within the society. “Evolutionary” means a process-oriented use of law as an instrument to steer the transition from an authoritarian to a liberal democratic order; post-communist Hungary is the most prominent example. Let me briefly relate these four types of regime change to the idea of a constitutional court: (1) A constitution whose source is attributed to the founding willpower of “the people” as represented in a constitutional assembly presupposes of “the people” as a pre-constitutional entity that devises the constitution as the institutional embodiment of the people’s power. Its authors share the belief, in the words of Hannah Arendt, “that power and law spring from the selfsame source.”10 Hence a constitution of the people’s sovereign power is likely to articulate the people’s aspiration not only to disrupt the continuity of the previous political system and to found a new polity, but, moreover, to design a constitution that preserves this spirit of the people’s willpower as much and as long as possible.11 They will tend to reject the institution of a constitutional court altogether. None of the French constitutions since 1791 that may serve as the paradigmatic tradition of this line of constitutional reasoning included a constitutional court.12 This has changed under the Fifth Republic and its constitution of 1958, largely inspired by General de Gaulle. In a landmark decision of 1971 the newly created Constitutional Council (Conseil constitutionnel) opened the door for the gradual introduction of the possibility to submit promulgated laws to its constitutional review.13 A restricted version of this initial kind of constitutional review has

10 11

12

13

H. Arendt, On Revolution (New York: The Viking Press, 1963), p. 164 (ch. 4, sec. III). Cf. U. K. Preuss, “Perspectives on Post-Conflict Constitutionalism: Reflections on Regime Change through External Constitutionalization,” New York Law School Law Review 51.3 (2006/2007), 466–494. Cf. J. H. Merryman, “The French Deviation,” American Journal of Comparative Law 44.1 (1996), 109–119. Conseil Constitutionnel Decision no. 71–44 DC of July 16, 1971.

     



meanwhile been incorporated in the French constitution in 2010 (Art. 61).14 (2) The constitution that stems from the arrangement of antagonistic political forces of a country can be expected to urgently need the institution of an impartial arbiter who has the authority to peacefully solve conflicts between them. Because conflicting interpretations of the constitution – which is essentially an agreement about a ceasefire – can be anticipated, the establishment of a constitutional court would be the obvious option. However, it is the almost existential importance of a constitutional court that may turn out to be an unsurmountable obstacle to its instituting: The selection of the judges is likely to become a protracted and finally perhaps unsuccessful process because each party is more interested in judges who in case of a conflict will be biased toward its respective political position rather than being primarily loyal to the law and its strictly neutral interpretation that may entail that they lose a case. After all, the stakes are high, as we will see. Moreover, even if in fact the establishment of the constitutional court succeeds in such a politically tense constellation, the court is under the permanent stress to gain or not to lose, respectively, the trust of the major political forces. Efforts in this direction could easily have the opposite effect, undermine the court’s authority, and disqualify it as a credible and successful problem solver. The Kosovo Constitution is paradigmatic of the attempt to find a balance between the interest of the majority population and the concern for national minority groups with respect to the composition of the Supreme Court and the Constitutional Court.15

14

15

For details see O. Pfersmann, “Concrete Review as Indirect Constitutional Complaint in French Constitutional Law: A Comparative Perspective,” European Constitutional Law Review 6.2 (2010), 223–248; Th. Fleiner and C. Saunders, “Constitutions Embedded in Different Legal Systems,” in M. Tushnet, T. Fleiner, and C. Saunders (eds.), Routledge Handbook of Constitutional Law (New York: Routledge, 2013), pp. 21–32. Cf. Constitution of Kosovo of 15 June 2008, Art. 103 para. 3: “3. At least fifteen percent (15%) of the judges of the Supreme Court, but not fewer than three (3) judges, shall be from Communities that are not in the majority in Kosovo.” Art. 114 paras. 1 and 3 (“1. The Constitutional Court shall be composed of nine (9) judges . . . 3. The decision to propose seven (7) judges requires a two thirds (2/3) majority of the deputies of the Assembly present and voting. The decision on the proposals of the other two (2) judges shall require the majority vote of the deputies of the Assembly present and voting, but only upon the consent of the majority of the deputies of the Assembly holding seats



 

(3) The relevance of a constitutional court in an imposed constitution depends, of course, upon the position of the imposing power on this matter. Thus, after World War II, when the United States imposed its constitutional ideas on Japan and Germany, they successfully urged their new allies to include constitutional review in their constitutions. The historical background of this case of constitutional migration by imposition is markedly influenced by the character of the American Revolution as a revolution of “the people,” which was markedly different from “the people” of the French Revolution.16 Obviously “the people” of the American Revolution did not consist of a multitude of institutionally bare and atomized men and women but of individuals and groups who were embedded in an institutional infrastructure on the local and the state level in the first place. Here, the politically enabling function of institutions including courts was a constitutive element of the revolution. It is not by accident that the American people have been characterized as an “invention” that happened amidst the contentious crafting process of the US Constitution.17 Although the invention of judicial review in Marbury v. Madison in 1803 was not predetermined in the text of the US Constitution, it reflected precisely the quintessence of the American Revolution. Whether this is an obstacle to its successful global migration through imposition on other polities is, of course, a matter of dispute. The case of Germany, where the Federal Constitutional Court is highly respected among broad segments of the population, gives rise to the supposition that the American graft on the quite peculiar German constitutional tree produced an original and sustainable new plant. (4) Constitutionalization through a piecemeal process of transition is a relatively recent mode of constitution-making that reflects a cautious and experimental approach to establish a system of constitutional government. It aims at combining a break with the past of the previous regime in constitutionalist ways, that is, to sanction and correct past injustices by means that respect standards and rules of a Rechtsstaat. Obviously this path of sociopolitical new beginning is, as

16 17

reserved or guaranteed for representatives of the Communities not in the majority in Kosovo.” Cf. Arendt, On Revolution, pp. 69ff., 88 ff. E. S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York : Norton & Company, 1989), pp. 263 ff.

     



Ruti Teitel observed, faced with “profound dilemmas characteristic of these extraordinary periods.”18 At least the peoples of the East and Central European post-communist countries of transition had lost all confidence in the problem-solving capacity and wisdom of the power of “the people” as a more or less coercively fabricated unity and almost enthusiastically established constitutional courts as trustworthy guardians of the new political order that did not rest upon collective power but on law. Hence, transition through gradual constitutionalization appears to be the ideal approach for the establishment of constitutional courts. This path has two important implications: First, it is law, not willpower that is meant to determine the process of transition to constitutional democracy. However different the understanding of law among the newly emerging political elites may be, we can assume that they adhered to the essential idea of law as an institution that mediates competing, even incompatible and antagonistic, claims to a stable political order under the regulative, though inherently contested idea of justice not just for social classes but also for all individuals living under the constitution. Hence, the concept of transition from authoritarianism to democratic constitutionalism through law entails the necessity of rules about rulemaking for the process of transition. Second, because it is impossible to create a completely new legal order ex nihilo, it is necessary to organize the transition by making a – selective – use of law of the old regime. Consequently, during the transition process inconsistent legal rules will coexist and create the need for a mechanism to solve this ambivalence, which in its part is consistent with the idea of law. This is an important element of the role of a constitutional court during the period of transition. Laszo Sólyom, the president of the Hungarian Constitutional Court in its first post-communist period from 1989 to 1998, speaks of “‘transitional constitutionality’ different from the ‘normal’ one,” referring to the key problems of the transitional period, namely how to treat the crimes of the previous period (question of retroactive justice), the “lustration” of the agents of the secret police of the former regime (protection

18

R. Teitel, “Transitional Rule of Law,” in A. Czarnota, M. Krygier, and W. Sadurski (eds.), Rethinking the Rule of Law after Communism (Budapest and New York: Central European University Press, 2005), pp. 279–294 [279].



 

of private data), and the indemnification of the victims of the former regime (restoration vs. prospective view).19 Considering the high professional and ethical standards that both the political elites and the ordinary citizens normally set for members of constitutional courts – neutrality, objectivity, fact-mindedness, and integrity vis-à-vis the political process – the latter play a crucial role for generating trust, confidence, and stability especially in a process of institution building, which proceeds experimentally through trial and error. Thus, it suggested itself to surmise that the post-communist country that gave birth to the most powerful constitutional court during the first two decades of transition – Hungary – owed this achievement to the fact that it had embarked most consistently and successfully upon the path of slow and gradual transformation by law. However, to many observers’ great surprise, of all post-communist transformation countries it is Hungary that has become the spearhead of a fervent anti-liberal political tendency in the European Union, whose first prominent victim has been the Hungarian Constitutional Court, closely followed by the Polish Constitutional Tribunal.20 How can we explain this mystery?

“Transitional Constitutionality” Before I address this question, I want to give a brief account of the peculiarities of the problems that constitutional courts faced in the transition from authoritarian regime to constitutional democracy as passed on in the spirit of the American and the French revolutions of the eighteenth century. To characterize the exceptional character of the constitutional problems and solutions of the period of transition, I borrow Sólyom’s label “transitional constitutionality” as distinct from “normal constitutionalism.” To begin with, the tasks and the related functions of constitutional courts may offer an explanation for their special character. To differentiate I suggest three functions, namely the quasi-legislative, the quasijudicial, and the quasi-constitutive. I add the prefix “quasi-” because, viewed from the vantage point of the concept of separation of powers, these functions are not genuinely legislative, judicial, and constitutive, 19

20

L. Sólyom, “The Role of Constitutional Courts in the Transition to Democracy: With Special Reference to Hungary,” International Sociology 18.1 (2003), 133–161 [137 ff.]. Cf. B. Bugarič and T. Ginsburg, “The Assault on Postcommunist Courts,” Journal of Democracy 27.3 (2016), 69–82.

     



respectively. The distinction as such is largely based upon a recently published comparative study (in German language) about two constitutional courts in periods of democratic transition, namely the German Federal Constitutional Court after World War II and the Hungarian Constitutional Court after the collapse of the Soviet empire after 1990.21 The quasi-legislative function is basically embodied in the courts’ power to judicial review, that is, their authority to protect the supremacy of the constitution by guarding the conformity of the legislature’s acts with the constitution. Within the framework of an established constitutional democracy, this function implies the authoritative interpretation of the meaning of the constitution in concrete cases and hence to settle the indeterminacies of the wording of the constitution. This is a standard obligation of constitutional courts under “normal constitutionality” worldwide. Yet in the transition period of a post-authoritarian country this function is overlapped by the particular challenges of this episode. Although one of the first steps after the overthrow of the old regime consisted in the creation of a new constitution or at least in the profound alteration of the previous constitution, this does not mean that reasoning and acting in the new normative universe of constitutionalism has widely gained a foothold even among the new elites, let alone the ordinary citizens and the officeholders of the old regime who had not been replaced. In the light of these circumstances, the constitutional court does not primarily guard the integrity of the constitution by authoritatively interpreting its meaning in concrete situations and filling the gaps of indeterminate constitutional provisions. Rather, it has to clarify and teach the meaning of the constitution and of constitutionalism altogether. By way of interpretation and explication of the new constitution, it has to bridge the gap between the previously dominant legal dispositions of the old regime and the normative logic of the new societal and political order. In a way, it is the role of a normative preceptor, that is, a teacher of constitutional normativity. A second issue of constitutional courts in post-authoritarian countries, which is nonexistent or at best marginal in established constitutional democracies, is their aforementioned responsibility to deal with the coexistence of bodies of law of the old regime with the newly established 21

Christian Boulanger, “Hüten, richten, gründen: Rollen der Verfassungsgerichte in der Demokratisierung Deutschlands und Ungarns” (doctoral dissertation at Freie Universität Berlin, Department of Political Science, Berlin, 2013).



 

principles of the rule of law. This legal dualism must be balanced, and frequently this task has been assigned to a constitutional court. In essence, it is the question of how much law of the old regime should and perhaps must be accepted in the new political system on grounds not only of legal certainty but also of mere economic or political expediency, although its content is incompatible with legal principles of the new constitutional order. This is the core of what is normally dealt with under the title “transitional justice”22 Obviously, this is a task that verges to that of the constituent power. I will come back to this issue immediately. Martin Shapiro pointed to the success stories of the constitutional courts of postwar Italy and post-communist Hungary. “In both,” he stated, “because of peculiarities in their transition to democracy, old bodies of law containing rights-hostile provisions remained in force and the capacity of normal legislative politics to undertake their massive revision was absent. In both, a constitutional court is established with the expectation that it will, piecemeal, case-by-case, purge the old law of its rightsthreatening elements. In both instances the court has succeeded in doing so and thus cultivated its own legitimacy.”23 Shapiro could not know that less than a decade later his conclusion concerning Hungary would soon be disclaimed by this country’s regression to a new kind of authoritarian regime. The genuinely judicial function of constitutional courts in established constitutional democracies consists in the dispute resolution between constituent actors – predominantly between the legislature and the executive branch of government and between minority and majority within the legislative body. Note that, in some constitutions, disputes about fundamental rights of individuals are primarily processed before ordinary, administrative, or other special courts; they reach the constitutional court only if and when a person alleges that her constitutional right has been infringed by public authority, that is, by the final judgment of the respective high court.24 Hence the politically most important cases occur when a constitutional court is vested with politically delicate decisions such as disagreements or disputes between supreme state

22

23

24

R. Teitel, “Transitional Justice Genealogy,” Harvard Human Rights Journal 16 (2003), 69–94. M. Shapiro, “Judicial Review in Developed Democracies,” Democratization 10.4 (2003), 7–26 [14]. E.g., Germany Basic Law Art. 93 para. 1 (4a)/Law on the Constitutional Court section 90 ff.; Poland Arts. 79 para. 1, 188 no. 5.

     



organs or, in federal states, between the federal and the state level. There are other judgments that are not jurisprudential cognitions but in fact decisions and hence doomed to be politicized and highly contested. To give a few examples: Pursuant to the German Basic Law, the Federal Constitutional Court decides on the forfeiture of basic rights (Art. 18), the unconstitutionality of political parties (Art. 21), and the impeachment of the Federal President (Art. 61) and of federal judges (Art. 98), and it has jurisdiction over the scrutiny of federal elections (Art. 41). In several member states of the European Union, for example in Germany, a new and arguably most political issue has become the object of the constitutional courts’ judicial review, namely the question of whether the legislator has ceded too extensive parts of the nation’s sovereign power to the European Union. The German Constitutional Court defined its task as that of a guardian of the “constitutional identity” of the country.25 Here, again, the role of constitutional courts in post-authoritarian countries in transition is different. While in established constitutional democracies there is normally no dispute as to the impartiality and neutrality of the constitutional court, in post-authoritarian countries in transition the court’s impartiality is either openly challenged or subject to a widespread diffuse distrust. Whatever the judgment, the justices must expect to be suspected by the losing party to have delivered a political judgment – not an objective cognition but a contestable political decision. In other words, in the cases that are submitted to the constitutional court – frequently in highly political issues – the court does not only have to find a jurisprudentially appropriate solution of the dispute between the litigant parties, but to struggle for the precondition of its task, namely its recognition as a neutral and fair arbiter. If the court succeeds in this, it will gain its judicial authority not derived from the constitution, but from its own merits to the effect that it might even appear to stand above the constitution. In any event, its authority has to be self-created, as it were. We may call this the need for increased reflexivity of the constitutional courts in periods of transition. If they do not succeed, they may become the political football of competing political forces. Its rootedness in the constitution will not help much. The quasi-constitutive role of a constitutional court in a postauthoritarian polity consists in its function to complement some of the 25

Federal Constitutional Court, 2 BvE 2/08 as of June 30, 2009, margin numbers 208 ff., www.bverfg.de/entscheidungen/es20090630_2bve000208en.html.

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 

functions of the constituent power, that is, to play a prominent part in the foundation of the new polity. In view of the general character of a constitution, the vague wording of many of its clauses, its deliberate openness to an unknown future, and its normative and institutional needs, the primary task of a constitutional court is to fill the constitution’s gaps by way of interpretation. In an established constitutional democracy the judicial innovations are normally declared as having been derived from the text of the constitution, its inherent systemic logic, its meaning and teleology, or the intentions of the founders. With the exception of the latter argument – the framers’ intentions – these sources of the constitutional court’s judgments in a post-authoritarian transition polity may not suffice to explain their importance for the establishment of a new and democratic regime. These sources of the judges’ findings refer to an internal logic of the concept of the constitution and its common knowledge within the general public. As a matter of fact, this is a completely new normative and institutional universe that is likely to be typically alien to most of the citizens. Thus, it is not enough to refer to a constitutional article that guarantees the protection of human dignity if the court has to judge whether the government has to provide a minimum standard of food and shelter for a refugee if the very meaning of human dignity in a liberal-democratic society is considerably different from that in an authoritarian order. The court has to establish the normative value of dignity in the new context and willy-nilly create the framework for a new political identity based upon certain values that it expounds in its judgments. As Boulanger states: “In this manner it refutes values which originate in the pre-democratic phase. Thus, the constitutional law, filled with values by the constitutional court, becomes a distinct structural element of the transformation process.”26 Essentially, this founding or constitutive role is not different from the one that constitutional courts perform in the framework of “normal constitutionality” with the help of their established hermeneutic tools. Yet in post-authoritarian polities of transition, the constitutional court cannot rely on an extrajudicial sociocultural texture that provides the conditions of a spontaneous understanding of the horizon of meaning of constitutionalism. This – non-exhaustive – list of peculiarities of “transitional constitutionality” does, of course, not imply the suggestion of its deficient nature.

26

Boulanger, “Hüten, richten, gründen,” p. 71 (author’s translation from German).

     



Rather, it points to the particular difficulties that the post-communist countries faced during the transition period. They should raise the awareness of the open outcome of the experiment of implanting entrenched constitutional elements into a sociocultural area without any or at best marginal tradition of constitutional governance.27 But the exclusive view on “transitional constitutionality” may be too narrow anyway. The rise of popular movements worldwide that denounce liberal democracy as an institutionalized conspiracy of elites against the popular masses indicates that we are dealing with a more general problem than the constraints imposed on constitutional courts in the transformation countries of Central and East Europe. We may be compelled to dig deeper and face the challenges to the legitimacy of liberal democracy in total that have gained ground in post-authoritarian transformation states and in entrenched democracies alike. I insert a brief digression into the question in how far structural elements of constitutional democracy contribute to this worrying development.

Excursus on the Crisis of the Constitutional State Popular slogans like “We want our country back” or “Taking back control” attest to the actuality that many people do no longer believe that the institutions and procedures of the constitutional state are the best response to their aspiration and capacity to rule themselves. Why have large parts of the citizenries in an increasing number of liberal democracies lost their faith in the democratic character and the politically beneficial effects of the institutional devices of constitutional democracy? Given the complexities of causal explanations in the social world any answer to this pressing question will necessarily be speculative and incomplete at best. In a nutshell, I hypothesize that the erosion, especially of the European states’ armor of sovereignty, has deprived large parts of the peoples of their basic feeling of security and certainty, in one word: control. On the search for the originator to whom this loss can be attributed populist movements picked out their respective political elites. After all, the “political class” is the visible incarnation of the force that has the power to shape the living conditions of the people. According to this view, the constitutional system is biased toward reproducing the rule of self-serving elites. Salvation can only be expected from the rule of the 27

Cf. Preuss, “Perspectives on Post-Conflict Constitutionalism,” pp. 481–494.

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“people” or at least of those whom they trust owing to some basic likeness (or so the argument goes). I will try to give an analytical account of this populist narrative. The “constitutional state” is a blend of sovereign statehood and constitutionalism; it is the amalgam of these two elements that embodies its democratic idea and ideal. The first element – sovereign statehood – denotes that the people of a territorially demarcated state possess the supreme and exclusive authority to regulate their societal affairs, which means nobody is allowed to exercise control over the lives of the citizens of that state without the authorization of the people. The second element – constitutionalism – is even more important in that it creates the condition of the sovereignty of the people in the first place, namely the transformation of a diffuse and disorganized multitude into a people, that is, an entity capable of acting collectively. Without a constitution, the state’s sovereignty is exercised by the rule of an absolutist prince or oligarchy over a crowd of subjects. Paradoxically, the “people” in whose name a constitutional state’s power is exerted comes into existence through the “denaturalization” or abstraction of the crowd of the real individuals into an active organ of the state. The first and constitutive step consists in the exercise of the constituent power that amounts to an act of popular self-constitution whose mysteries I leave aside here.28 After this self-constitutive event, the multitude acts as “the people” in the form of the basic organ of the state: It acts collectively as a whole in general elections that provide the people’s consent to the actual policies of the rulers, and in the institutional forms of the legislative, the executive, and the judicial powers. Note that the three variants of a multitude are not exhausted with those that I mentioned so far – the disorganized pre-constitutional crowd, the association of passive subjects (Untertanenverband) under absolutist rule, and “the people” as the bearer of sovereign state power organized by a constitution. This is what I call the constitutional people. There exists a rival to the constitutional people that, particularly in crises of the constitutional state, claims the recognition as the “real” or 28

Cf. U. K. Preuss, “Constitutional Powermaking for the New Polity: Some Deliberations on the Relations between Constituent Power and the Constitution,” Cardozo Law Review 14.3–4 (1993), 639–660; H. Lindahl, “Constituent Power and Reflexive Identity: Towards an Ontology of Collective Selfhood,” in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007), pp. 9–24; M. Loughlin, “The Concept of Constituent Power,” European Journal of Political Theory 13.2 (2014), 218–237.

     



“genuine” people. This is the concept of a people that does not need an act of self-constitution because it allegedly exists prior to all kinds of constitutional arrangement. It is the notion of the people as an ethnos (as distinct from the people as a demos). The ethnos denotes a community whose members are united through pre-political attributes like a common origin and history, language, culture, religion, or even race.29 By contrast, the demos consists of the entirety of the citizens who form a community by the bonds of common laws. In constitution-based states the ethnos and the demos normally coexist peacefully: While the demos occupies the realm of politics due to its inherent connection with the state, the ethnos “rules” in the cultural sphere. In the demos-sphere, the validity of legal norms always has priority over widely shared feelings of solidarity based upon the community of ethnic likes. The invocation of the ethnic “people” as the genuine agent in the political realm is typical of populist movements and indicates a crisis of the constitutional state. Unlike the paradigmatic case of the Weimar Republic, which collapsed under the deep class cleavages and their aggravation by the Great Depression of the end of the 1920s, today’s crisis of the constitutional state results from widespread feelings of uncertainty and insecurity. As has been observed by many pollsters, considerable parts of the supporters and voters of populist parties do not belong to what has been called the “losers of globalization,” the proverbial “deplorables,” but have been recruited from the middle classes that after World War II had been the most reliable pillar of constitutional democracy. What worries them today is the “open state,” the sense that the essential precondition of the functioning of an “open society,” namely a closed state, is about to wane. While open-minded, cosmopolitan individuals in the higher echelons of the social order regard open borders as the widening of their sphere of experience, life chances, and self-affirmation, those in the lower ranks sense them as a threat that deprives them of the control over their living conditions. In countries of Central and East Europe in whose history statehood has been precarious due to the machinations of great powers, a concept of nationhood took shape that deviated from the West European path of a state-centered nation toward an ethnic model. Obviously Poland and Hungary are exemplary cases of European countries

29

M. Weber, Economy and Society: An Outline of Interpretive Sociology, G. Roth and C. Wittich (eds.) (Berkeley, CA: University of California Press, 1978), pp. 387–398; A. D. Smith, The Ethnic Origins of Nations (Oxford: Blackwell, 1986), pp. 21–31.

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whose national histories were shaped by this developmental path.30 Anthony D. Smith speaks of the difference between territorial and ethnic nations.31 When the territory of a nation is open and the openness generates insecurity and uncertainty, it comes as no surprise that many people seek refuge and protection against the harsh winds of globalization in what in the past two centuries has secured the political survival of their community, that is, the community of their likes, the ethnic nation. The examples of ethnic nations that lacked statehood in total are rare – in Europe the Polish nation had been entirely deprived of their statehood between 1795 and 1919. As already stated, normally territorial and ethnic nationhood coexist largely peacefully; the latter can even become a driving force for the extension of the existing state’s territory, as the histories of Hungary and Germany in the 1930s show. Among the manifold problems of an ethnic nation within a territorial state is the precariousness of constitutionalism. Constitutionalism is a concept and a mode of political organization that is inherently linked to statehood. Roughly speaking, a constitution is an institutional device that aims at organizing the societal cooperation among the members of a political community, that is, a community that “imposes obligations on the individual members which many of them fulfill only because they are aware of the probability of physical coercion backing up such obligations.”32 While other, nonpolitical communities – families, clans, brotherhoods, gangs – may also use coercive means for the enforcement of discipline, only states organize the resource of coercive force by way of a constitution as binding law – a major step of civilizing violence. Consequently, social cooperation is implemented by what Weber called legal authority.33 Here again the ethnic nations differ markedly from territorial nations. They, too, use coercion as a means for creating and maintaining social discipline. But it is not used, as in territorial nations, to enforce legal norms that apply to everybody irrespective of his or her gender, origin, 30

31 32 33

Smith, The Ethnic Origins of Nations, pp. 140–144; at the beginning of the twentieth century, Friedrich Meinecke famously coined the antithetical conceptual pair of “state nation” and “cultural nation” to explain the difference between the French and the German concepts of nationhood, cf. F. Meinecke, Cosmopolitanism and the National State (Princeton, NJ: Princeton University Press, 1970 [1908]). Smith, The Ethnic Origins of Nations, pp. 134–138. Weber, Economy and Society, p. 903. Ibid., pp. 217–226.

     

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race, language, homeland, faith, and religious or political opinions. Rather, it serves as the main instrument for the protection and continuance of the ethnic homogeneity of the nation. Their idea of national solidarity is based upon the common ethnicity of their members in contrast to the understanding of that idea in a territorial nation where the constitution defines the boundaries of the political community by universalist criteria. It may happen that an ethnic community that forms a minority within a territorial nation demands the status of sovereign statehood through secession – in fact it happens time and again, the most recent example being the Catalans’ claim to secede from Spain. This then destroys the territorial unity of the territorial state without necessarily threatening its constitution. But this is the case if a sociopolitical shift occurs within the territorial state so that the dormant ethnic dimension of its citizenry or of major parts of it comes to the fore. As one could read after the British referendum on the Brexit among the citizens of the United Kingdom, the Englishmen discovered their particular identity as distinct from that of the Scots, the Welsh, and the Irish. At the beginning of the 1930s, the Germans changed their self-perception as being a modern society mainly split along features of class and religion to the idea that they had one common ethnic identity, the roots of which stretch back through the centuries. This change of self-interpretation may happen if the territorial state fails to protect the basic needs of its populace whose sense of security and trust in the state’s capacity to exercise full control over its territory and its boundaries gradually erodes. In such a case, the political community’s guiding principle shifts from the goal of social justice for the citizenry of a territorial nation to the protection of the identity of an ethnic nation against the intrusion of foreign ideas and interests, let alone foreign people. Within this evolving new sociopolitical paradigm the constitution, devised for the peaceful cohabitation of a heterogeneous citizenry, evolves into an obstacle to the self-determination of the ethnic community. The key problem is that ethnic communities that develop into a nationalist state are liable to an almost irresistible and unavoidable tendency toward authoritarian modes of government. Homogeneous communities are ideally represented by one person who best incarnates the community of likes and who is a vigilant guardian of the homogeneity of the community. After all, it is permanently under stress in that it is threatened from the intrusion of heterogeneous ideas and people. It is not by accident that strongly nationalist states are almost always

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authoritarian, not infrequently outright dictatorial. It is no less accidental that individuals who aspire for unrestrained power frequently incite nationalist sentiments among the population to accomplish their goal.

Constitutional Courts as Targets of Vehement Rejection Perhaps we can now better understand why especially constitutional courts are exposed to the forfeiture of their institutional standing under the pressure of populist movements. I hypothesize that, in the continental European context, the institutions of the constitutional state had a different political and sociopsychological meaning under the – now largely elapsed – regime of closed statehood than they are going to assume under the new conditions of open statehood, namely globalization. In the former case, the trust in the functioning of the constitutional institutions was based upon the pre-constitutional existence of the state as the territorially bounded and protected harbor of safety, object of loyalty, and reference of identity. This was even true in cases of ethnically, religiously, or linguistically divided countries like Switzerland, Belgium, Spain, Germany, or Great Britain. In Germany, the attempt to replace the Germans’ traditional state-centrism with the concept of constitutional patriotism received a lukewarm reception at best. Everywhere the unquestioned stability of the state – which, to be sure, after World War II was tantamount to the stability of democracy – was the fundament of a safe performance of constitutionalism. Once this fundament is fading under the conditions of globalization, constitutionalism is in a state of limbo, as it were. The authority of constitutional courts to review the legislative power is a case in point. The customary criticism has been that a small number of unaccountable judges can curb a democratically elected parliament.34 It raised the issue of the tension between the legislative and the judicial branch within the undisputed system of the separation of powers – within this constitutional pattern judicial review dealt with the “judicial redrawing of legislative boundaries between state organs.”35 Their relationship was marked by their connectedness as equally constitutive elements of the state’s

34

35

Cf. Stone Sweet, “Constitutional Courts,” pp. 817 ff.; as to the US discussion; cf. J. H. Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, MA, and London: Harvard University Press, 1980). Hirschl, “The New Constitution,” p. 722.

     

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institutional unity. This constellation defined the limits of judicial review of courts that, therefore, were keen to assert that they respected the political discretion of the other state organs that had a more direct democratic legitimation. They could do so more or less credibly by insisting that their judgments were generated by a strictly juridical, that is apolitical, methodology. In a significant number of liberal constitutional democracies this traditional constellation no longer exists. What eminent constitutional scholars call “juristocracy” or “judicialization” consists in what Hirschl identifies as the “wholesale transfer to the courts of some of the most pertinent and polemical political controversies a democratic polity can contemplate.”36 Regarding the jurisprudence of constitutional courts in Western Europe, Stone Sweet similarly states that “legislative politics have become highly ‘judicialized’, as the web of constitutional constraints facing legislators has grown and become denser.”37 In fact, the cases of the abolition of the death penalty by the (meanwhile profoundly reformed) Hungarian Constitutional Court38 or the judgments of the German Federal Constitutional Court concerning its review of the European policies of the Bundestag39 are evident examples of a significant change in the traditional constitutional architecture of the distribution of powers. In the history of democracy, failures of the normal pattern of constitutional collapses consisted in the more or less violent transfer of political power from parliamentary bodies to the executive, be it to an already existing, popularly elected president; a military junta that seized power in a coup; or a political party that came to power by revolutionary action and henceforth established an unrestrained bureaucratic state apparatus as the main instrument of its rule. As the term juristocracy suggests, today political power within the states is shifting to apex courts. For a conventional understanding of politics, this is puzzling. Remember only Max Weber’s well-known definition of political associations as being defined by a specific means, “namely physical violence” (physische

36 37 38

39

Ibid. Stone Sweet, “Constitutional Courts,” p. 827. Decision 23/1990: 31 October 1990, English Translation in L. Sólyom and G. Brunner (eds.), Constitutional Judiciary in a New Democracy: The Hungarian Constitutional Court (Ann Arbor: University of Michigan Press, 2000), pp. 118 ff. Federal Constitutional Court, 2 BvE 2/08 as of June 30, 2009.

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Gewaltsamkeit).40 How should courts play a major role in an arena of social action, in which, as Carl Schmitt unremittingly asserted, not judgment and deliberation, but decisionism is the required social virtue? Montesquieu’s famous assertion that among the three powers of the state, the power “of judging is in some fashion, null”41 fits well into this agonistic understanding of politics. In fact, the role of constitutional courts in Western constitutional states is paradox. They embody two antithetic constitutional elements. The first is the element of anti-politics that values the virtues of deliberation, neutrality, expertise, dispassionate judgment, and nonpartisanship in the political process.42 The status of central banks in several constitutional states, independent agencies, and other varieties of “administrative bureaucracy”43 attest to the fact that the constitutional state has established new areas of nonpolitical public authority beyond the traditional realm of the judiciary. The intention is to isolate certain functions that are important for the overall well-being of the society and hence liable to political controversy from political struggle and partisanship. Consequently, their political accountability is weak, in some cases nonexistent (e.g., the German Federal Bank). Obviously, this latter characteristic applies to courts including constitutional courts. The second constitutive element of constitutional courts leads in the opposite direction, into the sphere of politics. Being entrusted with the task to review acts of the supreme state organs necessarily involves political effects of their judgments.44 But there is a deeper relationship to the realm of politics. It becomes apparent through the comparison with ordinary courts. Ordinary courts are “independent and subject only to the law.”45 That is, they are independent of the executive branch and from other nonjudicial interference, but they are dependent upon the directives of the legislator issued in the form of law. In terms of a

40

41

42 43

44 45

M. Weber, “The Profession and Vocation of Politics,” in P. Lassman and R. Speirs (eds.), Political Writings (Cambridge: Cambridge University Press, 1994 [1919]), pp. 309 –369 [310]. Montesquieu, The Spirit of the Laws, M. Cohler, B. C. Miller, and H. S. Stone (eds.) (Cambridge: Cambridge University Press, 1989), bk. 11, ch. 6, p. 160. Cf. N. Urbinati “Unpolitical Democracy,” Political Theory 38.1 (2010), 65–92. J. McLean and M. Tushnet, “Administrative Bureaucracy,” in M. Tushnet, T. Fleiner, and C. Saunders (eds.), Routledge Handbook of Constitutional Law (New York: Routledge, 2013), pp. 121–130. Cf. D. Grimm, “Law and Politics in Processes of Transformation,” in this volume. Cf., e.g., Art. 97 para. 1 German Basic Law.

     



principal agent setting this means that the popularly elected legislator is the principal of the ordinary judges who act as its agent. Hence they rightly claim to adjudicate in the name of the people. If the principal is dissatisfied with the rulings of the court he can change the law. By contrast, if any of the constituted powers or relevant fractions of civil society are dissatisfied with a constitutional court’s decision there is no principal who could correct it and determine its future judgments by way of amending the constitution. This is so because the amending power is the power of constituted authorities46 and therefore subject to the review of the constitutional court. The constitutional court has the final word with respect to the interpretation of the constitution. This is succinctly condensed in the famous sentence of the former justice of the US Supreme Court Charles Evans Hughes: “We are under a Constitution, but the Constitution is what the judges say it is.”47 In other words, the constitutional court acts as the trustee of the constituent power. As Stone Sweet aptly puts it, a constitutional court “typically exercises its powers in the name of a fictitious entity: the sovereign People.”48 I leave aside the debatable claim that the sovereign people is a “fictitious entity.” In any case, it is true that constitutional courts that decide in highly political matters and controversies “that define (and often divide) whole polities”49 act as agents of the constituent power of the people. With a slight undertone of self-criticism, Sólyom recalls with respect to constitutional courts during the transformation period that they in this “historical setting . . . believed they represented the essence of the democratic change, and enjoyed ‘revolutionary legitimacy’. Little wonder if some constitutional courts have been inclined to replace the motto ‘we the people’ with ‘we the court.’”50 If this is so, then we are confronted with the paradox that the most depoliticized constitutional agent is at the same time the most political one in that he acts as the guardian of the political aspirations of the people. To paraphrase Hughes’s aphorism: “We live under the rule of the 46

47

48 49 50

Y. Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford: Oxford University Press, 2017), pp. 113–134. Christian E. Hughes, “Speech before the Elmira Chamber of Commerce,” May 3, 1907 in Addresses of Charles Evans Hughes, 1906–1916, 2nd ed. rev., with new material, including the address of acceptance, July 31, 1916 (New York and London: GP Putnam’s Sons, 1916), pp. 179–192 [185]. Stone Sweet, “Constitutional Courts,” p. 822. Hirschl, “The New Constitution,” p. 727. Sólyom, “The Role of Constitutional Courts,” p. 135.

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people, but the people wills what the constitutional court says it wills.” This is how constitutional states function, and it is without any cynical undercurrent that one can add: quite orderly. After all, to repeat the preceding argument, the people and its capacity to rule itself exists only owing to its organization through a constitution. However, there is a big if: constitutional states function quite orderly only if the people (plural) who form the “we the people” (collective singular) using the constitution share the feeling that it is through this constitutional transformation that they can live a meaningful life within a setting that does not escape their control. Deprived of this feeling by the invasion of the effects of globalization into their lifeworlds, considerable parts of the people attribute this predicament to the political elites of the constitutional state. More radical currents attribute the cause of their frustration to the constitutional embeddedness of the society and challenge the constitution altogether. In search of salvation, people tend to look for an almighty force that is able to “clean up the mess” of a society whose government appears unable to protect them against the rough winds of change. In secularized societies it is no longer God but “the people” who occupy this place – after all, isn’t there the promise of its sovereign power? Those political entrepreneurs who are politically skillful enough to invoke “the people” as the mystical being who is able to do the right things is likely to succeed in establishing a movement that embodies the unremitting belief of its zealots that its leader will authentically perform the will of “the people.” This is the essence of populism. All that has to be done to regain the full power of “the people” is to eliminate the main obstacle – the constitutional ordering of the state’s monopoly of coercive force. Among the institutions hateful for populists, there is one that they hate above all: a constitutional court. After all, it is this body that they rightly sense as the most serious competitor in their struggle for recognition as the true representative of “the people.” Their fervor in this struggle may be explainable by their more or less conscious perception that the mere pooling of rage and resentment may be enough to elicit an emotional swarm, but not a people and its constituent power. To create a people and to empower it, not the unmaking but the making of a constitution is needed.

17 Neither Legal nor Illegal Today’s Operational Spaces Barely Captured in Law

 

Introduction The organizing thesis posits the emergence of specific operational spaces that recur in country after country but are not necessarily framed by national or international law or by visible legal markers, even as they use particular national institutions such as laws and courts.1 These operational spaces contribute to the making of cross-border geographies that include only parts of national territories, often accounting for a minor portion of the pertinent “sovereign territory” that houses them. But these spaces have constructed borderings that partly encase them, and thereby partly isolate and “protect” them from a country’s laws and regulations. They can also benefit from highly specialized regimes now present in countries with major global financial centers. Such operational spaces are assumed to function under the law of those countries given their thick territorial insertions: whether it is financial centers with their massive concentrations of buildings, or human rights activists tracking tortured bodies in specific prisons and abandoned fields. But my research finds that these diverse operational spaces are in fact tightly bordered territorial fragments that keep out most of the “home” country’s people, operations, and more. In short, they keep out what they do not need. Further, they are more connected to 1

This text is based on the Storrs Lectures, forthcoming publication 2019 with Harvard University Press. The full elaboration of some of the issues raised can be found in S. Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, NJ: Princeton University Press, 2008), chs. 5 and 6; “When Territory Deborders Territoriality,” Territory, Politics, Governance 1 (2013), 21–45; Expulsions: Brutality and Complexity in the Global Economy (Cambridge, MA: Harvard University Press/Belknap Press, 2014); “Predatory Formations Dressed in Wall Street Suits and Algorithmic Math,” Science, Technology & Society 22 (2017), 6–20.

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other such spaces in a growing number of countries than they are connected to the particular host country they find themselves in. This specificity holds even for actors operating in similar sectors. The two financial cases examined here – high finance and the so-called vulture funds –has its own operational field in a range of countries. Even though both deal with finance, these are two very different fields. The narrow focus of each of these sectors on only what matters also holds for the operational spaces of other types of actors, including actors as diverse as human rights activists and traffickers of people, to mention extremes. The actors in these new types of bordered spaces that install themselves in sovereign territories and cut across international borders range from small resource-poor organizations to powerful corporations. The result is a proliferation of highly partial and specific cross-border geographies constituted using specific components of each country and engaging only those specifics. These geographies weave themselves across old divisions – north, south, and east–west – and engage only that which they need for their operations. This is not the old mode of the grand families of an earlier era who contributed to the civic life of a city because the city was a key space for their being recognized as grand families. In the current period, being recognized as grand and as a benefactor does not quite play out in the ways it did in the 1900s.

Today’s Borders: Many More Than the Law Can Recognize There have been many epochs when territories were subject to multiple systems of rule. In this regard the last 20 years of globalization are probably by far the more common. And the more exceptional period is that which saw the strengthening of the national state. The gradual institutional tightening of the national state’s exclusive authority over its territory takes off particularly after World War I. It also fed the elaboration of the categories for analysis, research techniques, and data sets in the social sciences: They mostly came out of this period of the formalizing of sovereign states. But of course this was at least partly enabled by the rise of a few hegemonic “national” states with imperial impulses, to put it kindly. In the shadow of those hegemons existed multiple national states, whose sovereignty was more formal than operational. Today we see the opening of borders for a range of flows. But in my view the critical question for us today is “Who has the power to make borders?” I see diverse new bordered geographies installing themselves in

   

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sovereign territories and in global digital space. Thus we face the difficult and collective task of developing the theoretical and empirical specifications that allow us to accommodate the fact of multiple relations between territory and institutional encasement, rather than the singular one of national state and sovereign rule. Europe’s return to a debate and, partly, reality of instituting borders, notably in the form of actual walls at a time when millions cross those walls digitally, is a peculiar act of speech. But speech it is. And what it says is to be noted: It is not about, for instance, the financial sector that has its own highway into all our countries where it can proceed to extract value from even the smallest economic sector or household. Nor is it about traffickers in the sex industry. No, it is about people and their fragile bodies: Those people who can be stopped by these types of walls. Countries can evidently build a barrier against humans (at least for a while) but not against more powerful actors that do not need to confine their operations to ground level. The national state’s capture of the meaning of “strong borders” has had the effect of simplifying the question of the border: The border is to a large extent reduced to a geographic event and to the immediate institutional apparatus through which it is controlled, protected, and generally governed. What globalization brings to this condition is the actual and heuristic disaggregating of “the border.” The border is typically represented as a unitary condition in policy discourse. But globalization has helped make legible its multiple components. The multiple regimes that constitute the border as an institution in the current period can be grouped into two major formats. On the one hand, there is the formalized border apparatus that is part of the interstate system. And, on the other, there is an as yet far less formalized array of novel types of borderings that function largely outside the framing of the interstate system but are partly embedded in multiple, often very diverse, national territories and, to some extent, in corresponding legal systems. The first, the formalized apparatus of the interstate system has at its core the body of regulations covering a variety of international flows – commodities, capital, people, services, and information. No matter their variety, these multiple regimes tend to cohere around (1) the state’s unilateral authority to define and enforce regulations and (2) the state’s obligation to respect and uphold the regulations coming out of the international treaty system and bilateral or multilateral agreements. The second major component, the new type of bordering dynamics arising outside the framing of the interstate system, does not necessarily

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entail a self-evident crossing of borders; it includes a range of dynamics arising out of specific contemporary developments, notably emergent global law systems and a growing range of globally networked digital interactive domains. These bordering dynamics are partly formalized, partly emergent, and partly not necessarily meant to be formalized or to be particularly visible. Global “law” systems are not centered in state law – that is to say, they are to be distinguished from both national and international law. And the global digital interactive domains are mostly informal, hence outside the existing treaty system; they are often basically ensconced in subnational localities that are part of cross-border networks. The formation of these distinct systems of global law or globally networked interactive domains entails a multiplication of bordered spaces. But the national notion of borders as delimiting two sovereign territorial states is not quite in play. The bordering operates at either a transnational, supranational, or subnational scale. And although these spaces may cross national borders, they are not necessarily part of the new open-border regimes that are state centered, such as those, for instance, of the global trading system or legal immigration. Insofar as these are global bordered domains they entail a novel instance of the notion of borders. In what follows, I examine briefly some of the key analytic distinctions we might use to disaggregate state-centered border regimes and to locate a given site in a global web of bordered spaces.

Locating the Border Today we see multiple regimes with variable content and locations. For instance, cross-border flows of capital will require a sequence of interventions that (1) differs in character from that for goods and (2) has very different institutional and geographic locations. The actual geographic border crossing is part of the cross-border flow of goods, but not necessarily of capital, except if actual cash is being transported. Each border-control intervention can be conceived of as one point in a chain of locations. In the case of traded goods, these might involve a pre-border inspection or certification site. In the case of capital flows, the chain of locations will involve banks, stock markets, and electronic networks. The geographic borderline is but one point in the chain; institutional points of border control intervention can form long chains inside the country. One image we might use to capture this notion of multiple locations is that the sites for the enforcement of border regimes range from banks to

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bodies. When a bank executes the most elementary money transfer to another country, the bank is one of the sites for border-regime enforcement. A certified good represents a case in which the object crossing the border is one of the sites for enforcement: The emblematic case is a certified agricultural product. But it also encompasses the case of the tourist carrying a tourist visa and the immigrant carrying the requisite certification. Indeed, in the case of immigration, it is the body of the immigrant that is both the carrier of much of the regime and the crucial site for enforcement; and in the case of an unauthorized immigrant, it is, again, the body of the immigrant that is the carrier of the violation of the law and of the corresponding punishment (e.g., detention or expulsion). A direct effect of globalization, especially corporate economic globalization, has been to create increasing divergence among different border regimes. Thus, the lifting of border controls on a growing variety of capital, services, and information flows has taken place even as other border regimes maintain closure and impediments to cross-border flows are made stronger, for example, the migration of low-wage workers. We are also seeing the construction of specific “borderings” to contain and govern emerging, often strategic or specialized, flows that cut across traditional national borders. Earlier treaties, such as the North Atlantic Free Trade Agreement and the General Agreement on Trade in Services, and later the World Trade Organization, contain specific arrangements for the cross-border circulation of high-level professionals; they also enable the recruitment of foreign workers at low levels. Where in the past these professionals may have been part of a country’s general immigration regime, now we have an increasing divergence between the latter and the specialized regime governing professionals.2 If we were to consider what might be involved in locating an economic site in a global web of “borders,” a first step in my research practice is to conceive of the global economy as constituted through (1) a set of specialized/partial circuits and (2) multiple, often overlapping space economies. The question then becomes how a given area is articulated with various circuits and space economies. The articulating of a site with global circuits can be direct or indirect, and part of long or short chains. An instance of a direct articulation would be a site located on a specialized global circuit, as might be the case with export forestry, a mine, offshore manufacturing, or offshore 2

I have examined the implications of this divergence inside the world of migrations in Sassen, Expulsions.

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banking. An instance of an indirect articulation might be a site located on national economic circuits, for example, a site for the production of processed consumer goods whose market are major distributors and export happens through multiple complex national and foreign urban markets. The chains of transactions involved in these different types of products are likely to be shorter in the case of extractive industries than in manufacturing, especially in consumer goods where export/import handlers and multiple distributors are likely to be part of the chain. As for the second element, the space economies involved, a first critical issue is that a given site can be constituted through one or more space economies. A forestry site or an agricultural site is likely to be constituted through fewer space economies than a financial center or a manufacturing complex. Second, none, only one, or several might be global space economies. It seems to me crucial to disaggregate a site along these lines, and not reify an area. For instance, the space economy even of a sparsely populated area, such as a forestry site, can be far more complex than common sense might suggest: Even if it is located on only one global circuit, for example, an international logging company that has contracted for all the wood produced in the site. That logging multinational’s acquisition of the wood requires it also to satisfy a great mix of requirements typically executed using specialized corporate services, notably accounting and law, and it is likely to require financing, in turn subject to national regulations. We might then say that the forestry site is constituted through several space economies, and at least two: logging and specialized corporate services. But it is likely to be part of a third space economy, that of global financial markets; for instance, if the logging company is part of a stock exchange listing, it may well have “liquefied” the logs by converting them into derivatives that can then circulate as financial instruments in the global capital market.3 This insertion in global financial markets is to be distinguished from the financing of, in this case, the actual work of logging; it has, rather, to do with the capabilities of global finance today to liquefy even the most immobile material good, for example real estate, 3

Finally, and I cannot resist, we might want to say that a spent, a used-up, sparsely populated area – for instance a completely logged forest, where the forest ceases to exist – represents an instance of “dead land” on what may well continue to be very dynamic global circuits, e.g., the logging multinational now operating in other sites, in other or the same country. The point here is that one of the key articulations of that site remains that global logging circuit, and to keep a dead site on the circuits that caused its death is part of a critical social science. Why render it invisible?

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so it may circulate as a profit-making financial instrument in the global capital market, in addition to the profit-making potential of the material good. There is a kind of analytics that emerges out of the particularity of this discussion of state-centered border regimes and the empirical work of locating a site that is part of a global web of such state-centered border regimes. These are analytics that aim at disaggregating the border function into the character, locations, and sites for enforcement of a given border regime. The effect is to make legible the multiple territorial, spatial, and institutional dimensions of “the border.” In what follows, the effort is to explore novel types of bordering dynamics as these intersect with the sovereign state and the destabilizing of the meaning of its conventional borders under the impact of multiple forms of globalization.

Thick Territorial Inserts There have been many epochs when territories were subject to multiple systems of rule. The gradual institutional tightening of the national state’s exclusive authority over its territory takes off particularly after World War I – even though the national project goes back centuries. In this regard, the current condition we see developing with globalization is probably by far the more common one, and the more exceptional period is the one that saw the strengthening of the national state’s authority over its territory. The spaces that concern me here are above all marked by thick territorial moments. They include networked digital structures and interactive domains, but even some of the most digitized sectors in today’s global economy, such as finance, could not survive without some very material infrastructures and, often, massive concentrations of buildings. Thus these are situated territorial spaces. They are not generic spaces where any location is fine. Further, they are weakly connected to the larger cities within which they exist. Though in a different mode, they are also weakly connected to the nonurban operations of dominant extractive logics (mining, water, land grabs, etc.) that are often the grist for a whole range of financial instruments.4 Finally, they are connected across regions and even the world, partly through digital capacities and partly 4

For some cases see Sassen, “Predatory Formations.”

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through very material instrumentalities. Such instrumentalities range from commodity chains to land grabs for mining and water extraction. All together these operational spaces are foundational elements of the current period, enabling a broad range of processes and conditions. These operational spaces contribute to the making of geographies that (1) include only parts of national territories and (2) cross multiple interstate borders with great ease – whether through conventional transport or digital flows. The actors involved (people, firms, and networks) navigate this cross-border geography with only minor, if any, obstacles. They do this openly, with large sections of their operational chains functioning within existing law, but also partly beyond – though rarely in direct confrontation with – existing law. Such actors construct novel types of operational spaces that deborder existing law or for which there might be little if any law. Thus, while not in violation of existing law they are constituting operational fields that may not be fully addressed by existing law, whether public or private. These globally recurrent operational spaces can be conceived of as new cross-border geographies of centrality. The outcome is a de facto transnational geography that connects strategic spaces across the world even as it constructs its own distinct borderings within countries. These borderings keep what is unwanted out of those strategic spaces. The “unwanted and/or not needed” can include laws, traditional contractual expectations, large sectors of the economy and the polity, the political classes of a given country, and much more. The most extreme of these geographies of centrality have hermetic, even if often invisible, borderings. No coyote can take you over those borders. One major such extreme case are the so-called dark pools in finance. These are private financial trading networks owned by some of the major banks in the world. According to the US central bank (the Federal Reserve), they account for a significant proportion of financial trading. Less extreme are geographies linked to international mining and water extraction that rest on the buying of much land not only by foreign investors, but also by foreign governments, and the making of specific infrastructures and superstructures. There are other such cross-border geographies that are centered on illegal extraction and trading, but I will not focus on these here because formally recognized illegality introduces a whole series of other issues I address elsewhere.5

5

Sassen, Expulsions, chs. 1, 2, and 4; “When Territory Deborders Territoriality.”

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These formations tend to unsettle what are often fairly deeply entrenched notions of interstate borders, sovereign national territory, and sovereign authority. Further, they are quite different from the old European imperial geographies. The old empires wanted it all and came with larger cultural impositions that went beyond economics – for instance, the “mission civilizatrice” of the French whereby all schools had to teach French, or the British training the colonized subaltern to serve the empire the English way. The new geographies I am focused on have little, if any, of that, which makes them neither better nor worse than the former. They are best seen as largely extractive and infrastructural – they want to have what they need to extract whatever value they are after: mining, timber, land, financial resources, and consumption capacities. And when they are done extracting, they move out. They leave behind not a dying cultural formation but simply dead land. Next I analyze two of these geographies of centrality. They are diverse and thereby illuminate somewhat of a spectrum. Elsewhere I have examined more of these, including the making of geographies of powerlessness and geographies of contestation.6 The first case concerns specific features of high finance and the second specific actors (often referred to as “Vulture Funds”) that erode the special status of sovereign debtors.

Finance: An Assemblage of Capabilities The many negotiations between national states and global economic actors that led to our current global financial system have generated a de facto normativity.7 In my reading, this normative transformation entails a privatizing of capacities for making norms, capacities we have associated with the state in our recent history.8 This brings with it strengthened possibilities of norm making in the interests of the few 6

7

8

S. Sassen, “Strategic Gendering as Capability: One Lens into the Complexity of Powerlessness,” Columbia Journal of Gender and Law 19 (2010), 179–200. Among familiar components are privileging low inflation over employment growth, exchange rate parity, and the variety of items found in IMF conditionality and Basel rules. There are specific ties for diverse periods. Thus, after the Southeast Asian financial crisis, we saw revisions of some of the specifics of these standards: e.g., exchange rate parity was to be evaluated in less strict terms. Whom these changes benefit has not changed much. I develop this at length in Sassen, Territory, Authority, Rights, ch. 4; “When Territory Deborders Territoriality”; Expulsions, ch. 1. Sassen, Territory, Authority, Rights.

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rather than the majority. In itself, this is not new. New is the formalization of these privatized norm-making capacities and the more limited and closed worlds of the beneficiaries – whether in the shape of powerful global firms, deregulated markets, or offshore wealth holdings, and such. This privatizing also brings with it a weakening and even overriding of public accountability. In practice, this might not appear to be much of a change given multiple corruptions of the political process. But the formalizing of this weakened public accountability is consequential. This was the setting for the ascendance of the post-1980s global financial system. The global capital market represents a concentration of power capable of systemically (not just through influence) shaping elements of national government economic policy and, by extension, other policies. The powerful have long been able to influence government policy,9 but today it is also the operational logic of the global financial system that becomes a norm for “proper” economic policy.10 These markets can now exercise the accountability functions formally associated with citizenship in liberal democracies: They can vote governments’ economic policies out or in, force governments to take certain measures and not others, and more. Given the properties of the systems through which these markets operate – speed, simultaneity, and interconnectivity – the resulting orders of magnitude give them real weight in the economies of countries and their policy making.

The Specifics of Today’s Capital Market There has long been a market for capital and it has long consisted of multiple, variously specialized, financial markets.11 It has also long had global components.12 Indeed, a strong line of interpretation in the 9

10 11

12

G. Arrighi, The Long Twentieth Century: Money, Power, and the Origins of Our Times (London: Verso, 1994). Sassen, Territory, Authority, Rights; “When Territory Deborders Territoriality.” B. Eichengreen, Global Imbalances and the Lessons of Bretton Woods (Cambridge, MA: MIT Press); E. Helleiner, “State Power and the Regulation of Illicit Activity in Global Finance,” in H. R. Friman and P. Andreas (eds.), The Illicit Global Economy and State Power (Mitchellville, MD: Rowman & Littlefield), pp. 53–90; id., E. Helleiner, Forgotten Foundations of Bretton Woods: International Development and the Making of the Postwar Order (Ithaca, NY: Cornell University Press, 2014). Arrighi, The Long Twentieth Century; B. Eichengreen, “Restructuring Sovereign Debt,” Journal of Economic Perspectives 17 (2003), 75–98; UNCTAD, “World Investment Report 2015: Reforming International Investment Governance,” United Nations Conference on Trade and Development, http://unctad.org/en/PublicationsLibrary/wir2015_en.pdf.

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literature of the 1990s is that the post-1980s market for capital is nothing new and represents a return to an earlier global era – the turn of the century and, then again, the interwar period.13 However, all of this holds only at a high level of generality. When we factor in the specifics of today’s capital market some significant differences with those past phases emerge. I emphasize two major ones here. One concerns today’s far higher level of formalization and institutionalization of the global market for capital, partly an outcome of the interaction with national regulatory systems that themselves gradually became far more elaborate over the last hundred years.14 The second concerns the transformative impact of the new information and communication technologies, particularly computer-based technologies (henceforth referred to as digitization). In combination with the mix of dynamics and policies we usually refer to as globalization, they have constituted the capital market as a distinct institutional order, to be differentiated from other major markets and circulation systems such as global trade. These processes enable the formation of a strategic cross-border operational field constituted through the partial disembedding of specific state operations from the broader institutional frame of the state; it entailed a shift from national agendas to a series of new global agendas. The transactions are strategic, cut across borders, and produce specific interactions among government agencies and business sectors to address the new conditions produced and required by corporate economic globalization. They do not engage the state as such, as in international treaties or intergovernmental networks. Rather, these transactions consist of the operations and policies of specific subcomponents of diverse institutional orders. They prominently include the state (e.g., technical regulatory agencies, specialized sections of central banks and ministries of finance, and special commissions within the executive branch of government), supranational systems linked to the economy (the International Monetary Fund [IMF] and the World Trade Organization), and private nonstate sectors. In this process, these transactions push toward convergence across countries to create the requisite conditions for a workable global financial system. This global financial system does not only consist of its firms, 13 14

P. Hirst and G. Thompson, Globalization in Question (Cambridge: Polity Press, 1996). S. Sassen, The Global City, 2nd ed. (Princeton, NJ: Princeton University Press, 2001), chs. 2, 3, and 4; Expulsions, ch. 3; “Predatory Formations.”

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exchanges, and electronic networks but also it is embedded in a vast array of specific, often highly specialized, bits of state and supranational institutions.15 It all amounts to a vast cross-border multiplication of operational spaces, each combining only some, albeit very specific, elements of each country.

An Emergent Field for Transactions There are two distinct features about this field for transactions that lead me to posit that we can conceive of it as a space partly disembedded from the national economy and institutions, and in the process of becoming structured through novel types of vectors. The transactions take place in familiar larger and more encompassing settings: “the” state, “the” interstate system, and “the” private sector. However, and this is the first difference, the practices of the agents involved are de facto constructing a distinct assemblage of bits of territory, authority, and rights that recurs across countries and functions as a new type of operational field. In this regard, it is a field that exceeds the formal institutional world of “the interstate system” and of “the global economy.” Second, insofar as interactions between these specific state actors and specific private corporate actors in each country provide substantive public rationales for developing national and international policy, this is an operational field that denationalizes state agendas (for good or for bad). That is to say, the rationales for global action of those specific state and corporate actors run through national formal law and policy but are in fact rationales that denationalize state policy. This can bring with it a proliferation of rules that begin to assemble into partial, specialized systems of law only partly embedded in national systems, if at all. Here we enter a whole new domain of private authorities – fragmented, specialized, and increasingly formalized but not necessarily running through national law per se. One way of putting it, is that such private authorities deborder the domain of the national state. Two sets of interrelated empirical features of these markets signal their rapid transformation since the mid-1980s.16 One is accelerated growth, 15 16

Sassen, Territory, Authority, Rights, ch. 5; Expulsions, ch. 3. There are other factors that are significant, particularly institutional changes, such as the bundle of policies usually grouped under the term deregulation and, on a more theoretical level, the changing scales for capital accumulation. For a full analysis of these issues, see K. Knorr-Cetina and A. Preda (eds.), The Oxford Handbook of the Sociology of Finance

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partly due to electronic linking of markets – both nationally and globally – and the sharp rise in innovations enabled by financial economics (mostly algorithmic mathematics) and digitization. The second is the sharp growth of a particular type of financial instrument: the derivative – a growth evident both in the proliferation of different types of derivatives and in its becoming the leading instrument in financial markets.17 This diversification and dominance of derivatives has made finance more complex and enabled growth rates that diverge sharply from those of other globalized sectors.

Eroding the Status of Sovereign Debt: The Rise of Vulture Funds The 1980s was a period when speculation reigned supreme in many western financial centers, most especially Wall Street.18 At the time, the term junk bond was used by established Wall Street firms to describe a financial instrument that lacked a credit rating. Let me note that, in the 1980s, only a limited number of firms had such ratings, something that marked their elite status and separated them from what was becoming a proliferation of new types of financial firms. The current use of “vulture funds” was used in that period to describe funds specializing in buying heavily discounted sovereign debt to sue those governments, often many years later, for full payment of that bought debt plus interest and fees. Such newcomers to the old-style banking world introduced what were seen at the time as dubious practices, distasteful to established firms, from whence the term vulture funds.

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(Oxford: Oxford University Press, 2014); G. R. Krippner, Capitalizing on Crisis: The Political Origins of the Rise of Finance (Cambridge, MA: Harvard University Press, 2011) on deregulation and re-regulation in the financial markets today; on new scales for capital accumulation, see the special issue of Globalizations on “Globalization and Crisis,” especially B. K. Gills, “The Return of Crisis in the Era of Globalization: One Crisis, or Many?,” Globalizations 7 (2010), 3–8; and for a state of the art examination of how the making of specialized corporate services for global firms started three decades ago, see J. R. Bryson and P. W. Daniels (eds.), The Service Industries Handbook (Cheltenham, UK: Edward Elgar, 2009). Sassen, Expulsions, ch. 3; “Predatory Formations.” The term vulture is not new to the world of finance. It was used in the United States at least as early as the mid-1800s to describe financial firms that specialized in buying devalued assets with the aim of making a profit. It emerges again as a descriptive term used by popular news sources in the early 1900s.

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This was also the period when vast numbers of sovereign governments were at risk of default – more than 50 governments from the 1970s to the 1990s. There was, then, the potential for severe international instability. The international “community” responded to this sovereign debt crisis by adding flexibility and discounting the debt to help sovereigns pay it off.19 This community included the IMF, the Club of Paris, other such institutions, and several key governments.20 They developed diverse arrangements and options, including the so-called Brady Bond mechanism, all geared to preventing sovereign defaults.21 By 1996, the IMF and the World Bank had recognized that 46 governments would not be able to pay their debt under current conditions, and instituted the HIPC (Highly Indebted Poor Countries) program.22 The program amounted to a massive discount of these governments’ debt, but the debtholders were persuaded that accepting the discounted value was a reasonable option as the big international banks had their own reasons for wanting international stability. The vulture funds evidently saw it as a “business opportunity” in view of the growing numbers of sovereign debtors going into default.23 Key was also the fact that it amounted to a vast supply of heavily discounted debt. In the 1990s, these funds enter the picture as aggressive litigators launching lawsuits against indebted sovereign governments: This type of

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The United States and the United Kingdom, the countries with the two major financial centers at the time, passed, respectively, the US Foreign Sovereign Immunities Act of 1976 and the UK State Immunities Act of 1978. Both reduced the scope of sovereign immunity. Let me clarify that I have written an extensive critical analysis about these initiatives and the embedded understanding of what it meant to rescue a sovereign debtor see Sassen, The Global City; Territory, Authority, Rights. It should be noted that the large international banks that accepted the discounted debt were not completely innocent in the making of this potentially catastrophic debt scenario. There was a massive push to sell loans in the 1970s and early 1980s stemming from the abundance of so-called petro-dollars of the 1973 the Organization of Petroleum Exporting Countries windfall and their decision to put this money into the hands of large international banks. Thus, these banks had to find takers for their loans, as this was not yet the highly financialized system that it is today. See S. Sassen, “A Savage Sorting of Winners and Losers: Contemporary Versions of Primitive Accumulation,” Globalizations 7 (2010), 23–50; Expulsions, chs. 2 and 3. Note that the debt of these countries was partly the outcome of common practices of Global North actors – both particular governments and what were then called “transnational” banks, see Sassen, Expulsions, ch. 1. For a detailed account of the rise of vulture funds in the 1980s and a range of specific cases across the world, see Sassen, Territory, Authority, Rights, ch. 5 and its appendix.

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attack on sovereign governments was not meant to happen given the international system’s efforts to protect sovereign debtors. As already mentioned, in their current incarnation, these funds specialize in buying distressed sovereign debt held by major banks, at heavily discounted prices to sue for the full value of the debt plus interests and fees. And sue they have, with major success. They engaged sovereign debtors in ways that bypassed established mechanisms such as the Brady Bonds and the prescriptions of the international institutions handling sovereign debt. Importantly, their key battleground is local courts. In so doing, they bypass long-established formats, including customary law, for how to handle sovereign debt. One clear outcome of these past four decades is that sovereign debt has lost some of the key protections that marked this type of debt as different from business debt. The core notion is that sovereign debt is a people’s, a nation’s, debt. Over the last 20 years, a few of the most powerful of these vulture funds succeeded in having judges reduce the standing of sovereign debtors to that of a mere commercial entity that owed them money. What stands out, besides the aggressive suing, is the fact that judges mostly did not make room for the traditional defense of a sovereign debtor in such cases: champerty, an old English law that forbids the purchase of debt with the intent, and for the purpose, of bringing a lawsuit.24 This was a break with international custom. Whether discounting sovereign debt is right or not, it is clear that much effort was and continues to be put by the international system into preventing sovereign defaults. This was well illustrated by the 2001 Argentina default, when the IMF begged for Argentina to accept an IMF loan to keep it from defaulting on its debt. Argentina refused and went into what became the largest sovereign default since World War II.25

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For a discussion involving champerty as it relates to vulture fund litigation, see C. C. Wheeler and A. Attarand, “Declawing the Vulture Funds: Rehabilitation of a Comity Defense in Sovereign Debt Litigation,” Stanford Journal of International Law 39 (2003), 253–284. See also Anon., “What Constitutes Champerty?,” Harvard Law Review 11 (1897), 192–193. The Argentine default was US$98 million. The 1998 Russian default was US$72 billion. C. Takushi, Emerging Markets, 2013, https://hec.unil.ch/docs/files/159/1451/marches_ emergents_-_c._takush_-_8_nov_13i.pdf (accessed January 17, 2017), though some estimate it was closer to US$100 billion.

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Vulture Funds Bring Sovereigns to Their Knees The most innovative of these funds has been Elliott Associates L.P. This is an umbrella company for several different units involved in these lawsuits, including NML in the recent Argentina case. For simplicity’s sake, I will use “Elliott.” It has won 11 court cases in New York against foreign sovereign debtors. There were other legal victories in foreign countries, including the United Kingdom and Belgium.26 In 1996, Elliott launched its first in a series of lawsuits, starting with Panama.27 Elliott bought $28.7 million of Panamanian sovereign debt in 1995 for the discounted price of $17.5 million and in 1996 sued that government in a New York court for full payment of the original debt plus interests and fees. Elliott won the case and Panama’s government had to pay $57 million. The 2012 New York court decision on Argentina further reduced the standing of sovereign debtors through its extreme version of pari passu, whereby all creditors are to be treated equally.28 It meant that Argentina could not pay 93 percent of its creditors (who had accepted the discounted debt arrangement, as is customary) until Elliott and its coclaimants received their payment (for their portion of the full original debt plus interest and fees). A number of other lawsuits followed (see a few examples in the following text). The gains made by Elliott are, even by investment standards, extremely high. In many ways, the Panama victory opened the door for other funds. Among them were Dart Container Corp. and EM Ltd., both linked to Kenneth Dart, one of the most famous names in the world of vulture funds; MNL Ltd., a Cayman Islands–based fund associated with Elliott; Gramercy Advisors, a Greenwich, Connecticut–based firm, focused on Ecuadorian and Russian debt; Aurelius, also a major actor in the Argentina lawsuit; and FG Hemisphere. 26

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See, e.g., the UK court victory. J. Croft, “NML in UK Court Victory on Argentine Debt,” Financial Times, July 6, 2011, www.ft.com/intl/cms/s/0/fcb6b5fe-a7f4-11e0-afc200144feabdc0.html#axzz3DyJRlFAe (accessed January 17, 2017) and the Belgium pari passu victory. R. Zamour, “NML v. Argentina and the Ratable Payment Interpretation of the Pari Passu Clause,” Yale Journal of International Law 38 (2013), 55–66 [61]. There was also a victory in Ghana, but this ruling was overturned by the UN Tribunal on the Laws of the Sea. This was the first case of its kind for Elliot; the debt was purchased in 1995 and the suit was brought in 1996 (Elliott Associates v. Banco de la Nacion and the Republic of Peru, 194 F.3d 363, 2nd Cir. 1999). For a discussion of pari passu, see Zamour, “NML v. Argentina.”

   

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International Legal Avenues for Sovereign Default Sovereign debt is not ordinary debt; it is a people’s debt. Sovereign default can bring down a national economy, which can generate serious international economic repercussions.29 Some of these early victories in the courts became a kind of precedent in that they succeeded in basically eliminating the traditional defenses of sovereign debtors in court cases. Many defaulting governments must undergo the restructuring process more than once to address some further unforeseen or unaddressed factors.30 Argentina, Belize, Greece, Grenada, and Jamaica all experienced two or more restructurings of their debt due to the unsustainability of previous restructurings.31 Given the messiness and expense, such subsequent restructurings are particularly disruptive to developing economies. What is more, this fragile ad hoc system falls apart when the claims of holdout creditors’ (such as Elliott) are supported by domestic commercial courts as was the case in the United States. When vulture funds refuse to submit to any meaningful negotiations with sovereign debtors, they undermine the debtor’s efforts to restructure the debt. There are few international or multilateral legal avenues for sovereign bankruptcy. Further, new “international” initiatives often are attempts that simply build upon the existing system.32 The IMF 2001 comprehensive Sovereign Debt Restructuring Mechanism failed to gain enough support from IMF members. The United States led the effort33 against this IMF initiative, reluctant to surrender enough of its sovereignty for 29

30

31 32

33

In the case of sovereign contracts, the creditor “knew or should have known” about the special considerations inherent in lending to sovereigns (using the reasoning of the Tinoco arbitration between GB and Costa Rica); see O. Lienau, Rethinking Sovereign Debt (Cambridge: Cambridge University Press 2013), p. 134. IMF, “Sovereign Debt Restructuring: Recent Developments and Implications for the Fund’s Legal and Policy Framework,” Washington, DC, 2013, www.imf.org/external/ np/pp/eng/2013/042613.pdf, 24 (accessed January 17, 2017); IMF, “The Fund’s Lending Framework and Sovereign Debt: Further Considerations,” Washington, DC, 2015, www .imf.org/external/np/pp/eng/2015/040915.pdf (accessed January 17, 2017). IMF 2013, p. 24. For a critique of the legal and political worldview that tends to sacralize versions of our institutions that ceased to be workable or desirable (such as a conception of sovereignty that fails to account for the many ways it must adapt to accommodate new forms of human social, political, cultural, and economic connection), see P. Barrozo, “The Great Alliance: History, Reason, and Will in Modern Law,” Law & Contemporary Problems 78 (2015). R. Wigglesworth, “Think-Tank Raises Heat in IMF Sovereign Debt Debate,” Financial Times, January 16, 2014, www.ft.com/intl/cms/s/0/19a993fc-7ec1-11e3-864200144feabdc0.html#axzz3Di7pL2Ux (accessed January 16, 2017).



 

the plan to work.34 The IMF then opted for Collective Action Clauses (CACs), contractual provisions intended to induce creditors to submit to majority rule in the case of default. Sovereign debt contracts are now being written to anticipate holdout creditors (vulture funds) by including CACs and other provisions. This does nothing to help those countries currently undergoing proceedings, nor does it do much to legitimate the ad hoc system as it is. The result is a weakening of the position of sovereign debtors and a strengthening of holdout creditors. It is, then, unlikely that this type of safeguard (CACs) alone will provide the kind of stability in sovereign debt that is needed. Holdout creditors can keep on blocking a sovereign debtor who is ready to pay creditors a discounted debt.35 The same 2013 IMF report claims that this piecemeal plan is “too little, too late,” and that the problems fundamental to collective action are too large to overcome without a comprehensive framework.36 Among the newer developments in international response to sovereign debt, the IMF developed the Sovereign Debt Adjustment Facility. This is a so-called comprehensive framework designed to stand alongside CACs and supposed to both prevent the fund from entering into countries where debt is indeed unsustainable and to protect countries undergoing restructurings from holdout creditors. In short, these new types of financial actors have constructed an operational space that is all their own. It is a space that can enter foreign countries with great ease and then sue their governments in a regular US court. This is an astounding downgrading of the status of the sovereign debtor (for good or bad) and a refusal to accept older traditions that recognized the special status of a government’s debt because it is a people’s debt.

Conclusion The space of traditional governance is shrinking, even though it remains the most strategically important and powerful. What is expanding is a vast new zone of ambiguous rules and “ruling orders.” The rules range 34 35 36

IMF 2013, p. 13. IMF 2013, p. 31. See M. Waibel, “Opening Pandora’s Box: Sovereign Bonds in International Arbitration,” American Journal of International Law 101 (2007), 711–759, for an examination of how the interest of the diverse parties to a sovereign debt settlement can diverge.

   



widely – from private formal arrangements, such as international commercial arbitration that bypasses national courts, to the agreements among a growing number of international criminal syndicates. The “ruling orders” also range widely, from terrorist organizations to large global firms with the power to shape much of the global economy. The overall outcome is a multiplication of systemic edges that encompass operational spaces inside national sovereign territories yet connecting across multiple such territories. Neither those enclosed operational spaces nor the geographies that connect them across the world are part of traditional national borders or the formal interstate system. They can benefit from the deregulations and privatizations that underlie the global system, but they are not necessarily marked or made visible by these familiar innovations of the global system. They operate through other channels and construct their own geographies. The two cases examined in detail here capture this type of formation. They are partial and do not encompass a whole country, but rather construct a multisited geography with rather sharply delineated operational spaces that include only what its actors want or need. The case of holdout creditors (vulture funds) makes this highly visible. They buy a sovereign’s debt in country a, launch a lawsuit against that sovereign in country b, and chose to do so in a regular court – which is not the norm in dealing with a sovereign. In constructing such a process, they bring in play, and help strengthen, operational spaces that in the past never connected this way. The case of private trading networks, or “dark pools,” in high finance makes visible a vast global network of private electronic domains tightly bordered, difficult to access, yet dependent on localized capital and local investments in country after country. These two instances are quite extreme in their use of specific national facilities and their capacity to construct cross-border spaces that meet their particular needs. I conceive of these as extractive economies. As I indicated in the introduction, the larger project from which this is drawn also includes types of formations that enable weak actors to make claims, focusing especially on human rights and environmental activist networks.

INDEX

absorption of the court, 158 abstract norm, 313 accommodation, 216, 252, 261, 280 accountability gap, 212 accountability in judicialization of politics, 73–80 acquis communautaire, 104 acquis humanitaire, 104 adaptionism, 38, 58 Advisory Panel of Experts (APE), 90–91, 101–103, 108 Alexy, Robert, 176, 314 American federalism, 57 American Revolution, 348 antagonism, 192, 318, 326, 345, 347, 349 anti-democratic political parties, 67, 110 anti-party parties in politics, 337 antimajoritarianism and democracy, 35, 46–47 Apex courts attack against, 330–331, 334 cooperation and, 248 EU context, 234, 237 impact of, 259, 333, 361 judicial review, 331, 343 jurisdictional essentialism, 268, 334–335 populism and, 318, 320, 322–323 TOGAs and, 278 Aquinas, Thomas, 251 Arendt, Hannah, 346 argumentative representativeness, 282, 287 Aristotle, 42 Asshiddiqie, Jimly, 292

Australian Constitutional Court, 26 authoritarian populism, 325 authoritarian regimes/rulers defense of, 332 judicial review by, 25, 32–34 military dictatorships, 333 populist authoritarian regimes, 328–330 authoritative allocation of values, 32 authoritative constitutional review, 37 autopoietic conception of law, 40 Avotins v. Latvia, 210–211, 221 backlash, 298–300, 303 Barak, Aharon, 53–54, 299–300 Basic Laws of the Union, 234 border crossings/border regimes, 368–371 borderings, 365, 367, 369, 372 borders and operational spaces, 366–368 Bowman v. UK, 128–130 Brazilian Constitution, 13 Brazilian Supreme Court counter-majoritarian role, 174–175, 182 enlightened role, 178–181 representative role, 175–178 Brexit, 106, 133, 251, 275–276 Brighton Declaration (2012), 132, 275 Brown v. Board of Education, 180 Buckley v. Valeo, 130 Bundesverfassungsgericht, 209, 224, 234 Bush v. Gore, 56–60, 62, 308 campaign finance, 77, 128–131 Canadian Constitutional Court, 26, 40



 Canadian Supreme Court, 177–178 capital market, 374–376 capitalist economy, 28–29 capitalist order, 332 case-law cooperation, 237–243 CETA (Comprehensive Economic and Trade Agreement), xi, 199 Citizens United v. Federal Election Commission, 56–59 civil law jurisdiction, 33 civil rights, 48–49 civil society associations and initiatives of, 318 constitutional courts and, 6, 16, 72, 363 fighting populist authoritarianism, 334–341 judicialization of, 163 political class and, 164, 175 Colombian Constitutional Court, 71 Committee of the Regions in Europe, 254 common law-countries, 311 common legal space, 239 communism, 64, 157, 327 Communist Party, 142 community of law (Rechtsgemeinschaft), 184 comparative constitutional law, 300–302 competitive elections, 79 compromise, 7, 80, 186, 215, 219, 248–249, 252, 274–275 Conference of European Constitutional Courts, 237 Conseil d’État, 289 consensus method, 14–15 constitutional adjudication democratic governance, 2–3, 15–16 insurance function of, 143–144, 160 political consequences of, 37–38 politics of, 307–317 transnational context, 249 constitutional amendments, 146, 225, 290–291 constitutional complaint, 240, 242, 247, 308



constitutional court judges. See heroic constitutional court judges Constitutional Court of Poland. See Polish Constitutional Court constitutional courts. See also heroic constitutional court judges; populist governments and constitutional courts; representativeness of constitutional courts accountability, 73–80 autonomy of, 69, 74 civil society and, 6, 16, 72, 363 democratic legitimacy of judicial power, 9–13 judicial review, 22–34 rejection of, 360–364 transnational constitutional courts, 1, 9–13 constitutional democracy, 36, 58, 94, 111–114, 176, 331–334, 342, 344–350, 355–360 constitutional embeddedness of judicial institutions, 282, 289, 364 constitutional identity, 247, 353 constitutional interpretation, 42–44, 59, 144, 147, 158, 174, 315–316 constitutional judgments, 308 constitutional jurisdiction, 165–168, 174, 176 constitutional norms, 4, 314–315 constitutional patriotism, 360 constitutional people, 356 constitutional review, 71, 81 constitutional theory, 174 constitutionalism, 2–3, 356 constitutionalization of politics, 40–64, 348–349 Consultative Council of European Judges (CCJE), 238 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 262 cooperation Apex courts and, 248 case-law cooperation, 237–243 civil society cooperation, 334–341





cooperation (cont.) extra-case-law cooperation, 237–238 in-case-cooperation, 241–243 intra-case-law cooperation, 239–243 ping-pong game cooperation, 7 Council of Europe Advisory Panel of Experts, 90–91 counter-heroic judges, 299 counter-majoritarian difficulty, 39, 157, 174–175, 182 court-packing-plan, 147, 340 courts. See Apex courts; constitutional courts; specific supreme courts Cover, Robert, 252 crimes against humanity, 262–263 criminal jurisdiction, 33, 167–168 criminalization of undocumented movement, 265 cross-border geographies, 365–366, 372 cross-border joint ventures, 253 death penalty case, South Africa, 51–53, 64 decision-making modes of judicial power, 3–8, 10 declaratory action of constitutionality (ADC), 166 deliberation advisory committee for, 86 decision-making and, 311 importance of, 5, 362 internal deliberation, 249 judicial deliberation, 248, 286 legal arguments through, 313 political deliberation, 174 deliberative democracy, 176 democracy. See also judicialization of politics in new democracies antimajoritanism and, 35 constitutional adjudication for, 2–3 constitutional democracy, 36, 58, 94, 176, 331–334, 342, 344–350, 355–360 deliberative democracy, 176 illiberal democracy, 157–161 law of democracy, 8, 122 liberal constitutional democracy, 282, 331, 342–355

liberal representative democracy, 318 plurality of democracies, 16, 337–338, 342 representative democracy, 336 democratic constitutionalism, 143 democratic effectiveness, 13–16 democratic legitimacy, 9–13, 21–35, 174, 343 demos-sphere, 357 difference between judicial and political decision-making, 4, 17 difference of communication, 6, 17 difference of competence, 6, 17 difference of methodology, 6, 17 difference of representativeness, 6, 17 difference of temporality, 6, 17 differentiation of powers, 5 dignity based concerns, 50 diplomatization, 233, 243–249 discounts, 253, 259–280 discrimination, 49 discursive level of the public debates, 5, 17 diversity of legal cultures, 236 Dixon, Rosalind, 300 Dworkin, Ronald, 48 ECHR. See European Convention on Human Rights ECJ. See European Court of Justice ECtHR. See European Court of Human Rights Egyptian Constitution, 320–337 Egyptian Supreme Constitutional Court, 70 election law, 57, 115, 192, 308 electoral system, 78–80, 120, 325 Ely, John Hart, 6, 68 Equal Protection Clause of the Fourteenth Amendment, 261 ethnic identity, 359 EU. See European Union EU-Canada Free Trade Agreement, 199 Euro crisis, 195–201 European Central Bank (ECB), 183, 196–197, 201, 241–242

 European Commission for Democracy through Law (Venice Commission), 238, 254 European Committee on Crime Problems (CDPC), 276–277 European consensus, 14, 270 European Convention on Human Rights (ECHR) Charter of Fundamental Rights, 202 judicial dialogue, 222–229, 237 jurisprudential cross-fertilization, 215–222 European Court of Human Rights (ECtHR) appointment of judges, 92, 101–102 defining democratic rights, 114 election to, 85, 87–89 judicial interactions with, 233, 240 jurisdictional overlap, 204–212 margin of appreciation, 109–110, 120, 123, 253, 260, 270 European Court of Justice (ECJ) appointment of judges, 92 EU and, 83, 222 German Federal Constitutional Court referrals to, 242–243 judicial interactions with, 233 populism and, 330 as powerful institutional player, 95 primacy of EU law, 189 European Financial Stability Facility (EFSF), 195 European integration, 11, 187–189 European Parliament (EP), 199 European Stability Mechanism (ESM), 183–196 European Union (EU) admittance to, 92 anti-liberal political tendency in, 350 ECJ and, 83, 222 process of cooperation, 11 subsidiarity in, 260 supervisory mechanism, 209 extra-case-law interactions, 237–238, 249 fascism, 229, 336 federalism, 24–26, 34–35, 252, 258–279



federalism discounts, 253, 259–280 finance and operational spaces, 373–374 First Amendment (US Constitution), 117 first-generation courts, 49, 297 Florida Supreme Court, 57 Fourteenth Amendment (US Constitution), 261 free movement of goods, 191 free trade rules, 24 free trade zones, 26 freedom of expression, 112, 117, 130, 133, 169 freedom of speech, 48–49 French ancien régime, 73 French Conseil Constitutionnel, 289 French Constitutional Council, 30, 346, 348 French constitutions, 346 French Revolution, 345 Frodl v. Austria, 126 fundamental rights judicial dialogue, 222–229 jurisdictional overlap regarding, 204–212 jurisprudential cross-fertilization, 215–222 mutual trust and, 198, 203, 212, 218–219, 221 opinion 2/13 impact, 212–215 populism and, 336 gender-based violence, 262–263 gender identity, 170 German Constitution (1949). See Grundgesetz German Federal Constitutional Court Euro crisis and, 195–199 European integration and, 187–189 Outright Monetary Transactions (OMT) program, 196–197, 201 referrals to ECJ, 242–243 transnational context, 239–240 Ginsburg, Tom, 66, 300 globalization, 16, 31, 360, 366–367, 369 gouvernement des juges, 73 Greens and M.T. v. United Kingdom, 273





Griswold v. Connecticut, 177 Grundgesetz, German Constitution (1949), 186–189, 191 Habermas, Jürgen, 5, 336 Handyside judgment, 253–269, 272 heroic constitutional court judges counter-heroic judges, 299 non-heroic courts, 301–303 successor courts, 297–301 temporality and, 303–304 Hirst v. United Kingdom, 122–127, 131–132, 272–277 human rights, 31, 263, 271. See also European Convention on Human Rights; European Court of Human Rights; fundamental rights Hungarian Constitutional Court, 64, 70, 75, 299, 351 Husted v. A. Philip Randolph Institute, 266–268 identitarian representativeness, 282, 286–287 identity abortion rights and, 271 constitutional identity, 247, 353 ethnic identity, 359 gender identity, 170 legal-political identity, 250 political identity, 270, 325–330, 334, 354–355 protection of, 360 sexual-identity discrimination, 266 illiberal democracy, 157–161 immigration laws, 265–266 impeachment courts/trials, 319, 322, 353 in-case-cooperation, 241–243 Indian Supreme Court, 283, 335 Indonesian Constitutional Court, 292 input-legitimacy, 13 insurance function of constitutional adjudication, 143–144, 160 Inter-American Commission on Human Rights, 263 intergovernmentalism, 83, 91–96, 103–104 International Criminal Court, 262–263

international criminal tribunals, 262–263 International Monetary Fund (IMF), 378–379, 381–382 international organizations (IOs), 227 international treaty system, 367 internationalization of constitutional law, 52–53 intra-case-law cooperation, 239–243 Irish Constitution, 270–271 Israeli Supreme Court, 325 Italian Constitutional Court, 50, 77 Italian Court of Cassation, 220 judicial activism, 164, 181–182 judicial behavior, 309, 311–312, 316 judicial competence, 104 judicial cooperation, 233–236, 243, 247 judicial councils, 97–98, 148 judicial creativity, 74 judicial decision-making, 3–8, 243–249 judicial deliberation, 248, 286 judicial dialogue, 2, 222–229, 237 judicial impartiality, 74 judicial independence, 13, 74, 93–94 judicial interaction, 7, 9, 233 judicial philosophy, 38, 42–44, 57–59, 62 judicial politics vs. ordinary politics constitutionalization in actual judicial decisions, 46–59 in form vs. in substance, 59–60 introduction to, 36–39 philosophical debate, 40–46 summary of, 64–65 judicial power decision-making modes, 3–8 democratic legitimacy of, 9–13 judicial power during transformation crisis of the constitutional state, 355–360 modes of transformation, 344–350 rejection of constitutional courts, 360–364 transitional constitutionality, 349–355 judicial quality, 82, 95–96, 105, 107

 judicial review, 4, 7, 22–34, 165–167, 308–309 judicial talent, 300 judicial time, 303–304 judicialization, defined, 11, 163–164, 181–182 judicialization of politics in new democracies accountability of constitutional courts, 73–80 introduction to, 66–68 judicialization, defined, 71–73 role of constitutional courts, 68–71 summary of, 80–81 junkyard dog theory of judicial review, 32–33 jurisdictional essentialism, 259–278 jurisprudential cross-fertilization, 215–222 juristocracy, 361 Kadi (I and II) cases, 221 Kelsen, Hans, 185–186 Koskenniemi, Martti, 8 Laclau, Ernesto, 326, 328 law of democracy, 8, 122 Lefort, Claude, 331 legal arguments, 310–311 legal culture, 7, 233, 236, 249 legal method, 4–5, 187, 311, 314–315 legal mistrust, 74 legal mobilization, 72 legal operation, 311 legal-political identity, 250 legal proceeding, 310 legal vs. non-legal arguments, 315 legitimacy of supranational court decisions, 113–114 liberal constitutional democracy, 282, 331, 342–355 liberal representative democracy, 318 Lisbon decision (2009), 191–193 Lisbon Treaty, 212 Lithuanian Court, 75 living tree constitution, 38–39 Luhmann, Niklas, 40–41



M. & Co. v. Germany, 209 Maastricht Treaty, 190–191, 194–195, 204–205 Marbury v. Madison, 70, 348 Marckx v. Belgium, 216 margin of appreciation (MA), 109–110, 120, 123, 253, 260, 270, 275 Marshall, John, 29 mature democracies, 71 McHugh decision, 274 mediating conflicts jurisdictional essentialism and federalism, 259–278 territorial boundaries, 253–259 Michaud v. France, 209 military dictatorships, 333 modes of decision-making, 3–8, 10 M.S.S. v. Belgium and Greece, 209–210, 218–219 multilateral agreements, 367 multinational corporations (MNCs), 58 mutual trust, 198, 203, 212, 218–219, 221 Nada v. Switzerland, 221 national sovereignty, 331 neo-institutionalism, 83, 91, 97–104 Network of the Presidents of the Supreme Judicial Courts of the European Union, 237–238 neutralization of the court, 160–161 new democracies. See judicialization of politics in new democracies Nigerian Constitution, 165 non-heroic courts, 301–303 norm implementation abstract norm, 313 constitutional norms, 4, 314–315 general norm, 313 interpretation of norms, 313 noncompliance with a fundamental norm, 166 obiter dictum, 241 operational spaces border crossings/border regimes, 368–371





operational spaces (cont.) capital market, 374–376 emergent field for transactions, 376–377 finance and, 373–374 sovereign default, 381–382 territorial inserts, 371–373 vulture funds, 366, 377–380 open statehood, 188, 360 ordinary politics. See judicial politics vs. ordinary politics originalism, 287–288 output-legitimacy, 13 Outright Monetary Transaction (OMT), 183, 196–197, 201, 241–242, 247 Parliamentary Assembly of the Council of Europe (PACE), 85, 101–102 parliamentary government, 4, 293, 319, 324 people, 2, 263–264, 356 Peruvian Constitutional Tribunal, 71 Peruzzoti, Enrique, 329 pilot judgment procedure, 125 ping-pong game cooperation, 7 plausibility argument, 312 pluralism, 235 plurality of democracies, 16, 337–338, 342 plurality of opinions, 289 Polish Constitution, 75 Polish Constitutional Court, 75 political autonomy, 68–69 political conflict, 4, 144, 186–187 political deliberation, 174 political identity, 270, 325–330, 334, 354–355 political operation, 307 political parties court decisions and, 131 legal arguments and, 311 nomination of judges, 187 spending prohibitions, 128 political time, 303–304 politicization of constitution, 40–46, 62 politicization of courts, 11, 310

politics/political context, 15–16. See also judicial politics vs. ordinarypolitics populism, defined, 325–330, 364 populist governments and constitutional courts civil society cooperation with, 334–341 constitutional democracy and, 331–334 disempowerment of, 319–325 political identity of, 325–330, 355 populist movement, 318, 320, 327–328, 336, 355, 357, 360 populist regime, 319–320, 330, 332–335, 337–338, 340 Posner, Richard, 41 post-authoritarian transformation states, 355 post-communist transformation, 350, 352 presidential governments, 293, 319 proportionality standard, 47, 281–282 public hearings, 285 public opinion, 5, 44, 115, 119, 166, 317, 338 public reason oriented approach, 288 public sphere, 2 Rawls, John, 336 reflexive constitutionalism, 3 religious education, 61 representative democracy, 336 representativeness of constitutional courts argumentative representativeness, 282, 287 identitarian representativeness, 282, 286–287 interpretive methodology, 287–289 vicarious representativeness, 282, 289–291 volitional representativeness, 282–286

 rights. See also European Convention on Human Rights; European Court of Human Rights; fundamental rights civil rights, 48–49 economic rights, 50 first generation rights, 49 second generation rights, 49 social rights, 50 Roe v. Wade, 55–56 role of constitutional courts, 68–71, 175–181 Roper v. Simmons, 54 Round Table Constitution, 324 rule of law, 16, 124 ruling orders, 382–383 Schmitt, Carl, 185, 334, 362 Scoppola v. Italy, 126–127, 273 second generation rights, 49 selection procedures, 100 self-governance rules, 2, 137 semi-Presidential constitutions, 28 separate but equal doctrine, 180 separation of powers, 3, 310 seriatim individual judgments, 248 Shapiro, Martin, 9, 13, 17 Skowronek, Stephen, 303 social divisiveness, 116 social evolution, 179 social foundations of law, 12, 14 social rights, 50 socio-political shift, 16, 359 Solange cases, 189–190, 198, 201, 224 South African constitution, 320–337 South African Constitutional Court, 50, 64, 295–296 sovereign debt, 377–380 sovereign default, 381–382 Stone Sweet, Alec, 72 subsidiarity, 132, 191, 236, 260, 275 substantive subsidiarity, 236 subunit authority, 269 successor courts, 297–301 super-majoritarian processes, 37 super-majority requirements, 75 Superior Courts Network, 254 Swiss Constitutional Court, 26



Tate, Neal, 66 Teitel, Ruti, 348–349 temporality and heroic constitutional court judges, 303–304 territories/territorial boundaries, 253–259, 365, 371–373 third wave of democratization, 343 totalitarianism, 116, 229 transformational processes of European integration, 8 transitional constitutionality, 349–355 translocal organizations of government actors (TOGAs), 253–259 transnational constitutional courts, 1, 9–13 transnational judicial interactions cooperation problems, 233–236 cooperation types, 237–243 diplomatization of judicial decision-making, 243–249 diversity of legal cultures, 236 extra-case-law cooperation, 237–238 gaps in knowledge and sensitivity, 235–236 in-case-cooperation, 241–243 intra-case-law cooperation, 239–243 national and transnational courts, 233–235 obiter dictum, 241 as ping-pong-like, 243–247 transnational law, 233–235 transnational organizations of government actors (TOGAs), 254–256, 258–259, 268–269, 278–279 Treaty of Amsterdam, 86 Treaty of Lisbon, 85, 88, 90 Treaty of Maastricht, 84, 246 Treaty of Rome, 85 tri-dimensional crisis of constitutional adjudication, 153 Tunisian Constitution, 321–322 ultra vires-control, 191 ultra vires decisions, 193–194, 234 UN Human Rights Committee, 271





unconstitutional constitutional amendments, 291, 297, 334 US civil rights, 30 US Constitution, 343 US Department of Justice, 268 US federalism, 253 US Supreme Court, 55 Valiuliené v. Lithuania, 263 Vallinder, Torbjörn, 66 Venezuelan Supreme Court, 322–323 vicarious representativeness, 282, 289–291 Vienna Convention on the Law of Treaties, 227 Vinter v. The United Kingdom, 135 violence against vulnerable people, 263–264

Violence Against Women Act (VAWA), 260–263 volitional representativeness, 282–286 voting rights prisoner access, 122–127, 272–275 system for the European Parliament election, 192 voice of political parties, 80 vulture funds, 366, 377–380 Warren, Earl, 180, 299, 333 Weber, Max, 358, 361–362 Weiler, Joseph H.H., 106–107 Weimar Republic, 187–188, 357 World Bank, 97, 378 World War II, 27–28