The Global Expansion of Judicial Power

C Neal Tate, Torbjorn Vallinder

• Publisher: NYU Press
• Year: 1997
• ISBN:
  9780814770061
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

In Russia, as the confrontation over the constitutional distribution of authority raged, Boris Yeltsin's economic program regularly wended its way in and out of the Constitutional Court until Yeltsin finally suspended that court in the aftermath of his clash with the hard-line parliament. In Europe, French and German legislators and executives now routinely alter desired policies in response to or in anticipation of the pronouncements of constitutional courts. In Latin America and Africa, courts are--or will be-- important participants in ongoing efforts to establish constitutional rules and policies protect new or fragile democracies from the threats of military intervention, ethnic conflict, and revolution.
This global expansion of judicial power, or judicialization of politics is accompanied by an increasing domination of negotiating or decision making arenas by quasi- judicial procedures. For better or for worse, the judicialization of politics has become one of the most significant trends of the end of the millenium.
In this book, political scientists, legal scholars, and judges around the world trace the intellectual origins of this trend, describe its occurence--or lack of occurence--in specific nations, analyze the circumstances and conditions that promote or retard judicialization, and evaluate the phenomenon from a variety of intellectual and ideological perspectives.

1.
The Global Expansion of Judicial Power:
The Judicialization of Politics

C. NEAL TATE AND TORBJÖRN VALLINDER

THE EXPANSION OF JUDICIAL POWER

Bob Bullock, the lieutenant governor of Texas, plaintively appealed to a television newscast audience in May 1993: “We really need help. I’m not a proud man. I’ll accept suggestions from anybody, because we really need help!” What was the cause of Bullock’s distress? As presiding officer of the Texas Senate, he was reacting to the overwhelming rejection by the state’s voters of a so-called Robin Hood constitutional amendment state leaders had devised to equalize funding of the state’s school districts. The amendment was the latest effort of the legislative and executive branches of the Texas government to solve a school funding crisis that had plagued them for four years. The rejection of the amendment meant that the legislature now faced the task of coming up with yet another solution to the funding dilemma—within one month, if they wished to avoid a promised cutoff of state funding and possible shutdown of the state’s public schools. Whence came the dilemma and the deadline? From a state district judge who was implementing a decision of the Texas Supreme Court that had declared the system of funding public education to be in conflict with the requirements of the state’s own constitution.

It has not been very common in Texas for state judges to cast the leaders of elected governmental institutions onto the horns of such a policy dilemma. The same cannot be said for federal judges. Indeed, a single federal district judge, William Wayne Justice, is famous/notorious for his decisions requiring Texas to reshape its policies regarding public education, mental health, juvenile justice, prisons, and other areas (see Kemerer 1991). The experience of Texas is far from unique. Virtually every American state has been, in recent years, under a variety of mandates from its own courts or those of the national government to revise its policies governing the provision and funding of basic state services of one kind or another.

If we shift our attention from Texas and the other individual states to the United States, such vigorous policy-making by judges is even less surprising. For better or worse, students of American government and politics are used to the phenomenon: cussing and discussing, analyzing and advocating, and commending and condemning it have long been the favorite political and intellectual activities of many.

Shifting our attention once more, from the United States to the world, those who are blase about the ubiquity of judicial dictates of public policy in the United States might be surprised to learn that the phenomenon of judges making public policies that previously had been made or that, in the opinion of most, ought to be made by legislative and executive officials appears to be on the increase. In fact there are several factors that support this development, this move toward what all would recognize as the American pattern: the expansion of judicial power.

Several of these factors are international in their scope. Perhaps the most stunning of these has been the breakdown of totalitarian communism in Eastern Europe and the disappearance of the Soviet Union, leaving the United States, the home of the judicialization of politics, as the one and only superpower.

Closely connected is the trend to democratization in Latin America, Asia, and Africa. Being for democracy does not necessarily require one to support the expansion of judicial power, as we shall see. But given the circumstances under which many new democracies are being constructed, the inclusion of a strong judicial wing seems almost inevitable to some governmental architects.

Another international factor of a less spectacular, but nevertheless probably important, character is the mounting influence of American jurisprudence and political science. The interest in, perhaps obsession with, courts and legal procedures among scholars at U.S. universities has certainly made an impression on their colleagues from different parts of the world. For example, at the beginning of this century almost no Swedish legal scholar or political scientist had been to the United States. Today such visits are routine matters for young Swedish political scientists and certainly are more common than in the past even for Swedish legal scholars. In the U.S. these academics learn what their old-fashioned textbooks did not tell them: that courts are related to politics, and vice versa. Then they return home and tell their teachers.

In Europe, the European Convention and Court of Human Rights in Strasbourg have been of great importance in spreading the gospel of judicialization, not only through the rulings of the court, but also through the debates initiated through the working of the system. Even the Swedes have slowly come to realize that they are not world champions of human rights and that strengthening the domestic courts may be an appropriate move toward achieving that goal.

Of course domestic developments have been important in many different countries. In the U.S. harsh criticism of elected politicians has always been a major industry—witness the works of Mark Twain, among many others. In more recent decades, such events as the Watergate affair have enhanced the prospects for investors in that industry. One must remember that in that affair, the third branch of government came out less badly than the second one, not to mention the first.

A similar pattern can be found in many other democratic countries: distrust of ministers and MPs is now more marked than distrust of judges. All three branches may be regarded as corrupt, but some are more corrupt than others.

Turning to developments within individual nations, one finds much evidence for the global expansion of judicial power. For example, next door to the U.S. exemplar, the Supreme Court has become, at least since the adoption of the Charter of Rights in 1982, a major influence on the policies of provincial and cultural autonomy that persistently threaten to break up the Canadian Confederation. Across the Atlantic, judges in the United Kingdom are increasingly involved in reviewing the discretionary acts of the administrators of a wide variety of government programs, contrary to their tradition.

On the Continent, the activities of Italy’s “peculiar judiciary” (see chapter 13 by Giuseppe Di Federico) have been, for better or worse, largely responsible for publicizing and prosecuting patterns of large-scale corruption that have thrown the whole country into a political turmoil that is shattering, perhaps permanently, the basic structure of Italian politics and government. Although the American judiciary came out of the Watergate scandal with a better reputation than the other institutions, that reputation would nevertheless pale in comparison to the outright popularity and celebrity status developed in recent years by some of the Italian magistracy.

Somewhat to the north, French and German legislators and executives now routinely alter desired policies in response to or in anticipation of the pronouncements of constitutional courts, and, as we have already noted, member states of the European Community are beginning to alter domestic policies as a result of rulings of the Court of the European Community. In such unlikely locations as Sweden and the Netherlands the prospect of elected governments changing policies in response to the dictates of their courts seems certain to increase as a result of decisions made at the European level and also because of local developments. In tiny Malta changes in governments have led in recent years to periods of intense conflict between majoritarian and judicial institutions.

In Russia the legislative-executive confrontation over the constitutional distribution of authority and Boris Yeltsin’s economic policies regularly wended its way in and out of the Constitutional Court—before Yeltsin suspended that court in the wake of his 1993 conflict with and victory over the “hardline” parliament dominated by his political opponents. In Israel the politicians have learned to live with policy limits imposed by a judiciary that has, for all practical purposes, invented a binding constitution where none exists. In India the Supreme Court has established extraordinary procedures to encourage “public interest litigation” designed to protect and enhance the economic and political interests of disadvantaged classes and groups (see Barr 1992). In the Philippines, as well as in Latin America and in Africa, courts are or will be important participants in ongoing efforts to establish constitutional rules and policies that will protect newly established or still fragile reestablished democracies from the threats of military intervention, ethnic conflict, and revolution. Even as this is written, Namibians are being governed and South Africans are contemplating elections and majority government under the rules of new constitutions that grant a prominent and inevitably controversial role to courts: protecting the rights of minorities against the majority—in this case, the rights of the white minority that for generations used its power to deny any substantial rights to the nonwhite majority.

THE JUDICIALIZATION OF POLITICS

The phenomenon we have just described represents the most dramatic instance of the global expansion of judicial power, which, for brevity, we shall frequently refer to as “the judicialization of politics.” Another, less dramatic instance of the expansion of judicial power, or judicialization, is the domination of nonjudicial negotiating or decision-making arenas by quasi-judicial (legalistic) procedures. This instance also appears to be on the rise. Again for better or worse, the judicialization of politics may be or may become one of the most significant trends in late-twentieth and early-twenty-first-century government. It deserves careful description, analysis, and evaluation.

We seek, in this book, to make a substantial contribution to the understanding of the judicialization of politics. Drawing on the expertise of political scientists, law scholars, and other students of courts and judges around the world, we provide careful definitions of the term and its intellectual origins, descriptions of its occurrence—or lack of occurrence—in specific nations, analyses of the circumstances and conditions that appear to promote—or to retard—judicialization, and, not least, evaluations of the phenomenon from a variety of intellectual and ideological perspectives.

Some students of the topic appear to approve of the judicialization of politics. Asha Gupta (1992) seems to say that the needs of the poor in India are so great and also so unlikely to be fulfilled by majoritarian institutions alone that courts and judges must be actively involved in politics. Justice Carmel A. Agius and Nancy A. Grosselfinger (in chapter 21) approve the active defense of rights inconsistently provided by Maltese judges. Salvador Lozada (1992) probes the perils inherent in what he feels to be a necessary judicialization of politics in the reemerging Latin American democracies.

But analysts of the judicialization of politics are not necessarily fans. Many politicians and scholars have long been suspicious of a process that substitutes the policy judgment of usually unelected representatives of the socioeconomic and political elite for that of majoritarian political institutions. Agius and Grosselfinger’s discussion of the Maltese case provides graphic evidence of the hostility of the supporters of that nation’s principal leftist party to “interference” by judges in policy matters, if one accepts sacking the courts when they decide against the interests of the left as evidence of hostility. The expansion of the policy role of Canadian courts since the adoption of the Charter of Rights in 1982 has been viewed with concern not just from the left (see Mandel 1989, as an example), but also from the right and center, as the chapters by W.A. Bogart and Peter H. Russell and the work of Patenaude (1992) document. The chapters by Brian Galligan and David R. Slater, Christine Landfried, and Michael Mandel and the work of Edward A. Fitzgerald (1992) illustrate that such suspicion exists among observers representing a variety of ideological orientations.

THE BOOK

This work has five parts, of unequal size. Part 1 introduces the book’s theme, defining the “judicialization” concept that underlies our exploration of the global expansion of judicial power and exploring the likely institutional and behavioral conditions under which such expansion is likely to occur. In two chapters, Torbjorn Vallinder defines the judicialization concept and traces its intellectual roots, and C. Neal Tate explores the institutional and behavioral conditions that promote the judicialization of politics.

Part 2 explores judicialization in the major English-speaking democracies that share the common-law tradition. It begins with a base-laying chapter by Martin Shapiro summarizing the experience of the putative home of judicialization, the United States. Shapiro concludes that the long-term expansion of judicial power in the United States may have leveled off at the national level, even though the expansion of judge-like or legalistic procedures to new decision-making arenas continues apace.

Part 2 proceeds with an analysis by Maurice Sunkin of the expansion of judicial power in the United Kingdom, the common-law country that by most standards would appear to be least hospitable to judicialization. Sunkin finds considerable expansion of judicial power via judicial review of the acts of administrative agencies, but little judicialization that has directly affected the policy-making prerogatives of Parliament. He also finds that even the judicialization that has occurred has not necessarily served to provide citizens a useful check on the administrative decisionmaking.

The remainder of part 2 surveys judicialization in Australia and Canada, two nations in which judicialization appears to be an increasingly relevant, if not always approved, aspect of national politics. For Australia, Brian Galligan and David R. Slater investigate how the judiciary intruded into what many would have regarded as the most sacred precincts of cabinet government, before finally retreating. John Power explores the increasing role of the judiciary in immigration policy and processing, showing how judicialization has progressively removed them from the control of majoritarian institutions and the administrators who report to them. For Canada, W.A. Bogart explores the extent to which judicialization can be expected to support progressive social policies, reaching skeptical conclusions after a careful analysis of the arguments surrounding the issue. Perhaps reacting to those who have seen the Supreme Court as likely to engage in a wholesale usurpation of majoritarian policy-making, Peter H. Russell analyzes what he feels are likely to be self-imposed constraints on the further judicialization of Canadian politics.

Part 3 considers the expansion of judicial power in the European democracies that share, to a greater or lesser degree, the Romano-Germanic legal tradition. History and tradition would deny the appropriateness of judicialization in these polities. Nevertheless, current evidence suggests that it has entrenched itself firmly in Italy, France, and Germany, and that it is becoming more common in the even less likely settings of Sweden, the Netherlands, and the Maltese microstate.

Part 3 begins with several cross-national analyses that lay foundations for subsequent country-based investigations. Anna Mestitz and Patrizia Pederzoli review the training and selection of Italian, French, and German judges, showing how these processes relate to strengthening or weakening judicial decision-making and how the distinctive Italian practices support an irresponsible expansion of the power of possibly ill-trained and less-than-competent legal personnel in that nation. Francesca Zannotti supports the analysis of Mestitz and Pederzoli and the subsequent chapter by Carlo Guarnieri by exploring how salary provisions affect the patterns of judicial independence in the United States and Italy. Alec Stone’s examination of the expansion of the power of the constitutional courts of France and Germany demonstrates the striking similarities, as well as the differences, in the ways those institutions have reshaped majoritarian politics in their nations.

Subsequent portions of part 3 scrutinize the expansion of judicial power in individual political systems. The case of Italy is the subject of extended analysis because it offers perhaps the most striking current illustration of the consequences that have emerged from judicialization in the Romano-Germanic tradition countries. Giuseppe Di Federico introduces the “peculiar” magistratorial institutions of his country that have led to one part of this striking judicialization. Carlo Guarnieri then demonstrates how rules designed to guarantee the independence of Italian judges also provide a basis for the extraordinary judicialization of politics. Michael Mandel, a well-known critic of the expansion of judicial power in Canadian politics, compares the Italian case with what has happened in Canada and argues that, despite relatively favorable conditions for promoting more equalitarian social policies, the Italian judiciary has also essentially judicialized politics in favor of conservative interests.

Turning to France and Germany, we find that by focusing on the principal regular and administrative judicial hierarchies rather than on the work of the Conseil Constitutionnel, Jacqueline Lucienne Lafon paints a rather different portrait of the extent and prospects for the expansion of judicial power in France than does Alec Stone. Even so, Lafon’s purpose is to show how judicialization has still emerged within the stringent constraints of the classical perspective on French law. The expansion of judicial power in German politics is analyzed critically by Christine Landfried because of its apparent impact on the effectiveness of parliamentary and executive institutions. Unlike some critics, however, Landfried argues that there will be occasions on which courts make what is, from her perspective, a positive contribution to policy and to the effectiveness or representativeness of majoritarian institutions. Thus she concludes with an attempt to specify the circumstances under which judicialization is appropriate. Finally, H. G. Peter Wallach reviews the prospects for judicialization from the perspective of the problems resulting from reunification. Wallach argues that, while the possibility of the expansion of judicial power as a result of reunification was great in the abstract, the architects of reunification took steps to reduce the chance that it would occur in fact.

For the smaller democracies, Barry Holm...