The gavel and the robe.(the history of judicial review in democratic nations)

"The gavel and the robe. " The Economist (US).  352.8131 (August 7, 1999): 43. Academic OneFile. Gale. WSI Wenatchee Valley College. 14 Aug. 2009 


Unelected judges have a great deal of power in modern democracies. They are appointed for life, and can declare laws passed by democratically elected legislature unconstitutional. The concept was pioneered by the United States in 1803, but was of little importance until after the civil war. In the mid-1900s, the idea began to catch on in Europe during the rise of fascism.

Full Text:COPYRIGHT 1999 Economist Newspaper Ltd.

Established and emerging democracies display a puzzling taste in common: both have handed increasing amounts of power to unelected judges. The fourth article in our series on changes in the mature democracies examines the remarkable growth and many different forms of judicial review

TO SOME they are unaccountable elitists, old men (and the rare woman) in robes who meddle in politics where they do not belong, thwarting the will of the people. To others they are bulwarks of liberty, champions of the individual against abuses of power by scheming politicians, arrogant bureaucrats and the emotional excesses of transient majorities.

Judges who sit on supreme courts must get used to the vilification as well as the praise. They often deal with the most contentious cases, involving issues which divide the electorate or concern the very rules by which their countries are governed. With so much at stake, losers are bound to question not only judges' particular decisions, but their right to decide at all. This is especially true when judges knock down as unconstitutional a law passed by a democratically elected legislature. How dare they?

Despite continued attacks on the legitimacy of judicial review, it has flourished in the past 50 years. All established democracies now have it in some form, and the standing of constitutional courts has grown almost everywhere. In an age when all political authority is supposed to derive from voters, and every passing mood of the electorate is measured by pollsters, the growing power of judges is a startling development.

The trend in western democracies has been followed by the new democracies of Eastern Europe with enthusiasm. Hungary's constitutional court may be the most active and powerful in the world. There have been failures. After a promising start, Russia's constitutional court was crushed in the conflict between Boris Yeltsin and his parliament. But in some countries where governments have long been riven by ideological divisions or crippled by corruption, such as Israel and India, constitutional courts have filled a political vacuum, coming to embody the legitimacy of the state.

In western democracies the growing role of constitutional review, in which judges rule on the constitutionality of laws and regulations, has been accompanied by a similar growth in what is known as administrative review, in which judges rule on the legality of government actions, usually those of the executive branch. This second type of review has also dragged judges into the political arena, frequently pitting them against elected politicians in controversial cases. But it is less problematic for democratic theorists than constitutional review for a number of reasons.

Democracy's referees

The expansion of the modern state has seemed to make administrative review inevitable. The reach of government, for good or ill, now extends into every nook and cranny of life. As a result, individuals, groups and businesses all have more reason than ever before to challenge the legality of government decisions or the interpretation of laws. Such challenges naturally end up before the courts.

In France, Germany, Italy and most other European countries, special administrative tribunals, with their own hierarchies of appeal courts, have been established to handle such cases. In the United States, Britain, Canada and Australia, the ordinary courts, which handle criminal cases and private lawsuits, also deal with administrative law cases.

The growth of administrative review can be explained as a reaction to the growth of state power. But the parallel expansion of constitutional review is all the more remarkable in a democratic age because it was resisted for so long in the very name of democracy.

The idea was pioneered by the United States, the first modern democracy with a written constitution. In fact, the American constitution nowhere explicitly gives the Supreme Court the power to rule laws invalid because of their unconstitutionality. The court's right to do this was first asserted in Marbury v Madison, an 1803 case, and then quickly became accepted as proper. One reason for such ready acceptance may have been that a Supreme Court veto fitted so well with the whole design and spirit of the constitution itself, whose purpose was as much to control the excesses of popular majorities as to give the people a voice in government decision-making.

In Europe this was the reason why the American precedent was not followed. As the voting franchise was expanded, the will of the voting majority became ever more sacrosanct, at least in theory. Parliamentary sovereignty reigned supreme. European democrats viewed the American experiment with constitutionalism as an unwarranted restraint on the popular will.

Even in the United States, judicial review was of little importance until the late 19th century, when the Supreme Court became more active, first nullifying laws passed after the civil war to give former slaves equal rights and then overturning laws regulating economic activity in the name of contractual and property rights.

After a showdown with Franklin Roosevelt over the New Deal, which the court lost, it abandoned its defence of laisser-faire economics. In the 1950s under Chief Justice Earl Warren it embarked on the active protection and expansion of civil rights. Controversially, this plunged the court into the mainstream of American politics, a position it retains today despite a retreat from Warren-style activism over the past two decades.

Attitudes towards judicial review also changed in Europe. The rise of fascism in the 1920s and 1930s, and then the destruction wrought by the second world war, made many European democrats reconsider the usefulness of judges. Elections alone no longer seemed a reliable obstacle to the rise of dangerously authoritarian governments. Fascist dictators had seized power by manipulating representative institutions.

The violence and oppression of the pre-war and war years also convinced many that individual rights and civil liberties needed special protection. The tyranny of the executive branch of government, acting in the name of the majority, became a real concern. (Britain remained an exception to this trend, sticking exclusively to the doctrine of parliamentary sovereignty. It is only now taking its first tentative steps towards establishing a constitutional court.)

While the goals of constitutional judicial review are similar almost everywhere, its form varies from country to country, reflecting national traditions. Some of the key differences:

Appointments. The most famous method of appointment is that of the United States, largely because of a handful of televised and acrimonious confirmation hearings. The president appoints a Supreme Court judge, subject to Senate approval, whenever one of the court's nine seats falls vacant. Political horsetrading, and conflict, are part of the system. Judges are appointed for life, though very few cling to office to the end.

Other countries may appoint their constitutional judges with more decorum, but politics always plays some part in the process. France is the most explicitly political. The directly elected president and the heads of the Senate and the National Assembly each appoint three of the judges of the Constitutional Council, who serve non-renewable nine-year terms, one-third of them retiring every three years. Former presidents are awarded life membership on the council, although none has yet chosen to take his seat.

Half of the 16 members of Germany's Federal Constitutional Tribunal are chosen by the Bundestag, the lower house of parliament, and half by the Bundesrat, the upper house. Appointments are usually brokered between the two major parties. The procedure is similar in Italy, where one- third of the 15-strong Constitutional Court is chosen by the head of state, one-third by the two houses of parliament and one-third by the professional judiciary.

Senior politicians--both before and after serving in other government posts--have sat on all three constitutional courts, sometimes with unhappy results. In March Roland Dumas, the president of France's Constitutional Council, was forced to step down temporarily because of allegations of corruption during his earlier tenure as foreign minister. The trend in all three countries is towards the appointment of professional judges and legal scholars rather than politicians.

Powers Most constitutional courts have the power to nullify laws as unconstitutional, but how they do this, and receive cases, varies. Once again, the most anomalous is France's Constitutional Council which rules on the constitutionality of laws only before they go into effect and not, like all other courts, after.

The 1958 constitution of France's Fifth Republic allowed only four authorities to refer cases to the council: the president, the prime minister, and the heads of the two houses of parliament. In 1974, a constitutional amendment authorised 60 deputies or senators to lodge appeals with the council as well. Since then, the council has become more active, and most appeals now come from groups of legislators. Individuals have no right to appeal to the council.

French jurists argue that judicial review before a law goes into effect is simpler and faster than review after a law's promulgation. But it is also more explicitly political, and leaves no room for making a judgment in the light of a law's sometimes unanticipated effect.

No other major country has adopted prior review exclusively, but it is an option in Germany and Italy as well, usually at the request of the national or one of the regional governments. However, most of the work of the constitutional courts in both countries comes from genuine legal disputes, which are referred to them by other courts when a constitutional question is raised.

The Supreme Courts of the United States, Canada and Australia, by contrast, are the final courts of appeal for all cases, not just those dealing with constitutional issues. The United States Supreme Court does not give advisory or abstract opinions about the constitutionality of laws, but only deals with cases involving specific disputes. Moreover, lower courts in the United States can also rule on constitutional issues, although most important cases are appealed eventually to the Supreme Court.

Canada's Supreme Court can be barred from ruling a law unconstitutional if either the national or a provincial legislature has passed it with a special clause declaring that it should survive judicial review ``notwithstanding'' any breach of the country's Charter of Rights. If passed in this way, the law must be renewed every five years. In practice, this device has rarely been used.

Judgments. The French and Italian constitutional courts deliver their judgments unanimously, without dissents. Germany abandoned this method in 1971, adopting the more transparent approach of the common-law supreme courts, which allow a tally of votes cast and dissenting opinions to be published alongside the court's judgment. Advocates of unanimity argue that it reinforces the court's authority and gives finality to the law. Opponents deride it as artificial, and claim that publishing dissents improves the technical quality of judgments, keeps the public better informed, and makes it easier for the law to evolve in the light of changing circumstances.

Also noteworthy is the growth in Europe of supra-national judicial review. The European Court of Justice in Luxembourg is the ultimate legal authority for the European Union. The court's primary task is to interpret the treaties upon which the EU is founded. Because EU law now takes precedence over national law in the 15 member states, the court's influence has grown considerably in recent years. The European Court of Human Rights in Strasbourg, the judicial arm of the 41-member Council of Europe, has, in effect, become the final court of appeal on human- rights issues for most of Europe. The judgments of both European courts carry great weight and have forced many countries to change their laws.

Despite the rapid growth of judicial review in recent decades, it still has plenty of critics. Like all institutions, supreme courts make mistakes, and their decisions are a proper topic of political debate. But some criticisms aimed at them are misconceived.

Unelected legislators?

To criticise constitutional courts as political meddlers is to misunderstand their role, which is both judicial and political. If constitutions are to play any part in limiting government, then someone must decide when they have been breached and how they should be applied, especially when the relative powers of various branches or levels of government--a frequent issue in federal systems--are in question. When a court interprets a constitution, its decisions are political by definition--though they should not be party political.

Supreme courts also are not unaccountable, as some of their critics claim. Judges can be overruled by constitutional amendment, although this is rare. They must also justify their rulings to the public in written opinions. These are pored over by the media, lawyers, legal scholars and other judges. If unpersuasive, judgments are sometimes evaded by lower courts or legislatures, and the issue eventually returns to the constitutional court to be considered again.

Moreover, the appointment of judges is a political process, and the complexions of courts change as their membership changes, although appointees are sometimes unpredictable once on the bench. Nevertheless, new appointments can result in the reversal of earlier decisions which failed to win public support.

Constitutional courts have no direct power of their own. This is why Alexander Hamilton, who helped write America's constitution, called the judiciary ``the least dangerous branch of government.' Courts have no vast bureaucracy, revenue-raising ability, army or police force at their command--no way, in fact, to enforce their rulings. If other branches of government ignore them, they can do nothing. Their power and legitimacy, especially when they oppose the executive or legislature, depend largely on their moral authority and credibility.

Senior judges are acutely aware of their courts' limitations. Most tread warily, preferring to mould the law through interpretation of statutes rather than employing the crude instrument of complete nullification. Even the American Supreme Court, among the world's most activist, has ruled only sections of some 135 federal laws unconstitutional in 210 years, although it has struck down many more state laws.

Finally, it is worth remembering that judges are not the only public officials who exercise large amounts of power but do not answer directly to voters. Full-time officials and appointees actually perform most government business, and many of them have enormous discretion about how they do this. Even elected legislators and prime ministers are not perfect transmitters of the popular will, but enjoy great latitude when making decisions on any particular issue. Constitutional courts exist to ensure that everyone stays within the rules. Judges have the delicate, sometimes impossible, task of checking others' power without seeming to claim too much for themselves.

Gale Document Number:A55465224