The Judge as Political Theorist: Contemporary Constitutional Review

The Judge as Political Theorist

PRINCETON UNIVERSITY PRESS

Chapter One

Le Conseil constitutionnel est une jurisdiction, mais il ne sait pas; mon rôle est de lui faire prendre conscience de sa nature. -Robert Badinter, president of the Conseil constitutionnel, 1986-95

The theme of this book is that modern constitutional review cannot always be adequately understood if seen through the traditional categories of the separation of powers. Constitutional courts do more than can be fitted into the domain allowed to courts exercising the judicial function. Much of what they do in what I call "transforming societies" involves spreading the values set out in the constitution throughout their state and society. Indeed, their idea of what a constitution is does not always fit well with the orthodox idea of a liberal constitution. I try to show that constitutional judges often come near to being applied political theorists, carrying out a quite new type of political function. This first chapter develops some of these concepts and sets out the plan of the book, offering technical information and definitions to be filled out in the substantive chapters.

A few examples always help in setting out a general approach. Though this book is primarily about "new" constitutional review in countries undergoing some form of transformation, I begin with a different sort of example. It is chosen not from a new constitutional court, or one involved in transformative jurisprudence, but from the oldest court doing constitutional review, what is beyond doubt the model court, the US Supreme Court. There are two reasons for this. First, the Supreme Court is familiar-if the reader knows anything about constitutional review, it is likely to be about America's experience. Second, I hope to show that the patterns and ideas that are relevant in newer jurisdictions have their counterparts even in this oldest and most familiar territory.

In 2003 the Supreme Court overturned one of its own precedents, a precedent that had only stood for seventeen years. The case was Lawrence v Texas, which challenged a state law criminalizing some homosexual practices. The ruling precedent, Bowers v Hardwick from 1986, ought to have made the case unnecessary. In Bowers a Georgia state law that made sodomy punishable by up to twenty years' imprisonment was challenged. Hardwick had been arrested for committing sodomy when a police officer had entered his house and found him with another man. In the end he was not prosecuted, but undertook a civil suit against the state claiming the law was unconstitutional. Though the federal appeals court agreed with Hardwick, the Supreme Court ruled that Georgia was entitled to use the criminal law to impose the majority's moral code.

The Supreme Court is not totally forbidden to overturn its own previous decisions, but puts a very strong value on stare decisis, the rule of precedent. Certainly it is rare for the court to change its mind so soon after a major ruling, even one as controversial as that in Bowers v Hardwick. That case had raised a huge protest because it clashed with liberalising trends in American society during the 1970s and 1980s. When Lawrence v Texas overruled Bowers, there was an equivalent uproar from political and judicial conservatives. When major courts do overturn their own precedents, they usually do so because they think an earlier decision has become inappropriate for a later society. Or they at least shade their disagreement with the past decision. The US Supreme Court of 2003 was much blunter. The majority opinion says outright, "Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent." This really was a choice by the Supreme Court-it could have held for Lawrence without overruling Bowers. The majority opinion explicitly says that the justices rejected an alternative approach that would have disallowed the Texas statute on narrower grounds. In fact Justice O'Connor, who voted along with the majority to overturn the Texas law, had been part of the majority in Bowers and still thought it correct. To find the law under which Lawrence was prosecuted unconstitutional, she used an approach quite different from that offered in the majority opinion. But if the court in 2003 did not have to overrule Bowers, the court in 1986 did not have to rule on the constitutionality of the Georgia statute at all-it would have been perfectly possible to overturn the court of appeals by simply ruling, as the Supreme Court was invited to, that the case was moot. Right at the beginning, the first Georgia court to hear the case had ruled that Bowers had no cause of action because he had not actually been prosecuted.

The first point to make is that courts sometimes really do set out deliberately to make major legal statements. No one can avoid the fact that two US Supreme Courts, only seventeen years apart, felt so strongly about the issue of criminalizing homosexual behaviour that they took up challenges that could have been avoided. Both courts, though radically opposed to each other, felt it their duty to make law in this way. The second point to make at this stage is how much personnel changes matter. Since the 1930s the US Supreme Court has always had nine justices; though this number is not prescribed in the constitution and has not always been mandated by law, it may have hardened into a "constitutional convention." Of the nine men and women who heard Lawrence, only three survived from the Bowers court, and one of them, O'Connor, effectively changed tack. The six new appointments split four to two against the ruling in Bowers. On such minor things as judicial death and retirement can depend something as fundamental as a shift in a nation's public morality. (The route by which people become judges is commented on later, especially, as an example, in chapter 4 on France.)

In other ways this relatively ordinary piece of constitutional adjudication shares many of the features to be discussed at length in this book. The ruling in Lawrence is a self-conscious "modernization" of values, and an imposition of them. Much of the disagreement about the case revolves round the question of whether or not public disapproval of private behaviour can justify legal restrictions, but discussion is always admixed with matters of what I have called elsewhere "judicial methodology"-the rules to be applied in deciding such cases. So those who wanted to overturn the Texas law claimed that there was no important and legitimate government aim served by it. Their opponents said that the law needed no such aim, because that test applies only to rights that are "deeply rooted in this Nation's history and tradition." Much of what will follow in this book is about what tests are applicable in what circumstances.

Part of the disagreement over Lawrence is factual-the two sides differ on the history of legal constraints on homosexuality-and we will see frequent use and misuse of claims to empirical knowledge in other jurisdictions. Much of the disagreement over Bowers and Lawrence is disagreement over what the cases are actually about. For both sides the issues have little to do with homosexuality in itself. For the majority in Lawrence the issue is the right of the citizen to be left alone in private. For the other side, the cases are about the right of the state governments to reflect majority feeling within their territories with no federal intervention. Sociologists might call this the "framing" of the issues. A matter of framing or perception is the "What is this all about?" question, asked at a lower level. What is it about for the actual people caught up in the legislation? To the majority in Bowers, it is only a matter of their sexual activities. To the majority in Lawrence, it is a deep matter of human dignity, and the consequences for those liable to be prosecuted are far more onerous than the actual sentences. Indeed, where the protection of dignity is concerned, it does not matter that such laws as the Georgia and Texas statutes are hardly ever invoked. Not only will such framing issues occur in several contexts later in the book, but the concept of dignity will prove to be the most important single value in modern judicial review.

Lawrence, if not Bowers, raises the question of whether legal and constitutional thinking outside the United States counts in US courts. The majority in Lawrence attach great importance to, inter alia, decisions of the European Court of Human Rights, because they regard moral opinion across developed democracies as an important measure. To the minority, such matters are utterly irrelevant, because only aspects of American moral history are relevant or can legitimately be cited. (The extensive use of foreign judgements, so that a sort of international constitutional law is rapidly developing, will be discussed several times in this book.) These cases are about, and are examples of, what has come to be called "legal culture." They have to do with the way different generations and groups of judges are socialised or have their "professional formation." Justice Scalia makes this abundantly clear in one of his harshest condemnations of the Lawrence majority. I quote him at length to make this point (lengthy quotations from the judges are a major part of my technique throughout the book):

Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct.... One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." ... It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream."

Scalia may well be unfair, but the fact remains that matters like a profession's own rules crucially shape the way constitutional law develops. I shall often refer to this idea of a legal, or politico-legal, culture.

Finally, there is one thing that neither Bowers nor Lawrence is really about. Neither case depends on interpretation of the US Bill of Rights, or any other part of the constitution-or not in any sense of textual interpretation that one would find outside law, and especially constitutional law. Nowhere in the constitution is homosexuality or sodomy mentioned. Indeed, nowhere in that document is any matter of sexual rights or behaviour mentioned. The whole of the more apparently "legal" parts of the opinions in Bowers and Lawrence are about previous judicial glosses on the constitution. This practice, as the book will show, is true to a large extent everywhere in adjudication. As soon as constitutional issues arise and are given judicial consideration, a rich body of interlinked judicial thought develops. This body of judicial material, part of what the French Conseil constitutionnel calls the bloc de constitutionnalité, is both the result of, and a constraint on, judicial review. Judges often decide on constitutionality by relying on what other judges have said more than on the document that is supposed to be controlling.

Introductory Definitions and the Plan of the Book

What is constitutional review? At one level this question is a technical matter of constitutional law. Constitutional review is a process by which one institution, commonly called a constitutional court, has the constitutional authority to decide whether statutes or other decrees created by the rule-making institutions identified by the constitution are valid given the terms of the constitution. It is a highly reflexive process. Such a definition tells us nothing about the purpose of constitutional review in the political system; it tells us nothing about the impact of constitutional review on the governance of the society; it does not describe constitutional review as a functional element in the political complex we usually call a state. Some liberal democracies, probably most by now, have some form of constitutional review, but not all, so it is not just a definitional element of democracy. As long as impeccably democratic nations-states like the Netherlands do without judicial review, its presence and functioning in other countries must invite serious inquiry. Only a very subtle argument would suggest that Norway, which has judicial review, is more democratic than the rest of Scandinavia, which does not. This whole book is really dedicated to answering one question-what does constitutional review do for the countries that have it? Ostensive definition can get us started. Constitutional review answers questions like these:

Can a state pass legislation prohibiting floor-crossing by those elected to its legislature? Can a state forbid a wide range of state officials to join political parties? Can the new democratic parliament of a former Communist state pass a law characterising the previous regime as a state of "lawlessness"? Can a state decriminalize the actions of doctors and patients involved in terminating a pregnancy? Can an education authority ban teaching material that treats homosexual partnerships as equivalent to heterosexual families? Can a state nationalise its banking sector?

Yet these are only questions where something exists to make them questions-obviously states can, and do, do all of these things. They become real questions only where two conditions apply: there must be a constitution purporting to restrict what a state can do, and there must be a body independent of the legislature and executive empowered to test state action against that constitution. Where a parliament is entitled itself to decide whether or not its laws satisfy constitutional limitation, the constitution, in this respect at least, cannot be more than advisory or aspirational. There is a rich and complex literature in political theory considering whether a system of independent oversight on parliamentary legislation is fully compatible with democracy. This book will not do more than touch tangentially on some aspects of that debate. It is not, however, irrelevant to the debate, because my concern here is to give a much fuller characterization of what exactly happens in judicial review than the theoretical literature normally concerns itself with. However, my concerns are also much narrower than those of the theoretical debate. I have chosen to concentrate almost entirely on constitutional review mechanisms in societies that have undergone major change, where constitutional review of legislation has been added to an ongoing society, either in a new constitution or as something grafted on to a continuing constitutional tradition. In essence I am looking to see what constitutional review tries to do, and how it does it, in societies undergoing a form of political transformation. This focus is not new. For example, Bruce Ackerman's seminal study of the international development of constitutional review is based on two general scenarios. One is federalism; the other is what he calls "new beginnings." The latter

operates with a different logic, dealing in expressive symbols, not functional imperatives. Under this scenario a constitution emerges as a symbolic marker of a great transition in the political life of a nation.

(Continues...)

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