From Democracy to Juristocracy

Law & Society Review, Sep 2004 by Goldstein, Leslie Friedman

From Parliamentary Sovereignty to Rule by Judges

Both the Sweet and the Hirschl volumes deal with the "judicialization of politics" as it takes place via the practice of constitution-based judicial review. Although these are both wonderful books, filled with interesting theorizing, fascinating case accounts, and astute analysis of the political implications of various judicial moves, there is a sense in which much of what agitates them (or, more properly, of what they expect will agitate their readers) is old hat to American judicial scholars. In continental Europe, England, and those of their former colonies here examined, parliamentary sovereignty has something of the flavor of the flag and apple pie in the United States. Parliament represented vox populi and stood for the revolutionary replacement of the Crown by the people. The constitutional traditions of these countries understood the elected legislature (not the appointed judges) as the guardian of democracy and the role of the courts as simply la bouche de la loi. The job of the courts was to apply pre-existing legislatively adopted rules to settle disputes among the people. Even in the common law countries, the courts were understood to be applying pre-existing customs of the community rather than inventing new rules. And these rules could always be overridden by a parliamentary majority. Administrative review (judging whether an executive exercised power in an unauthorized way) fits comfortably into this paradigm; it too presented the judge as the agent of parliamentary sovereignty. All of this changed in the second half of the twentieth century, with the adoption of constitution-based and then European Higher Law-based judicial review.

Evidently the myth that this paradigm has not changed-or has changed much less than matches the reality-lingers in Europe because political scientists there do not often study courts and law professors do not often acknowledge that judges make policy (Sweet 28, 115, 131, 136-37, but cf. Guarneri & Pederzoli, who note "growing recognition" of the phenomenon at 185). (Sweet, Guarneri, and Pederzoli are obvious evidence that this pattern is changing, as is the fact that Oxford Press has a Socio-Legal Studies Series now, of which the Guarneri and Pederzoli book is a part.) Much of what occupies the Hirschl and the Sweet books is the demonstration of just how extensively the power of constitution-based judicial review has come to replace basic policy choices of the elected representatives of the people. American scholars have been discussing the tension between electoral democracy and judicial lawmaking at least since the New Deal era, and that interest groups go to court when they lose in the legislature is also by now an old story on this side of the Atlantic and the Great Lakes, as is the fact that judges sometimes order sweeping reforms on the basis of negatively worded rights (as when federal judges ordered prison reform or busing for desegregation).

That said, there is much else in their books that warrants attention, both from scholars of comparative politics who much too often study only the electoral branches, and from scholars of American courts, who too often fail to acquire the perspective on the judicial branch that can come from an exposure to other examples of it. It is long past time to abandon such a narrow focus; it produces a truly distorted picture of the politics of countries with constitutional courts and an unfortunately limited image of judging.