From Democracy to Juristocracy

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

Abstract judicial review functions similarly to the plan of James Madison's proposed (but rejected) Council of Revision (comprising the U.S. Supreme Court justices). In his version all bills, once approved in both houses, would be subjected to the review, but the Council's veto could get overridden with a two-thirds vote in each house of Congress. Thus, one-third plus one vote in either house coupled with a majority of the justices could block a law. On the continent, as should be predictable, whenever the legislative minority in opposition to a law is big enough in these abstract review systems, if they seriously oppose the law, they go to court to ask for a reversal (of course, dressing their request in proper legal discourse). The mere threat that they might do so is often enough to get the majority to compromise so as to stave off a court challenge or to rephrase the law to comport with the language of constitutional court precedent.

When the latter transpires, Sweet points out the second sense in which judicial influence comes to dominate legislative bodies: legislative discourse, indeed legislative thinking, has become shaped by judicial readings of constitutions. In anticipatory reactions, legislators ask themselves, "Will this bill be ruled unconstitutional?" and then modify the bills according to the expected response of the Constitutional Court. Thus, the thinking of the Constitutional Court takes over the legislative process by insinuating itself into the very minds of the legislators. Sweet sees this version of the judicialization of politics as being pushed first by the opposition that initiates or threatens a constitutional challenge because it wants to win on the policy question, but also by the ruling party whenever it incorporates the anticipated judicial response into its framing of the bill to avoid a court challenge.

Sweet focuses with good reason on the relatively new power of constitution-based judicial review. He freely acknowledges that European judges have often "interpreted" statutes so as to render them barely recognizable to the legislatures that adopted them, and that this practice has been no secret. So judicial power per se is not what is new. It has always been possible for a determined legislative majority to override the interpretive power of judges. Constitutional review is a different story. Although in terms of the mechanical requirements, constitutional amendment is considerably easier in European polities than in the United States,9 and thus in principle could be used to check the courts, the current European ethos seems to have rendered it largely unusable. In Spain, for instance, the constitution can be revised by a three-fifths vote in each of the two legislative houses or, if a rights provision is at issue, by a two-thirds vote plus a simple majority in a national referendum (Sweet 59).10 Compared to the U.S. system, which requires two-thirds of each house of Congress and then approval in threequarters of fifty state legislatures, all but one of which contains two houses in the legislature (each of which wields a veto), the Spanish arrangement seems easy. Yet Sweet tells us that in Spain and Italy, legal scholars consider "core rights provisions" immune to constitutional revision. In Germany, the constitution (or Basic Law) singles out two articles (1, which affirms human dignity, and 20, which affirms the democratic and federal nature of the constitution) as nonamendable and explicitly provides for restricting various itemized rights in order to secure other constitutional values (Articles 17a, 18, 19), but bans doing so in a way that affects "the essence of a basic right." In short, those essences amount to unamendable parts of the constitution. Of course, the bounds of those essences are determined by the Constitutional Court. France alone (of Sweet's four cases) does not secure selected parts of its constitution against any amendment (59),11 and France alone of the countries Sweet examines offers an example (but only one) of an instance where the constitution was amended (in a move to tighten immigration rules) in order to overturn a ruling of the Constitutional Council (89).