From Democracy to Juristocracy

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

To the extent that not even the constituent power of the people can alter certain parts of the constitution or principles that judges claim to find therein, judges rule the land. Only new interpretations from the high courts can alter these "core" parts of these constitutions, and since interpretations are altered far more typically by new judges than by their original authors, the power to select and appoint (and remove) judges becomes absolutely fundamental. Sweet does not give attention to this issue (beyond stating the formal selection, tenure, and eligibility rules, at 46-49), although he does note that when a party of long-term dominance is ousted, one can expect a temporary rise in the number of judicial-legislative clashes, which will diminish over time as the newly dominant party puts its judges into power. Guarneri and Pederzoli analyze judicial recruitment extensively, so I will return to their book below.

The only political check on the judging power explored and acknowledged by Sweet stems from judges' concern for having their rulings carried out. This concern, which extends to a concern for maintaining their own legitimacy (diffuse support), moves judges, he says, to adopt decisions that "split the difference" between opposed parties, in effect trying to come up with moderate, compromise solutions. This practice of the judges amounts to an internalized political constraint. By avoiding producing decisions at a political extreme, they seek to assure that their policymaking will be viewed as unbiased and fair (Chs. 1, 5, pp. 90, 200).

The truly fascinating sections of both the Sweet and Hirschl books are the many illustrative case accounts provided in both. In these case accounts, Sweet is at his best, offering detailed and nuanced narratives of the delicate interplay of political and judicial forces that combine to produce policies on politically volatile issues.

With the account of pension reform in Italy, for instance, American readers can witness the dynamic of judicial enforcement of a positive right in the face of legislative intransigence. In this instance, the Italian Constitutional Court, confronting claims over some fifteen years of unequal treatment on the subject of pension calculation rules, finally issued a ruling in 1988 "inviting" the legislature to harmonize its pension law across different industries. Parliament stonewalled. Not until five years later did the court rule the situation in violation of rights and demand legislative reforms by, at the latest, the next budget bill. It threatened to provide its own solution if Parliament did not meet the deadline. Parliament did. One observes here parallels to the prison reform and busing litigation in the United States.

Similarly, one can read detailed accounts of the political forces producing abortion law reform in Spain and Germany (twice) and of the complicated judicial responses to these reforms (Sweet 109-13). In Germany, for instance, the Constitutional Court does not allow abortion to be "legalized" but does allow an open policy to let it "go unpunished" under a detailed set of (generally permissive) circumstances. The practical difference seems to be that "legalization" in Germany would entail government or insurance company funding of abortion costs, so such funding has now been cut off.