Judicial Activism? You Ain't Seen Nothing Yet . . .

The debate that has emerged among Dan Solove, Mark Graber and Jack Balkin on this blog shows that calling a practice “judicial activism” implies a violation of some background understanding of what “normal” judicial decision-making is. So – having promised some comparative blogs along the way -- I’d like to add an additional comparative twist to Mark’s invocation of Ran Hirschl’s book. (If anyone reading this has not already read Hirschl’s book, it is much recommended!)

A stroll through the garden of comparative law is a quick way to disorient one’s sense of normal.

By international comparison, the US Supreme Court – even in its “federalism revolution” days – is still well behind many other national high courts in striking down national laws enacted by elected legislators. Let me give a few examples:

• the French Constitutional Tribunal found constitutional objections to be valid with regard to roughly half of all laws presented to it for review between 1981-1993. Such constitutional objections blocked promulgation of these laws. (Source: Martin Shapiro and Alec Stone Sweet, On Law, Politics and Judicialization. Oxford UP, 2002 at 89).
• the Hungarian Constitutional Court struck down nearly one-third of all laws (31%) presented to it for review between 1990-1993. In 1994-1995, the rate of declaration of unconstitutionality of statutes fell to a “mere” 24%. (Source: The Constitutional Court of Hungary, booklet published by the Court in 1996.)
• the Colombian Constitutional Court struck down 27% of all of the laws presented to it for “abstract review” between 1991-2002 and sided with individuals in complaints against the government in 58% of the “tutela” cases (complaints that particular decisions of state bodies violated the constitution). (Source: Justice Manuel José Cepeda-Espinoza, “Judicial Activism in a Violent Context,” 3 Wash. U. Global Stud. L. Rev. 529 (2004) at 559.)

And these sorts of comparisons could be multiplied. In many parts of the world, judicial intervention to decide whether legislation is constitutional and to determine whether the concrete decisions of state bodies meet constitutional standards is widespread, commonplace and highly aggressive by American standards. In fact, the high regard in which these high courts are held throughout the world can be attributed to the fact that they take their roles as constitutional guardians seriously. Judicial engagement with the enterprise of ensuring the constitutional nature of state action is understood as a sign of real constitutional government. It would be alarming if courts did not perform these roles.

American complaints of judicial activism assume that judges should, in the main, do very little. Why is this? I think that fear of judicial activism comes from two sources, both of which are not nearly as toxically present in these other systems that have aggressive judicial review:

1. The design of systems of judicial selection in many other countries guarantees that no one political faction dominates the courts while, in the US, party-political dominance of the courts can be an actual electoral goal. Courts elsewhere, as a result, often have a greater independence from rough-and-tumble politics than has historically been true in the US.

2. Perhaps most crucially, the constitution is easier to amend in most constitutional systems that provide for very aggressive judicial review than is the case with the US constitution. If there is supermajority political disagreement with the decisions of these aggressive courts, then, the elected branches have a way to fight back short of declaring war on the courts.