Monday, January 04, 2010

Comparative Reflections on the Counter-Majoritarian Difficulty, Originalism, etc

Posted by Mike Dorf

During my recent visit at the Interdisciplinary Center, I had a number of extended discussions with Aharaon Barak, former President of the Supreme Court of Israel, and the man chiefly responsible for introducing judicial review to Israel.  He took the view that Americans are obsessed with questions about the legitimacy of judicial review (the so-called "counter-majoritarian difficulty," hereafter "CMD") whereas judges, lawyers, and academics in other countries accept it, even as they argue about the content of constitutional provisions that the courts interpret.  Most of the Israeli academics with whom I spoke, including at a faculty workshop at which I presented a paper, seemed to share this view.  Here I'll make a few observations.

1) I was a little surprised to hear this view coming from Israelis because the introduction of judicial review into Israel has not been without its critics.  Certainly the religious parties have been unhappy about it, and there is a substantial body of criticism from the left that makes arguments critical of judicial review quite similar to those one sees in the U.S.  Still, one can conclude that Israelis in general accept judicial review from the fact that they haven't done away with it.  Israel's "constitution" consists of a series of Basic Laws that were adopted by the Knesset (Israel's parliament) by simple majorities and that could, in principle, be repealed by simple majorities.  So too, the Knesset could, by simple majority, abolish judicial review or introduce "soft" judicial review of the sort one sees under Article 33 of the Canadian Charter of Rights and Freedoms, permitting legislative override of particular unpopular decisions by the Supreme Court.  (The theory that justifies the Knesset to enact Basic Laws with constitutional status at all is that when Israel became a state in 1948, the Knesset was both its parliament and its constituent assembly, and that it never lost the latter status.)  The failure of the Knesset to take strong action against judicial review can be taken as a kind of ratification of the practice--although that certainly doesn't mean it has been uncontroversial.  In any event, when President Barak and his colleagues told me that the counter-majoritarian difficulty is a peculiarly American obsession, I think they were drawing a contrast between the U.S. and the rest of the world more generally, rather than between the U.S. and Israel as such.

2) I agree with President Barak's observation about the U.S., with the important qualification that not everyone in the U.S. is obsessed with the CMD. In fact, I would venture that most American constitutional scholars, judges and lawyers accept and are glad for the existence of judicial review as an important piece of our overall constitutional system.  Two factors probably account for the focus of so much American scholarship on judicial review.  First, very important Justices and scholars of the 1950s and 1960s continued to fret about it; having come of age at a time when judicial review was generally used to strike down progressive legislation, they never lost their skepticism of courts, even when, during the Warren Court and early Burger Court era, it was overall a liberal force.  These scholars set the agenda for another generation of liberals who thought it necessary to try to justify judicial review.  Second, influential conservatives--both in the academy and, more importantly, on the Supreme Court--have been setting the agenda for the last 20 years by arguing that judicial review is only legitimate if tied to one or another version of originalism.  Scholarship can be an insular enterprise, and so one article or book generates another, and another, and so on, thus generating the appearance of a systemic obsession.

3) President Barak also made the causal claim that the American obsession with the CMD is a product of the fact that the U.S. Constitution is much more difficult to change than most other constitutions for democratic countries.  In the U.S., a Supreme Court decision invalidating legislation has more staying power and is thus more counter-majoritarian than in countries where a constitutional amendment simply requires a 2/3 majority in each house of the legislature (as is in much of the democratic world).

I think this is a plausible hypothesis but I don't entirely agree with it.  I would point to the fact that some of the harshest academic critics of judicial review are not Americans, but come from countries in which a simple majority vote can undo a constitutional decision of the high court.  E.g., Jeremy Waldron, a New Zealander educated in the U.K., and James Allen, a Canadian who teaches in Australia.  (Of the UK, Canada, NZ, and Australia, only Australia requires something like a super-majority: proposal by a simple majority in each house of the legislature followed by a majority vote in a national referendum and a majority on the referendum in a majority of states; that is much easier to achieve than an amendment in the U.S.)

Thus, I think the more salient division is between the common law world and the civil law world.  (Israel is an intermediate case.)  Common lawyers learn from their very first day of law school how a judge deciding a close case can turn the system of precedent in the direction she favors, whereas civil lawyers traditionally were taught that the Code is complete and that judges had little discretion.  In addition, with no tradition of published dissents and with short judgments, judicial discretion in civil systems was hidden.  This probably explains why legal realism was a much greater force in the common law world than in the civil world.  And it also explains, in my view, why common lawyers are more dubious about the claims by their high court judges that the constitution (or the Charter in Canada, the Human Rights Act in the UK, or the Bill of Rights Act in NZ) requires that some law be struck down.

4) The main argument against my hypothesis is that the constitutional courts of Europe now look indistinguishable from courts making constitutional decisions in common law countries.  They write long, reasoned decisions, usually including dissents.  And they jointly participate in systems of transnational litigation with judges and lawyers from common law countries.  What this says, at the very least, is that if the common law/civil law distinction accounts for the division at issue, it should go away over time.


Doron said...

Thanks Mike for this very interesting post. A few short comments:

1. The first point that you make is valid, although you mention that the "left" in Israel criticized the Supreme Court. I think what you meant to say is that it is the right. Indeed, many right-wing thinkers and representatives accuse the Court of being a "branch" of Meretz (a very liberal-left faction, which hardly garnered votes in the last elections).

2. To demonstrate this point -- and the similarities with the U.S. System - a few right-leaning Knesset members offered just last week to "pack the court" - i.e., to increase the number of Justices from 15 to 18, and by that to "undo" some of the Court's recent "anti-Zionist" (their words) decisions. [It is important to mention that the Israeli Supreme Court sits in panels of three, just like the Court of Appeals here; and much like the Circuit Courts here, it sits in key cases en-banc, but with no more than 11 Justices).

3. The proposal was defeated this morning by the Knesset standing Judiciary committee, with the Justice Minister (roughly equivalent to Eric Holder here) rumored to have said that he will resign if the proposal passes. Thus, in that sense as well, the faith of both offers to pack the Court was similar. Alas, "switch in time" for the Israeli Supreme Court; not yet, at least.

Michael C. Dorf said...

Thanks Doron, but I did mean the left, in addition to the right. E.g., I think of someone like Ruth Gaveson as comparable to Jeremy Waldron or Mark Tushnet--sympathetic to the liberal results but opposed to judicial review in principle.

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I was a little surprised to hear this view from the Israelis because the introduction of judicial review in Israel has not been without criticism.

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