Judges Gone Wild: Euro Edition
In comments, NickS mentioned Alec Stone Sweet
as a judicial scholar to read. Didn't get to it, but an itchy mouse-clicker finger led me to this long survey
of a bunch of books on judicial systems around the world, including one by Sweet. Interestingly, the practice of judicial review—i.e. the ability for courts to throw out laws—was pretty much confined to the United States and Norway until 1942. Up until then, most nations guarded their "parliamentary sovereignty" jealously. But things change, and nowadays more than eighty countries have the ol' review in place. Ran Hirschl, whose book I've been reading, argues that this came about, at least, in non-European countries like New Zealand because once-dominant groups were losing power after World War II, and wanted to enshrine certain constitutional rights that would keep formerly marginalized groups in line. But that's not overly relevant for now.
the good stuff: What happens when you have Godzilla-sized judicial review, as they do in Europe? Ah, Europe. With the rise of the bureaucratic welfare state, you get an increasing number of complex laws that require interpretation by the courts. So judges in Europe are essentially making more and more actual policy these days. Plus, European bill of rights are very extensive—containing rights to adequate pay and housing, to pensions, etc. etc.—so the courts really have to wade in frequently and apply various "balancing" tests to various laws. These courts, according to Sweet, often "interpret" statutes so freely that the become barely recognizable to the legislature that passed them. Even better, in France, Germany, Italy, and Spain, a sizeable minority in parliament can request judicial review before
a bill actually becomes a law. The mere threat of this is often enough to make the majority compromise. And you thought we
had a judiciary "run amok."
But hey! What if the courts go too far
? Well, in theory, European parliaments can amend the constitution to overrule activist judges, but in practice that's very difficult. The German constitution, for instance, forbids any changes that affect "the essence of a basic right." In other words, most everything. In fact, the French legislature is one of the few that can easily amend constitutions to skirt judicial review, but even they've only done it
twice—to tighten immigration rules [and
improve gender representation]. So much for that. Then there's the whole question of nominating judges. As you'd imagine, it's a pretty fundamental power for a European ruling party, and in fact, when a party that's been enthroned for a long time is finally voted out, there's usually some temporary brawling between the legislature and judiciary, as the Old Guard's judges lay the smackdown on the New Guard's laws. Really, the only check on judicial power is the fact that judges are good people and try to maintain their own legitimacy by satisfying as many people as possible. That's your restraint.
Anyway, it's tough to say whether judicial review on steroids is a good thing or bad thing. Ran Hirschl thinks the constitutionalization of rights and move towards "juristocracy" is a bad thing, of a piece with the "broder neoliberal global trend toward delegating power away from electorally accountable bodies and toward quasi-autonomous decision-makers." For now, I'm in his camp, though one should add that the details matter.
Obviously the independence of the judiciary depends, to some extent, on what sort of political controls are built into the promotion system for judges. In Japan, for instance, judges are appointed by taking a civil service exam. So you'd think they'd be ultra-independent. But not so! They are more likely to get promoted if they toe the party line, and the party line is dictated from on high by the Japanese Supreme Court, which is in turn appointed by political parties in the Diet. Not so independent after all. So in theory there can always be strong political controls on the judiciary, and Europe's trying to put some of these in place. On the other hand, as the survey says in its conclusion, these books all show "just how far courts can push in the modern world without getting taken over politically." Fair warning.