Chapter 3. Decision Making
In 1610, English judge Edward Coke boldly asserted that judges had the authority to veto the decisions of Parliament. As a result, Coke was reassigned to a lesser court, called in by the King to defend his extraordinary claim to power, and ordered to rewrite his decision (Plucknett 1926, 50). As Coke learned to his detriment, asserting the power of judicial review can provoke retaliation from other policy makers.
Since Coke’s time, judges in many countries have claimed the power to veto the decisions of other policy makers. Some have experienced political retaliation, but others have been more strategically adroit than Coke, finding ways to expand judicial power while avoiding direct conflict with other policy makers. In this chapter, I explore the initial claims to the power of judicial review made by high courts in the United States, Canada, and South Africa. One striking point emerges from this comparison: judges in all three places were successful in expanding the power of their courts because they acted strategically when first claiming the power of judicial review.
Strategy and Institutional Identification
The current debate in the field of judicial politics over the relative strengths of the attitudinal model and the strategic model is in large measure a dispute over the extent to which supreme court justices sincerely pursue their policy goals. Both approaches share the idea that the justices are “policy seekers” whose primary motivation is to achieve policy goals. This focus on policy goals is important, but it presents an overly narrow account of judicial motivations.
Judges are also motivated by the desire to protect and promote the power of their courts. Protecting a court’s institutional authority helps judges maintain the power to achieve policy goals (Epstein and Knight 1998; Vanberg 1998), but it also helps them safeguard their institutions. Judges are likely to feel a sense of institutional responsibility for their courts. Institutions like the judiciary tend to become an important “locus of identification” for the officials affiliated with them (Egeberg and Saerten 1999, 94). Institutions “mold their own participants, and supply systems of meaning for the participants” (Peters 1999, 26) so that officials tend to develop a sense of personal affiliation and stewardship for the institutions they serve.
These concerns lead judges to act strategically to preserve judicial authority. Acting strategically is necessary both because judges depend on others to help enforce their decisions and because others have the ability to attack the judiciary and reduce its power. As Gillman argues, “Those who are affiliated with the Court should be expected to deliberate about protecting their institution’s legitimacy and (relatedly) adapting their institution’s mission to changing contexts and actions of other institutions; in other words, institutional actors must consider issues of institutional maintenance” (1999, 81). Courts must maintain a positive political reputation in order to persuade other policy makers to comply with their decisions. Because the judiciary is politically vulnerable (to noncompliance and to counterattack), judges have strong incentives to act strategically to maintain their institutional standing. We should therefore expect judges to be “institutionally minded,” acting strategically to maintain the power of their courts.
Sometimes this means judges will have to choose between safeguarding judicial power and voting for the policies they prefer. When other policy makers are threatening the judiciary, judges may sacrifice their immediate policy goals in order to “live to fight again another day.” US history provides many examples of strategic retreats. After the Civil War, congressional Republicans viewed the Supreme Court as a threat to Reconstruction. As members of Congress were discussing impeachment and considering measures to repeal Court authority, the Supreme Court reversed itself to rule in favor of the congressional majority. During the Great Depression, the Court struck down several key provisions of the New Deal. After President Roosevelt won reelection in 1936, with overwhelming Democratic majorities in the House and Senate, the Supreme Court reversed its position on the constitutionality of economic regulation—a move referred to as the “switch in time that saved nine.” And during the McCarthy era, the Supreme Court withdrew its earlier support for those who had refused to give testimony before the House Un-American Activities Committee in response to congressional threats to repeal the Court’s jurisdiction. In each of these cases, the justices faced serious threats to their power and strategically sacrificed policy goals to deflect attacks on institutional power.
Judges also make strategic advances. Courts have become more influential in many places since World War II (Tate and Vallinder 1995), often by asserting judicial authority in ways calculated to avoid retaliation. Constitutional courts in Israel and New Zealand have taken advantage of encouragement from powerful elites to assert themselves politically (Hirschl 2000). Judicial review was first used in France not to challenge popular laws but to overturn extremely unpopular legislation (Mullen 1998). The Constitutional Court of the Republic of Italy struck down many laws from the fascist period while upholding most legislation passed by the contemporary Parliament and Council of Ministers (Volcansek 1992). Similarly, the Constitutional Court of South Africa asserted its power by overturning laws made during the apartheid era rather than taking on the contemporary regime (Smithey 2006).
Judges also use cases where they agree with challenged policies to advance judicial power. Such cases allow judges to write opinions that both please other policy makers (by upholding the policy) and expand the power of courts (by increasing judicial jurisdiction or discretion). For example, the European Court of Justice has made its most expansive claims for judicial power in cases that upheld member state policies (Alter 1998). Sunkin (1994) documents a similar phenomenon in England, where British judges have often declared that they have jurisdiction over administration issues and then ruled in favor of the government. These votes appeared to be deferential, thereby avoiding backlash from other policy makers, but precedent has been set for greater judicial power. In each of these instances, judges acted from vantage points created either by siding with public opinion or by supporting the policy choices of other officials to claim greater power while keeping the risk of retaliation low. Strategic institution building is clearly a recurrent form of judicial behavior.
Strategic Responses to Uncertainty in the Early Years
We are most likely to see strategic behavior from judges on courts with less institutional authority and fewer established safeguards. To test this expectation, we must examine the behavior of courts with degrees of institutional strength that are very different from the modern American Supreme Court. This can be accomplished by comparing courts from different countries according to their institutional positions. In this chapter, I take a comparative approach, focusing on judges in three countries as they first asserted the power of judicial review. The period in which judges first claim this power is an opportune one for studying strategic institution building. Judges have strong incentives to act strategically when they first attempt to expand their authority. Before judicial review has become a routine part of the political landscape, judges cannot assume that others will comply with its exercise. Since political support builds over time as the public is exposed to legitimating messages (Gibson, Caldeira and Baird 1998), judges are most likely to encounter public resistance and political counterattack before they have the chance to cultivate this support. At the same time, legislators and executives have institutional incentives to push back against initial assertions of judicial review, since that practice has the potential to diminish their own power (Steytler 1995). Once judges have decided to assert their authority, they face the dual risk that they will have little normative protection to forestall retaliation, while policy makers have significant incentives to retaliate. The strategic challenge for judges is to find a way to assert their authority without alienating potential supporters or sparking political retaliation.
One useful way to avoid confrontation while simultaneously establishing precedent for judicial review is to claim the power of review and then use it to rule in favor of a challenged policy. Such decisions are strategically beneficial for judges because they lay the foundation for judicial power without antagonizing those who might undermine a court’s institutional position. They represent a form of strategic activism in that they allow judges simultaneously to assert judicial authority and to avoid, or at least minimize, the risk of counterattack. We should regularly expect judges to be strategically activist during the period in which they assert the power of judicial review for the first time.
Examples of strategic activism are apparent in the behavior of high court judges in the US, Canada, and South Africa during their initial “assertive” periods. The US Supreme Court began asserting its review powers during the early 1800s under the leadership of Chief Justice Marshall. The Canadian Supreme Court first asserted a limited form of judicial review in the 1880s under the British North America Act (BNA) and later claimed full-fledged review powers in the 1980s under the Charter of Rights and Freedoms. The Constitutional Court of South Africa asserted its powers in the mid-1990s, shortly after that country adopted its post-apartheid constitution. Judges in all three places laid a legal foundation for judicial power while avoiding policy conflicts with officials who had the power to retaliate against their courts.
The Supreme Court was politically vulnerable in the early 1800s. By the time John Marshall became chief justice in 1801, the Court had already been rebuked for asserting judicial authority over the states. It was not at all clear that Congress or the executive would be any more willing than the states had been to give the Supreme Court final say over the meaning of the Constitution. In addition, the Court was considered the political ally of the Federalist Party, which had just suffered dramatic defeat in the election of 1800.
Shortly after that election, the Court faced an executive challenge to its authority in Marbury v. Madison. Lame duck president John Adams appointed William Marbury as justice of the peace, but his commission had not been delivered by the time Thomas Jefferson had been sworn in as president. Jefferson ordered James Madison, his secretary of state, not to deliver the commission. Marbury then sought a Supreme Court order to compel delivery. Jefferson made it clear that his administration would not comply with such an order. The justices faced the strong possibility not only of executive noncompliance but of outright attack on the institution. Marbury’s petition presented a real threat to the power of the Court.
The case confronted Chief Justice Marshall with a stark choice between his policy preferences and his concern for the institutional position of the judiciary. Marshall was appointed to the Court by President Adams. Based on his policy preferences alone, he would have led the other Federalists in a stinging rebuke of the Jefferson administration, culminating in an order to deliver Marbury’s commission. Jefferson had made it clear, however, that any such order would be disregarded and might serve as grounds for impeachment. Facing down the president and losing would accomplish little of worth but could do great harm to the position of the Supreme Court. As Epstein and Knight suggest, “Marshall was confronted with a dilemma: vote his sincere political preferences and risk the institutional integrity of the Court, not to mention his job, or act in a sophisticated fashion with regard to his political preferences and elevate judicial supremacy” (1998, 47). He took the latter option.
Marshall’s opinion demonstrates that judges sometimes put institutional concerns ahead of policy goals, conceding the battle to win the war. After discussing the ways in which Marbury had been wronged by the denial of the commission, Marshall avoided probable attack on the judiciary by giving Jefferson what he wanted, a refusal to order the commission delivered. He reached this outcome by holding that the Court lacked the power to issue such an order. This was true, Marshall argued, because the act of Congress authorizing such orders was unconstitutional and therefore void. Arguing that it was “emphatically the province of the judicial department to say what the law is,” Marshall claimed for the justices the power to strike down laws that were inconsistent with their reading of the Constitution. Though Jefferson rejected the idea of judicial review, Marshall left him no practical way to undo the decision. The Court had conceded its policy preference (delivery of Marbury’s commission) in the interest of laying a foundation for judicial power in the future.
Though Marshall’s sophistication in Marbury is well known, it is not his only example of strategic activism. The Marshall Court used a similar approach in its attempts to establish federal jurisdiction over the state courts. In Cohens v. Virginia (1821), the Court considered whether federal judges could overturn state court convictions they considered inconsistent with federal law. Marshall, an advocate of national power in general and Supreme Court power in particular, faced concerted opposition from states’ rights advocates and state judges who rejected oversight by federal courts. The risk of appearing politically impotent was strong. As a result, in Cohens, Marshall declared that federal courts could reverse state court convictions that were in conflict with national law. At the same time, by issuing a very strained interpretation of congressional intent, he upheld the validity of the Cohens’ conviction (Graber 1995, 89).
The Court took a similar approach in U.S. v. Schooner Peggy (1803). In that case, the Marshall Court was asked to decide whether French ships captured at sea could be treated as spoils, as the Federalists wanted, or should be returned to France, as the Jefferson administration preferred. After asserting the Court’s authority to interpret treaties authoritatively, Marshall produced a “legally questionable” interpretation of the Treaty of Mortefontaine to give Jefferson the decision he wanted (Graber 1998, 231).
In each of these cases, Marshall made a claim for judicial authority while declining to give orders that were likely to be disobeyed. The Marshall Court’s strategy for building judicial strength might best be summarized as “vigorously asserting judicial power in theory while declining to exercise judicial power in practice” (Graber 1998, 235–36). Such decisions do not reflect mere capitulation. Though they require judges to concede immediate policy victories, they also help lay a foundation in precedent for the future use of judicial review.
The Supreme Court of Canada engaged in strategic activism during both of its institutionalizing periods. The first of these periods occurred in the late nineteenth century, shortly after the founding of the Court. The second occurred after the adoption of the Charter of Rights and Freedoms in 1982. In both instances, the justices asserted their power to authoritatively interpret Canada’s constitution and then avoided political backlash by using that power to support challenged government policies.
Initially, the Canadian Supreme Court was not a very powerful institution. The Court was structurally weak in that it was not established by constitutional mandate, and it could be modified or even abolished by a standard act of Parliament. Its decisions could be appealed and overruled by the British Privy Council. The Court had no entrenched bill of rights to use as a basis for creating an important role for itself. The BNA, Canada’s “constituting” statute, divided government authority between the national and provincial governments, but it did not explicitly empower the Court to enforce its provisions. Parliament waited until 1876, eight years after Confederation , to create the Court and initially declined even to authorize funds for the construction of a building for its operations. The delay in creating the Court reflected significant political opposition, particularly to the idea of a court with the power to overrule acts of the central government (Smith 1983). There was serious consideration of allowing the central government, rather than the judiciary, to “rule on the constitutionality of provincial legislation” (Maclem 1988, 127).
The Supreme Court of Canada lacked significant political support. The legal establishment disapproved of the “way in which the Supreme Court of Canada had been designed and the character of its jurisprudence. . . . The court was thus faced with a pre-existing hostility even before commencing work” (Snell and Vaughan 1985, 24). Once the Court was created, a number of prominent candidates refused to serve and “the intellectual strength of the Court clearly suffered as a result” (Snell and Vaughan 1985, 15). Several proposals were introduced in Parliament to weaken the powers of the Court during its first decade.
As a result, the Court did not boldly assert itself into most aspects of Canadian politics, with one notable exception. The justices did lay a foundation for judicial power when it came to resolving disputes over the division of national and provincial power. The BNA did not specify an arbiter for federal disputes; the Canadian Supreme Court claimed that role for itself. In 1879, the justices declared that they would have the final say in interpreting the provisions of the BNA and that they would strike down as void any policy that the justices thought had been adopted by the wrong layer of government.
The Court made the claim in Valin v. Langlois . Parliament adopted the Dominion Controverted Elections Act, authorizing the creation of special commissions to review contested election results for the House of Commons. The Act specified that provincial court judges would serve on these commissions. The appellant in Valin objected to this provision, arguing that Parliament was not authorized to change the power of provincial tribunals or obligate their members to additional service. The Court unanimously agreed that the Act was within Parliament’s competence.
After taking this deferential stance, the justices went on to assert a claim of significant judicial power. After upholding the law, the justices declared that they possessed the power to strike laws down for inconsistency with the BNA. The justices declared that it was their responsibility “to declare authoritatively the principles by which both federal and local legislation are governed.” After emphasizing the powers of Parliament at several points, the justices went on to stress that the BNA limited those powers and that the justices would be the ones to enforce them. Several justices explicitly discussed the threat that parliamentary power posed to judicial authority, highlighting their awareness of the potential for retaliation against an upstart judiciary. They skirted this danger by claiming federal review powers while upholding the challenged policy. In this strategically sophisticated way, they were able to lay a foundation for judicial power while minimizing the possibility of political backlash.
A century later, the Canadian Supreme Court proceeded strategically as it began interpreting the new Charter of Rights and Freedoms. Adopted in 1982, the Charter expanded the power of the judiciary by protecting a wide range of civil liberties and by explicitly empowering courts to enforce those protections through the exercise of judicial review. This represented a considerable departure from the role formerly performed by the Supreme Court. Except in the area of federalism, the Court had primarily limited its policy making role, interpreting rights narrowly and adopting canons of construction by which policies could be found constitutional (Hogg 1983; Tate and Sittiwong 1989). This restraint had fostered a respect for judicial independence, but it also accustomed legislators to a considerable amount of judicial deference.
The adoption of the Charter of Rights and Freedoms provided a significant opportunity for judicial expansion, but there was no guarantee that claims for increased judicial power would be accepted. The Charter represented a significant departure from past practice. Though the Charter explicitly recognized judicial review, judges had little way of knowing whether other policy makers would respect a more assertive judiciary. Elected officials unwilling to comply had several options for retaliation. Section 33 of the Charter allows legislatures to reinstate judicially invalidated laws for renewable five-year periods. Legislatures may also create new courts and reassign jurisdiction to other tribunals (Smith 1983; Russell 1987). Such court-curbing measures provide a strong incentive for justices to assert their authority strategically to minimize the chances it will be undermined by legislative retaliation.
The Canadian Supreme Court did not initially assert its authority recklessly. Operation Dismantle v. the Queen , one of its earliest cases, provides a prime example of a court engaged in building institutional credibility. The case involved a challenge to a foreign policy decision taken by the cabinet to allow the US to test cruise missiles in Canadian air space. The group Operation Dismantle argued that such cooperation with the US would prompt the Soviet Union to make Canada a target for its nuclear missiles, infringing the Charter right to security of the person. The government argued that the Supreme Court lacked the authority to review foreign policy decisions. The government advocated the adoption of a political question doctrine, which it recommended the Court use to deny itself the authority to decide the case.
Rather than wall itself off from the foreign policy field, the Supreme Court pursued the midlevel strategy of asserting its authority and then using it to uphold the government’s policy choice. In his majority opinion, Chief Justice Dickson averred that he had “no doubt that disputes of a political or foreign policy nature may be properly cognizable by the courts” (1 SCR at 459). Justice Wilson concurred: “The courts should not be too eager to relinquish their judicial review function simply because they are called upon to exercise it in relation to weighty matters of state” ( 13 CRR at 309). She also noted,
Because the effect of the appellant’s action is to challenge the wisdom of the government’s defence policy, it is tempting to say that the Court should in the same way refuse to involve itself. However, I think this would be to miss the point. . . . The question before us is not whether the government’s defence policy is sound but whether or not it violates the appellants’ rights under s.7 of the Charter of Rights and Freedoms. This is a totally different question. I do not think there can be any doubt that this is a question for the courts. ( 1 SCR at 472)
Indeed, she said, the Court is not merely allowed but obligated to make decisions in such cases:
If we are to look at the Constitution for the answer to the question whether it is appropriate for the courts to “second guess” the executive on matters of defence, we would conclude that it is not appropriate. However, if what we are being asked to do is to decide whether any particular act of the executive violates the rights of the citizens, then it is not only appropriate that we answer the question; it is our obligation under the Charter to do so. ( 13 CRR at 310)
After finding that the Court had the power to make a decision, the justices voted to uphold the missile program. The majority held that the Section 7 argument was
too uncertain, speculative and hypothetical to sustain a cause of action. Thus, although decisions of a federal cabinet are reviewable by the courts under the Charter, and the government bears a general duty to act in accordance with the Charter’s dictates, no duty is imposed on the Canadian government by s.7 of the Charter to refrain from permitting the testing of the cruise missile. (1 SCR at 447–48)
This decision is perfectly consistent with the expectations of strategic activism—judges argued for an expansion of their decision-making authority, while the executive was left no practical way to undermine the decision. Rather than focusing narrowly on policy outcomes, the justices used the case as a vehicle to promote institutional power.
The justices of the Constitutional Court of South Africa have also acted strategically while attempting to establish institutional power. From the late 1940s through the early 1990s, South Africa’s government enforced policies of racial separation and repression and denied the vast majority of its citizens the right to vote. After experiencing violence at home and condemnation abroad, South Africa began a negotiated transition to democratic government and protection of civil liberties in the early 1990s. In 1994, the Convention for a Democratic South Africa adopted an interim constitution and established a Constitutional Court with the authority to enforce fundamental principles of human rights (Williams 1998; Newitt and Bennun 1995). The Court’s review power extended to regular laws and to the constitutions that would be drafted by the national assembly and the provincial legislatures. The Constitution of the Republic of South Africa, which the Court certified in December 1996, explicitly grants the Court the power to declare invalid any law or official conduct that is inconsistent with the Constitution.
The judges of South Africa’s new constitutional courts faced significant uncertainty about their authority. The Court had no traditional reservoir of goodwill to draw on for support (Spitz and Chaskalson 2000; Gibson and Caldeira 2003). As Gibson reports , “The Constitutional Court was conceived in controversy . . . and inevitably is connected to some degree by the link to the judiciary’s apartheid past. Thus, one might expect the Court to have a limited store of institutional legitimacy” (2008, 237). South Africans had finally achieved the right to elect their leaders, but judicial review meant that the Court could overturn policies favored by the people’s representatives. This had the potential to stir resentment and inspire retaliation against the Court.
More broadly, there remains considerable doubt about the country’s future. The white minority may not accept democracy; the black majority may not accept constitutional limits on its new powers. While most South Africans found common cause in their support for President Mandela, it was not at all clear how well the country would hold together under other leadership (Gibson and Gouws 1997). Given the instability of the political environment, the judges of the Constitutional Court may be concerned not only with establishing their institutional credibility but also with persuading South Africans of the legitimacy of the new regime and its constitution.
As the theory of strategic activism would predict, the Constitutional Court has employed a sophisticated approach to the task of establishing judicial review. The case of President of South Africa v. Hugo (1997) presented the South African Constitutional Court with a useful strategic opportunity. In Hugo, the Court was asked to review Presidential Act No. 17 (akin to an executive order), which remitted the sentences of “all mothers in prison on 10 May 1994, with minor children under the age of twelve years.” John Hugo was a prisoner with an eleven-year-old son, who would have qualified for remission of sentence if he had been a woman. He challenged the Act on the grounds of gender discrimination in violation of Section 8 of the South African Constitution. The local division court ruled for Hugo, directing President Mandela to amend his order to make it consistent with the Constitution. On appeal, the Constitutional Court was asked to consider whether it had jurisdiction over acts of presidential prerogative, such as the right to remit sentences, and if so to decide whether the presidential act was consistent with the Constitution.
In considering the issue of jurisdiction, Judge Goldstone’s majority opinion admitted that “traditionally the exercise or prerogative powers of a monarch have not been subject to judicial scrutiny” (¶ 16). He went on to note a recent trend in favor of judicial review of prerogative decisions, giving particular attention to English precedent in favor of judicial oversight, which argued that “the powers of the court cannot be ousted merely by invoking the word ‘prerogative.’ The question is simply whether the nature and subject matter of the decision is amenable to the judicial process” (at ¶ 18).
The Constitutional Court concluded that the Constitution not only allowed but required judicial review of acts of executive prerogative. Goldstone wrote,
The interim constitution obliges us to test impugned action by any organ of state against the discipline of the interim Constitution. . . . That is the fundamental incidence of the constitutional state which is envisioned by the Preamble to the interim Constitution. . . . In my view it would be contrary to that promise if the exercise of presidential power is above the interim constitution and is not subject to the discipline of the Bill of Rights. (at ¶ 28)
In his concurrence, Judge Kriegler added that “the president, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands” (at ¶ 65). In order to ensure constitutional accountability, the Court declared that its power reached every aspect of executive prerogative. In coming to this conclusion, the Court adopted a review power broader than that available to judges in any other democracy.
Having established that presidential acts could be reviewed by the Court, the majority then turned to the issue of whether Mandela’s decree had violated Hugo’s Section 8 right against gender discrimination. The Court sided with Hugo, holding that the Act constituted prima facia discrimination “on a combined basis, sex coupled with parenthood of children below the age of twelve” (at ¶ 33). The Court then ruled that once discrimination has been established, the Constitution puts the burden on the executive to prove the reasonableness of the discrimination. Rejecting a less demanding standard adopted by a lower court, Goldstone held that a lack of discriminatory intent would not be enough to save the act if it was found to constitute “unfair discrimination.” All this presents a significant challenge to executive authority.
Consistent with an expectation of strategic activism, after declaring their right to oversee the executive and evaluate his motives, the Court upheld the act as reasonable. Despite expressing concern that the President’s choice was based on a gender stereotype that often worked to women’s disadvantage, the Court held that the Act passed muster under Section 8. The majority expressed concern that if the Court required a gender-blind release of inmates, the President would find the costs too high to release anyone, resulting in a situation in which the goal of increasing care of prisoners’ children would be wholly frustrated. On this basis, the Court held that the President’s rather blunt use of gender stereotypes did not violate the prohibition against unfair discrimination.
One might argue that the outcome in this case is merely a reflection of the judges’ preferences—that the logic the judges resorted to is no more than window dressing for their personal support for Mandela (who appears to have the respect of the Court) or a view that Hugo and inmates like him should be in jail. Advocates of the attitudinal model would be most likely to put that spin on the case. However, if the case outcome was most important to the judges, they had a number of easier approaches available. They could have dismissed the case as moot, resulting in the same outcome. Or the Court could have declined to extend its jurisdiction to acts of presidential prerogative either for presidential pardons or as a whole. This would also have achieved the same outcome for the litigant, and it would have had the added benefit of supporting Mandela’s executive authority.
Instead, the Court chose the path of strategic activism. The decision laid down a broad claim of judicial authority to review acts of presidential prerogative that was more extensive than that of courts in other democracies (who recognize some categories of prerogative as forbidden ground). After asserting this power, the majority attempted to make it more palatable to potential opponents by using that authority to reinforce the president’s position in the instant case. Therefore, while the outcome of the case appears to be a victory for presidential power, the doctrine established supports judicial oversight in the future. Policy makers who dislike judicial authority are left with no policy incentive to object or any practical way to resist, just as the Canadian Parliament had no incentive to override Valin, the Canadian cabinet had no practical way to undermine Operation Dismantle, and Jefferson could not undo Marbury.
The similarity of strategic activism in such different places and times is remarkable. This should encourage judicial scholars to become more comparative. As Hall and Brace argue, “To achieve the primary scientific goal of developing general theory that takes into account the complete range of forces affecting the politics of courts, comparative analysis is essential” (1999, 282). Cross-national studies allow scholars to select cases based on theoretically interesting similarities and differences to provide greater leverage on persistent questions in the field. Future research is likely to be most beneficial if it systematically varies the institutional setting, paying particular attention to the factors that increase or mitigate risk for high court judges.
This study also demonstrates that a complete picture of judicial behavior must include the opinions judges write, not just the direction of their votes. The votes in these cases suggested deference to other policy makers, but the opinions told a much more activist story. The most important details were contained in the opinions. Judges craft opinions to guide future judges and the officials who are charged with implementing court decisions. Ignoring the opinions therefore not only “misses the law” (Tiller and Cross 2006, 517) but ignores the key details of legal policies that judges make. Analyzing opinions is crucial if we are to identify strategic activism.
The evidence in this chapter shows that judges can be strategic institution builders. Judges in the US, Canada, and South Africa all employed sophisticated tactics when the acceptance of judicial authority was uncertain. Rather than engaging in open conflict with other policy makers or fully acquiescing in their policy choices, judges in all three countries pursued a middle road. Sometimes, as in Marbury, they sacrificed their policy preferences to further institutional ends. At other times, as in Hugo, they seem to use cases in which they essentially agreed with challenged policies to further the cause of greater judicial power. By asserting their decision-making authority and then using it to validate the choices of other policy makers, they found a way to stake a claim to judicial power without facing political counterattacks. By establishing precedent on which later judges could build, they laid a strategic foundation for judicial power.
Judges in the US, Canada, and South Africa have been successful in institutionalizing judicial power. The cases discussed here demonstrate a degree of success that may be emulated by other courts. Constitutional courts in Germany and Israel as well as the European Union have been relatively successful in using similar tactics. Other judges may make all manner of strategic calculations but still fail to achieve much respect. Short-term policy sacrifices may not result in long-term institutional gains—judges can lose despite their best strategic efforts. Such failure is not by itself proof that judges have not pursued institutional goals. It must be remembered that the concept of strategic activism is offered as a way to predict judicial behavior, not the reactions of others to that behavior. We should expect judges to act in ways that are designed to protect their institutional position, but we should also recognize that they may not succeed.
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Comparative political science searches for patterns of political behavior that are present in different contexts, but it also takes into account the way that rules and behavior vary across nations.
In the chapter you’ve just read, you learned that judges in three different places and times used a similar strategy when claiming the power of judicial review. Judicial review is often considered the most important power a court can have, since it gives judges a constitutional veto over other policy makers. However, judicial review is only one of a series of powers that a constitutional court may have that allows that court to have a major political impact.
Below there is a list of powers exercised by courts in some constitutional democracies but not in others. Choose one country that is considered a constitutional democracy. For that country, find out which of the powers listed below can be exercised by that constitutional court and describe them in the appropriate box. Then make a note of which powers on the list belong to the US Supreme Court and which ones do not.
|Power||Country of choice||US Supreme Court|
|To certify the acceptability of the Constitution|
|To approve or disallow constitutional amendments|
|To issue advisory opinions to other policy makers|
|To decide cases that raise constitutional claims|
|To decide cases that raise regular legal claims as well as constitutional claims|
|To choose to hear some cases and decline to hear others|
|To originate a case, rather than having to wait for others to bring the case to the court|
|Separation of powers|
|To review the legality of laws before they are passed by the legislature|
|To review the legality of laws after they are passed by the legislature|
|To review acts of the president or other executive officials|
|To review the implementation of policies by administrative agencies|
|To enforce the balance of federal power (between the national and provincial or state governments)|
|To review and decide on the impeachment of government officials|
|To review and decide on corruption charges against government officials|
|To decide whether political parties are allowed to compete in elections|
|To review the conduct of elections and/or certify election results|
|To provide the official interpretation for the meaning of laws and regulations|
|To stop the enforcement of laws and/or regulations|
|To order other policy makers to rewrite laws and/or regulations|
|To rewrite laws and/or regulations directly (sometimes known as “reading in”)|
- A wide range of factors influence judicial behavior. Judges may strive to contain their workload, develop a positive professional reputation, and cultivate positive relations with colleagues, to name but three possibilities. For a fuller discussion of a variety of judicial motivations, see Baum (1997, chap. 2). ↵
- Rosenberg (2008) stresses the ways in which courts depend on other branches for policy impact. Other policy makers typically possess a variety of means by which they can push back against judicial power, including the power to censure or impeach judges, to remove jurisdiction, or to override decisions through statutory or constitutional amendment. For example, see Shapiro (1981), Clark (2009), and Pacelle (2015). ↵
- In Ex Parte Milligan (1866), the Supreme Court overturned the arrest and conviction of a Southern sympathizer. Members of Congress viewed this as a direct threat to the larger Reconstruction program. The Court retreated in Ex Parte McCardle (1869), dismissing a similar complaint after Congress repealed its jurisdiction. For more on this case, see Epstein and Walker (1995). ↵
- Prior to 1937, the Supreme Court defined Congress’s power to regulate commerce very narrowly. Beginning with NLRB v. Jones and Laughlin Steel (1937), the Court became deferential to congressional power, broadening its concept of commerce to include activities affecting interstate commerce. For more on the Court and the New Deal, see Schwartz (1993) and O’Brien (2000). ↵
- After the Court protected one HUAC witness from contempt charges in Watkins v. US (1957), Congress began debating legislation designed to remove the Court’s jurisdiction over questions asked by congressional committees. As a result, the Court rejected similar arguments made by another witness in Barenblatt v. US (1959). For more on these cases, see Epstein and Knight (1998) and O’Brien (2000). ↵
- Hirschl (2000) argues that elites who are threatened with decreasing power have supported judicial review and the constitutionalization of rights in order to protect their political and economic position. ↵
- Nelson finds a related form of strategic behavior among the state supreme courts in the early United States. Rather than risking a backlash from asserting their power against popular policies, judges in the early American states tended “to invalidate legislation having little political significance and arousing little controversy” (1972, 1177). ↵
- Institutional position refers generally to a court’s political strength. A number of factors are relevant here, including a court’s popularity with the public, the perception of the public and other policy makers about the legitimacy of a court as a decision-maker, and the availability and public acceptance of court-curbing measures. Courts that experience ready compliance from other policy makers are in a much stronger institutional position than those that regularly face concerted opposition. ↵
- This may explain Nagel’s finding that court-curbing attempts were common in the early nineteenth-century US, when “the rule of the judicial branch of the government was not yet established and the obvious partisanship of some justices was a hindrance to the growth of the judicial myth” (1973, 19). ↵
- In Chisholm v. Georgia (1793), the Supreme Court ordered Georgia to pay its debts to a South Carolina merchant after deciding that federal courts could exercise jurisdiction in cases in which a state was sued by citizens of other states. Four years later, the adoption of the Eleventh Amendment barred federal courts from deciding cases brought against states by foreigners or citizens of other states. ↵
- The Jeffersonian Democrats in Congress had abolished the Court’s 1802 session. Judicial impeachments were a serious possibility. Jefferson and the Republicans were particularly concerned that the Court not assert authority to oversee executive power (Clinton 1994). ↵
- Marshall did take the opportunity to rail against Jefferson in the dicta of the opinion. ↵
- This claim seems even bolder given that the Constitution does not mention such power. ↵
- Jefferson argued that the Constitution required that each branch of the national government be independent of the others (see O’Fallon 1992, 243–44), which precludes the idea of judicial oversight of the executive through judicial review. ↵
- The case arose when two brothers were arrested for selling national lottery tickets in Virginia. They claimed Congress’s passage of a Grand National Lottery precluded their arrest. Virginia countered that the US Supreme Court lacked jurisdiction to take such appeals. For further discussion, see Graber (1995) and Schwartz (1993). ↵
- Goldstein (1997, 143–51) documents considerable state resistance to national power prior to the Civil War, including the controversy in Martin v. Hunter’s Lessee (1816), in which the Virginia Supreme Court claimed the authority to overrule a decision of the national Supreme Court. ↵
- This was fairly typical of the early Marshall Court, which ruled in the Jefferson administration’s favor “in every politically salient case decided between 1801 and 1805” (Graber 1998, 223). ↵
- For example, by 1825 Judge Gibson decried the fact that judges almost uniformly accepted Marshall’s arguments for judicial review and used them to support their own case rulings (see his dissent in Eakin v. Raub, reprinted in O’Brien 2000). ↵
- Appeals to the Privy Council continued until 1949. Russell (1987) reports that approximately half of the Privy Council’s Canadian cases were appealed directly, bypassing the Canadian Supreme Court. ↵
- The justices took temporary quarters in the Parliament building until 1882, when a renovated stable became home to the Court and the National Gallery of Art (McCormick and Greene 1990). ↵
- Justice Ritchie in Valin v. Langlois  Vol. 3 SCR at 9. ↵
- Justice Ritchie notes, for example, that “it is too clear that if they do not possess the legislative power, neither the exercise nor the continued exercise of a power not belonging to them could confer it or make their legislation binding” (at 22). Justice Henry stresses his willingness to disallow inappropriate acts of Parliament by noting that he is “gratified to witness the success that has been achieved in . . . the trial of election contests; but at the same time, would not give my sanction to an Act which is ultra vires” (at 70). ↵
- For example, Justice Fournier notes that the national government has “the most extensive powers over the courts in existence, namely those of repealing, abolishing or altering them” (in translation, at 57). In his opinion, Justice Taschereau (at 76) emphasizes the control Parliament has over court jurisdiction and then notes that “if the House of Commons, even now, chose to disobey a judgment of an election court, I do not see how the court could enforce its judgment” (at 80). ↵
- The Canadian Supreme Court was not considered particularly significant politically for much of its history. However, it did have a significant impact on the balance of federal and provincial power (e.g., see Hogg 1979; Russell 1985), the area over which it asserted review power in 1879. ↵
- The charter declares constitutional protection for rights to religion, expression, and association (Section 2); a series of defendants’ rights (Sections 7–11); and minority language rights (Sections 16–23). Section 15 guarantees equal protection of the law. Section 24(1) declares, “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” ↵
- The BNA and the 1970 Judges Act support judicial independence by granting judges tenure from appointment until age seventy-five, given good behavior. Justices may only be removed after nonpartisan judicial inquiry. For more on judicial independence in Canada, see McCormick and Greene (1990) and MacKay and Bauman (1985). ↵
- The Court has become more assertive over time. This may reflect the high rates of acceptance among policy makers that met the Court’s initial charter decisions. The fact that only Quebec initially used the override may have increased the justices’ confidence. Some of the Court’s later decisions have been assertive and politically controversial, such as its decision invalidating the country’s abortion law (R.v. Morgentaler 1988) or its decision to extend antidiscrimination laws to protect homosexuals (Vriend v. Alberta 1998). For more on the controversial nature of the expansion of judicial power in Canada, see Morton (1984) and Knopff and Morton (1992). ↵
- The protection of minority rights could come to be viewed as the protection of white privilege if the Court aggressively protects the right to property, which disproportionately benefits white elites. For more on this point, see Abel (1995) and Davis et al. (1995). Steytler suggests that similar tensions are present in other democratizing African countries, where “the judiciary, in protecting minority interests, cannot antagonize majoritarian interests unduly without undermining their own position” (1995, 506). ↵
- Gibson, Caldeira, and Baird (1998) speculate that courts build up their credibility over time by rendering decisions that please the public. The converse of this is that unpopular decisions may endanger their position and possibly even the position of the regime of which they are a part. ↵
- Section 8 reads, in part, (1) Every person shall have the right to equality before the law and to equal protection of the law. (2) No person shall be unfairly discriminated against, directly or indirectly . . . on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language. (3) (a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination. . . .(4) Prima facia proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established. ↵
- R. v. Home Secretary, ex parte Bentley . ↵
- In Kruger v. Minister of Correctional Services 1995 SA 803 (T), Judge Van Schalkwyk held that courts could not review the constitutionality of prerogative acts on equality grounds unless there was an allegation of bad faith by the president. The decision in Hugo subjects presidential actions to a higher burden because it considers effect as well as intent. ↵
- The Court also took into account the social benefits of executive acts of mercy and of controlling crime by keeping male criminals incarcerated. ↵
- Hugo’s son was already twelve when the case was filed, making him too old for Hugo to be eligible for release. In his dissent, Judge Didcott argued (at ¶ 55) that the Court should dismiss the case on that basis, as they had dismissed the case of JT Publishing v. Minister of Safety 1996 (12) BCLR 1599 (CCT) for the lack of a concrete controversy. ↵
- Courts in each of these political systems have become important policy makers. Each was strategically activist during expansionist periods, using cases in which they supported challenged policies to stake claims for expanded power (Smithey 1999). ↵