When a constitutional court faces opposition from other branches of government or significant segments of the public, should it always hold fast to what it considers constitutionally right, even where this would potentially harm its status and perceived legitimacy? Or are constitutional compromises sometimes justified? Such ‘institutionally hard’ cases – those characterised by a sharp tension between constitutional principle and institutional prudence – pose a true dilemma for constitutionalism. This article advances a realistic, yet principled, liberal-constitutional approach to this dilemma, put forth in the vein of Rawlsian non-ideal theory. It addresses a troubling gap between, on the one hand, the idealising discourse of constitutional theory – which overlooks or downplays the actual social and political pressures that courts must confront – and, on the other, a growing political science literature which, in the name of ‘realism’, views judges solely as strategic actors, leaving no role for principled reasoning. What has stepped into the gap in normative theory is a vague notion of ‘judicial statesmanship’, which praises or criticises judges post hoc, on an intuitive basis, without any tangible prescriptive bite. Developing evaluative and prescriptive guidelines for institutionally-hard cases, a non-ideal theory of constitutional adjudication should construct principles that both reinforce the commitment to ideal constitutional principle, and properly situate constitutional courts within the real – contingent and often very non-ideal – social and political contexts in which they operate.
1 Judgment of May 16, 1995, 93 BVerfGE 1 (‘Crucifix’).
2 Art 4 Abs. 1 GG, further supported by art 140 (in turn incorporating art 136(4) of the Weimar Constitution). This does not mean that a principled argument the other way could not be worked out. Indeed, the dissenters made a ‘positive freedom of religion’ argument.
3 Vanberg attributes this statement to an unnamed justice of the Federal Constitutional Court, and describes at length the ‘storm of public protest’ that followed the decision; Vanberg, G, Politics of Constitutional Review in Germany (CUP, Cambridge, 2005) 3 . For an extensive account of the Crucifix decision and its social and political context, see Caldwell, P, ‘The Crucifix and German Constitutional Culture’ (1996) 11() Cultural Anthropology 2, 259.
4 Grimm, D, ‘Unter dem Gesetz: Warum ein Richterspruch Respekt genießt’ (Under law: Why a judicial ruling deserves respect) Frankfurter Allgemeine Zeitung (18 August 1995) 29.
5 See below pp 43–45.
6 ‘Right’ in what sense? Discussed below (n 68).
7 Bickel, A, ‘Forward: The Passive Virtues’ (1961) 75 Harvard Law Review 40, later incorporated into the more famous book The Least Dangerous Branch (Yale University Press, New Haven, CT, 1986) .
8 Obergefell v Hodges , 576 U.S. _____ (2015) (‘Obergefell’).
9 Both the legal developments and the broader cultural shifts are described at length in the majority opinion in Obergefell, ibid 7–10.
10 See, e.g., Cole, D, ‘A Surprise from the Court on Gay Marriage’ New York Review of Books (6 October 2014) available at <http://www.nybooks.com/daily/2014/10/06/no-news-good-news-gay-marriage/>.
11 At the time, even criminal anti-sodomy laws were still deemed constitutional in the United States. See Bowers v Hardwick, 478 U.S. 186 (1986), later repealed by Lawrence v Texas, 539 U.S. 558 (2003).
12 Posner, RA, ‘Should There Be Homosexual Marriage? Is (sic) So, Who Should Decide?’ review of The Case for Same-Sex Marriage by WN Eskridge, (1997) 95 Michigan Law Review 1578, 1585.
13 This was a central concern of the LGBT movement. See ACLU et al., ‘Make Change, Not Lawsuits’ Joint Advisory of May 2009, available at <https://www.aclu.org/make-change-not-lawsuits-joint-advisory>, which sets out a legal strategy of postponing federal litigation. See also Becker, J, Forcing the Spring: Inside the Fight for Marriage Equality (Penguin, New York, NY, 2014) ch 3.
14 See Hirschl, R, ‘The Realist Turn in Comparative Constitutional Politics’ (2009) 62(4) Political Research Quarterly 825.
15 The ‘realist’ scholarship that Hirschl describes is not restricted to the claim that judges strategise but, rather, to the broader charge that ‘constitutional courts and judges themselves may speak the language of legal doctrine, but their actual decision-making patterns reflect ideological preferences and attitudinal tilts, as well as strategic considerations vis-à-vis their political surroundings’. Ibid 826. For our purposes, it is specifically the notion of strategy that is the most relevant. See Epstein, L and Knight, J, ‘Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead’ (2000) 53(3) Political Research Quarterly 625.
16 To be sure, some constitutional scholarship does not sit comfortably within the framework of these three contending approaches, which are set out here in sharp relief for sake of clear analysis and argument. In particular, many constitutional scholars speak of courts’ ‘strategy’ in looser, less technical terms, seemingly splitting the difference between ideal theory and the rational-choice notion of judicial strategy. At least some of the scholarship in this vein may be seen to inch toward the ‘non-ideal’ direction proposed in this article. See below (n 41).
17 Beyond Roosevelt’s famous court-packing plan, majoritarian pressures on courts are as globally ubiquitous as the spread of constitutionalism itself, and range from tinkering with judicial appointments, through non-compliance, to wholesale constitutional coups. For the multiple kinds of political backlash against constitutional courts, and a review of numerous and worrisome cases worldwide, see Hirschl, R, ‘The Judicialization of Mega-Politics and the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 93, 109–12. Especially pressing in the EU context are the populist attacks on the courts in Hungary and Poland. For Hungary, see Lane Scheppele, K, ‘Constitutional Coups and Judicial Review’ (2014) 23 Transnational Law and Contemporary Problems 51 . For Poland, see T Tadeusz Koncewicz, ‘Polish Judiciary and the Constitutional Fidelity: ‘‘In Judges We Trust?’’’ (2017) XLIII Nowa Kodyfikacja Prawa Karnego 216. See generally Müller, J-W, ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ (2015) 21 European Law Journal 141 .
18 While many statements against judicial ‘activism’ have been made in Israel following Aharon Barak’s ‘constitutional revolution’ of the 1990s, these have more recently turned into concrete plans to weaken the role of the High Court of Justice in the political system. Members of the ruling Likud coalition have explicitly declared their intentions to effect constitutional reforms that would allow parliamentary (Knesset) override of Court rulings. See, e.g., ‘Netanyahu Says He Still ‘‘Aspires’’ to Pass anti-Supreme Court Bills’, Lis, J, Haaretz (27 April 27 2015) available at <https://www.haaretz.com/news/israel/.premium-1.653867>. For a review and normative analysis, see Association for Civil Rights in Israel, ‘Attacks on the Supreme Court and Its Role in Safeguarding Human Rights’, position paper of February 2012, available at: <https://acri.org.il/en/wp-content/uploads/2012/02/Attacking-Bagatz-English-LIB-FINAL.pdf>.
19 Uri Avneri et al. v The Knesset et al., Judgment of 15 April 2015, HCJ 5239/11 (‘Boycott’).
20 Law for Prevention of Damage to the State of Israel through Boycott (2011). The HCJ decision invalidated a section that provided for the imposition of punitive damages, but upheld the rest of the law’s provisions.
21 Ibid 30.
22 Ibid 23.
23 These normally take the form of op ed pieces. See, e.g., Gross, E, ‘Darush Beit-Mishpat Amitz’ (Wanted: brave court) Haaretz (6 August 2016). And note especially M Kremnitzer, ‘ha-Refisut shel Beit ha-Mishpat ha-‘Elyon’ (The High Court’s weakness), arguing that ‘especially in hard times, when its decision is likely to be unpopular, the Court is expected to manifest bravery and decide in a way that maximally protects human rights’ (my translation).
24 Rawls, J, The Law of Peoples (Harvard University Press, Cambridge, MA, 1999). See below (n 64) and accompanying text.
25 See above (n 19).
26 Indeed courts have been described as ‘Socratic’ in this regard, as they are likely to ‘offend the values and traditions of the community’ and should not be weary of it. See Kumm, M, ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’ (2010) 4 Law, Ethics & Human Rights 141, 141.
27 Discussed at length in Part IV below.
28 For a critical account of the process See Kumm, M, ‘Comment: Contesting the Management of Difference: Transnational Human Rights, Religion and the European Court of Human Rights’ Lautsi Decision’ in Raube, K and Sattler, A (eds), Difference and Democracy: Exploring Potentials in Europe and Beyond (Campus, Frankfurt, 2011) 245.
29 Lautsi v Italy (App No 30814/06).
30 See Hirschl’s quoted passage above (n 15).
31 This brackets, for the time being, comparative differences in the force of precedent.
32 At least insofar as it regards settlements in the Occupied Palestinian Territories (if not concerning the call to boycott Israel as such) – as was indeed the position of the dissent in Boycott.
33 Korematsu v United States, 323 U.S. 214 (1944) 246. State-of-emergency cases are perhaps the easiest ones to think of as institutionally-hard, but the scope of our concern is broader.
34 Epstein and Knight (n 15).
35 Hirschl (n 17) 113.
36 This is less true of less technical versions, considered briefly below (n 41).
37 Segal, JA, ‘Judicial Behavior’ in Whittington, K, Kelemen, RD and Caldeira, GA (eds), Oxford Handbook of Law and Politics (OUP, Oxford, 2008).
38 See Epstein and Knight (n 15).
40 Ibid, and see also Hirschl (n 27).
41 Note especially Vanberg (n 3); Roux, T, The Politics of Principle: The First South African Constitutional Court 1995–2005 (CUP, Cambridge, 2013) (attributing the success of the South African Court to how it handled tensions between ‘legal’ and ‘institutional’ requirements with intelligent departures from the ‘path of principle’); and Dothan, S, Reputation and Judicial Tactics: A Theory of National and International Courts (CUP, Cambridge, 2014) (focusing on the European Court of Human Rights and on the Israeli High Court of Justice, arguing that these courts strategise – in the technical sense – to build and spend reputational capital). Others talk about strategy in more critical and sociological terms. See, e.g., Shamir, R, ‘Landmark Cases and the Reproduction of Legitimacy: The Case of Israel’s High Court of Justice’ (1990) 24() Law & Society Review 781 (claiming that courts build legitimacy through landmark cases while subscribing, most of the time and almost automatically, to government policy). Eyal Benvenisti’s comparative constitutional work claims that the behaviour of national courts (specifically, by the sophisticated use of foreign and international law) is geared toward strengthening domestic democracies against the debilitating forces of globalisation; Benvenisti, E ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’ (2008) Tel Aviv University Law Faculty Papers, No. 59. As mentioned above, much of this wide and rich array of scholarship does not fit neatly within the contours of either ideal, or strategising or statesmanship approaches. Rather, it may be seen to provide intimations of a non-ideal approach, which the present work seeks to build upon.
42 See below pp 32–37 and 41–43, respectively.
43 See especially Vanberg (n 3) for a model of how the combined quest for ‘pubic support’ and ‘transparency’ drive the strategic behaviour of the German Federal Constitutional Court.
44 See Stone Sweet, A, Governing with Judges (OUP, Oxford, 2000) 27–8, for the point that this approach (considered there under the more basic notion of the ‘attitudinal’ model) ignores the possible normative force of legal reasoning (discussed there as a question of ‘autonomy’). Stone Sweet states that, in his own account of the rise of judicial power in Europe, the actual causal relation of legal norms to a judicial decision remains a ‘mystery’.
45 A defender of the ‘strategic’ model might deny that it claims to offer an accurate or even proximate description or explanation, and present it, rather, as a model with predictive qualities. But such strong predictive qualities are yet to be demonstrated.
46 Perhaps the most elaborate treatment in this vein is provided in Duncan Kennedy’s legal-theoretical work; see especially Kennedy, D, ‘Freedom and Constraint in Adjudication: A Critical Phenomenology’ (1986) 36() Journal of Legal Education 518 (conveying the experience of the judge who holds from the outset a clear favourable outcome: a ‘HIWTCO’, or ‘how-I-want-to-come-out’).
47 Ibid 548–51. Political scientists should be put on notice that it is decidedly not the position of critical legal scholars such as Duncan Kennedy that law is ‘radically indeterminate’ in the sense described above.
48 Some less technical – and, therefore, more plausible – accounts of ‘strategy’ do engage the normative question. See, e.g., Benvenisti (n 41), who endorses the behaviour that he identifies in the court, as supporting democracy. If this position were recast in terms of non-ideal theory, this would require the devising of principled parameters for what counts as properly supporting democracy where this conflicts with a principled decision.
49 See, e.g., Bander, EJ, ‘The Dred Scott Case and Judicial Statesmanship’ (1961) 6 Villanova Law Review 514 .
50 de Tocqueville, A, Democracy in America, vol. 1 (Barnes & Noble, New York, NY, 2003)  130.
51 Naval metaphors have a long pedigree in constitutional reflections. An additional example is Lord Macauley’s 1857 letter accusing the US Constitution of being ‘all sail and no anchor’, noted and rebuffed by R Dworkin, ‘The Moral Reading of the Constitution’ New York Review of Books (21 March 1996). Recall also the analogy of constitutional self-binding to Ulysses binding himself to the mast, going back to Spinoza and developed by Elster, J, Ulysses Unbound (CUP, Cambridge, 2000) (and earlier versions of that work).
52 See Horwitz, M, The Transformation of American Law 1870–1960: The Crisis of Legal Orthodoxy (OUP, Oxford, 1992). Horwitz borrows the term ‘grand-style’ from K Llewellyn, The Common Law Tradition (Little, Brown, Boston, MA, 1960), where the notion of ‘situation-sense’ bears close affinities with ‘statesmanship’ as considered here.
53 See above (n 4) and corresponding text.
54 See below pp 43–52.
55 Cole (n 10).
57 Bickel (n 7).
58 For a discussion situating Bickel in the context of a court dealing with difficult political circumstances, see Hübner Mendes, C, Constitutional Courts and Deliberative Democracy (OUP, Oxford, 2013). The praise of avoidance does not, of course, originate with Bickel. Note, e.g., Felix Frankfurter: ‘… the most fundamental principle of constitutional adjudication is not to face constitutional questions but to avoid them, if at all possible’; United States v Lovett, 328 U.S. 303 (1946) 320. Bickel himself relies on Justice Brandeis’ doctrine of avoidance in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936) 347. Dworkin (n 51) recounts Learned Hand’s similar approach.
59 It is worth remembering that Bickel wrote before the United Supreme Court became formally entitled to select the cases it would hear (as it would become under the Supreme Court Case Selection Act of 1988, 28 U.S.C. §1257).
60 See e.g. Mendes, Hübner (n 58), who writes of the court as a ‘tightrope walker … between prudence and courage’ 211–18. Thus, on the other end of courage we have prudence, not cowardice.
61 United States v Windsor (in which the Supreme Court struck down a provision of the federal Defense of Marriage Act for its discriminatory effect).
62 Cole, D, ‘Gay Marriage: A Careful Step Forward’ New York Review of Books (27 June 2013) available at <www.nybooks.com/daily/2013/06/27/gay-marriage-careful-step-forward/>.
64 Rawls (n 24). For an illuminating analysis and development of Rawls’ basic idea, see Simmons, AJ, ‘Ideal and Non-ideal Theory’ (2010) 38 Philosophy and Public Affairs 5 .
65 Ibid, 11–22. In The Law of Peoples, the principles pertain to international norms.
66 Ibid, 13, paraphrasing Rousseau.
67 Rawls (n 24) 89.
68 Note that this approach does not have to rely on a naïve formalism whereby judges simply ‘apply’ the constitution – according to the ‘plain’ and/or ‘original’ meaning of the text, along with that of precedent decisions – to ‘find’ the right answer in a given case. Rather, constitutional courts as better understood as engaging in the reasoned elaboration of constitutional principle through the medium of concrete cases – construing the broad and abstract provisions of constitutional text into the most persuasive larger principles that may be plausibly understood to animate them, and bringing these principles into coherence with each other, with the structure of the document as a whole, and with rule-of-law fidelity to decisions and practices of the past. Yet this more capacious understanding of constitutional reasoning does not mean that ‘anything goes’ and so on this account we still should be able to distinguish between what is constitutionally right (not in the sense of ‘one right answer’ from the text, but as ‘right’ per best undertaking of the foregoing enterprise, even if still subject to contestation) and what is institutionally wise or prudent.
69 Posner (n 12) 1586 (original emphasis).
70 See Hirschl (n 14).
71 Dworkin, R, ‘The Forum of Principle’ (1981) 56 NYU Law Review 469 .
72 Ibid, 517.
73 Ibid, 518, fn omitted.
74 See Habermas, J, The Theory of Communicative Action (Beacon, Boston, MA, 1984) .
75 Dworkin (n 71) 518.
76 Note that, in the first part of Bickel’s The Least Dangerous Branch (n 7), where he speaks not of the need for restraint but of the justification for the very institution of judicial review, he defends it against detractors on similar terms.
77 Asking that the court give an undiluted principled judgment does not have to mean that courts have the final say. Indeed, the court’s pronouncement could be one pole of an ongoing ‘dialogue’. See especially M Tushnet, ‘Dialogic Judicial Review’ (2008) 61 Arkansas Law Review 205 (focusing on the Canadian ‘notwithstanding’ clause, as the clearest example of what could be a broader framework for constitutional design). In other words, it is entirely plausible to give more weight to majoritarian institutions without undercutting the deliberative importance of clear principled judgments.
78 See above p 33.
79 2 BvR 392/07. I thank Mattias Kumm for this example.
80 Discussed above pp 24–25.
81 Ruth Bader Ginsburg’s remarkably long-held position is that the Court ‘ventured too far’ and its decision therefore backfired, as it ‘stimulated the mobilisation of a right-to-life movement and an attendant reaction in Congress and state legislatures; Bader Ginsburg, R, ‘Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade’ (1985) 63() North Carolina Law Review 375, 381. See also Cassens Weiss, D, ‘Justice Ginsburg: Roe v. Wade Decision Came Too Soon’ ABA Journal (13 February 2012) available at <http://www.abajournal.com/news/article/justice_ginsburg_roe_v._wade_decision_came_too_soon>.
82 See, e.g., Obergefell (n 8), where Justice Robert leans on Ginsburg (n 81) in support of his dissenting opinion.
83 I borrow these terms from Kumm (n 28) 257, who speaks in particular of what one may expect from the ECHR.
84 531 U.S. 98 (2000).
85 349 U.S. 294 (1955).
86 Mann, R and Hübner Mendes, C, ‘Worüber Richter schweigen: Strategie und Theorie in der Verfassungsgerichtsbarkeit’ (2014) 146 WZB Mitteilungen 40 .
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