I. Introducing the Special Issue
Constitutional judgesFootnote 1 are routinely called upon to adjudicate on concerns that the political process is leaving unresolved in one way or another, by ignoring minority interests or by failing to take into account urgent needs for action, or to step up when the democratic process itself is under attack.Footnote 2 Recently, these court functions have only gained in urgency, as politicians fail to meet the planetary existential challenge that is climate change and to deliver the sort of equality most citizens and residents envisage—equality of socioeconomic outcomes.Footnote 3 Responding to these political failures and structural limitations raises concerns about the constitutional boundaries of the judicial role.Footnote 4 On some accounts, responding robustly may breach those boundaries.Footnote 5 And yet, to fail to adapt to new challenges may also be an abdication of their ascribed function, and imperil the vitality of the rule of law and democracy.
The limits of the judicial role are inherently contested in theory and practice.Footnote 6 Some further view public contestation a central feature of good deliberative courts.Footnote 7 However, in the era of rising autocratization, where more people live under autocratic forms of government than liberal democracies,Footnote 8 judges face not only demand that they do more in order to deliver equality and preserve the planet, but also to safeguard the judicial function itself, its independence.Footnote 9 Contemporary forms of autocratic legalism demand new responses from judges.Footnote 10 As Scheppele has memorably put it, today’s autocrats “mix and match perfectly reasonable elements from different democratic governments to create a ‘Frankenstate,’” in which the individual elements may be found in normal democracies but their combination is monstrous.Footnote 11 However, responding to these demands may make courts even more vulnerable to attacks for overstepping the mark.Footnote 12
This Special Issue explores these three interlinked challenges for legal constitutionalism: persistent inequality, the climate crisis, and rising autocratization. They are faced by courts globally, albeit in different constellations. Of course, there are longstanding academic debates on how constitutional courts should address deeply political questions, involving distribution of power and resources. Constitutional courts have frequently been criticized for either doing too little or doing too muchFootnote 13 when they intervene into highly politicized questions. However, we felt that some debates about the limits of the judicial role had become blind alleys,Footnote 14 while the real challenges for judges and constitutionalism more generally required new thinking. Accordingly, the Special Issue aims to provide some new insights, by moving away from the more abstract level discussions on the relationship between legal constitutionalism and democracy to focus on the practice of constitutional judging and how judges actually respond under pressure.
Which strategies do constitutional courts deploy to address the mentioned challenges in their jurisprudence? How do they respond to the challenge of politicization and the expectation of deference in the face of calamity and deeply rooted problems, to an assault on their authority and legitimacy? Do they reshape their tools in the face of unprecedented changes or in order to bring corrosive structural harm within the purview of their jurisdiction, or do they make a point of sticking to well-known forms? Which doctrinal frameworks and which standard of review do they apply when addressing these challenges? Which registers do they use in their reasoning, how do they frame the issues, and what does this say about their way of managing their own legitimacy and authority? How do they communicate with the public and with the government outside of their pronouncements? How do they position themselves in relation to populist charges of aloofness or elitism? These questions extend well beyond the legal analysis proper and into the field of what can be called “judgecraft.”Footnote 15 They seek to probe the many ways in which constitutional courts and judges respond to fundamental, even existential challenges for legal constitutionalism.
We first discussed these questions at a symposium on February 9, 2024, marking Judge Susanne Baer’s return to academic life, after her twelve years on the German Constitutional Court, as well as her sixtieth birthday.Footnote 16 Seeking to look forward in light of her work as a judge and as a scholar,Footnote 17 we assembled both early-career and well-established scholars, including several former and sitting constitutional court judges, to share their insights into the challenges facing constitutional adjudication under pressure. The Articles in this Special Issue reflect that sharing of insights and the in-depth conversations that it engendered. They originate from a range of different constitutional systems and consider the practices in Canada, Germany—the central case for many of the contributors—India, Kenya, Mexico, Poland, the U.S., and South Africa. Regional courts also figure, predominantly the European Court of Human Rights, but also the Inter-American and African regional human rights courts. Several contributors engage with a range of judicial practices across many states. The keynote by Catharine MacKinnon provides a sweeping overview of the three challenges, and how judges should respond to them, entitled “Three Crises: Saving the World,” drawing on her pioneering scholarship on substantive equality.Footnote 18 Susanne Baer has offered the English translation of her Abschiedsrede (farewell speech) as the concluding contribution of the Special Issue, “To Listen and to Belong: A Personal Take on Constitutionalism at Work Today.”Footnote 19
The resultant collection offers diverse approaches and insights. Rather than delivering overarching theories, these insights underscore the significance of context—political, legal, social, and economic—when making sense of constitutional judging under pressure. A variety of theories, prescriptions, and suggestions are offered, through the prism of how our contributors process the realities that the triple challenge of inequalities, climate change, and autocratization present to the judicial function in constitutional societies.
II. Three Challenges for Constitutional Judges
The Articles in this Special Issue address the three interlinked challenges we identified, challenges that significantly exacerbate the existing tensions within constitutional systems about the judicial role: Persistent inequalities, the climate crisis, and rising autocracy.
A. Persistent Inequalities
A foundational insight informing the development of equality scholarship and jurisprudence is that even when formally discriminatory practices are prohibited, the law needs to tackle indirect or disparate impact discrimination, and engage tools to proactively addresses inequality. Decades of scholarship on substantive inequality and critical race theory has developed these insights.Footnote 20 Yet, inequality persists, including on the grounds that have long been the focus of legal reform, and of calls for more radical reforms—race and sex.
But the problem of inequality goes deeper. Socioeconomic inequality is arguably the main form of inequality that charaGcterizes sex and racial hierarchies. And yet, it is normalized within constitutional democracies, and constitutions rarely recognize poverty as a form or ground of discrimination.Footnote 21 Inequality persists through complex processes of social reproduction, which entail economic, spatial, and ideational dynamics.Footnote 22
Interpretation of constitutional and human rights equality guarantees is a site of constitutional contestation, where judges are invited to address forms of inequality that fall outside of established non-discrimination categories. It is a battle ground for negotiating the societal and political pressures on constitutional courts and in turn what is required from constitutional judges, who have a professional commitment to ensuring non-discrimination. That raises sensitive questions. Should constitutional courts go small in addressing inequalities and risk to be irrelevant for the many, or should they go big and face attacks from the economically and politically wealthy political elites? Do the answers to these questions need to be spelled out within the constitutions or can they be discovered through doctrinal renovations or by stepping openly into the world of constitutional politics?
B. The Climate Crisis
Similarly, climate change has been a major challenge for governments around the world. As it continues to accelerate, avoiding a planetary catastrophe will require ever stricter regulation of economic and private activity; but the short-termism of democracies has led to governments postponing action again and again,Footnote 23 while authoritarian governments have either denied climate change or declared themselves not responsible for action.Footnote 24
Courts globally have therefore been called upon by civil society organizations and communities—often as part of strategic litigation—to compel government into action, and to prevent major private polluters from continuing to emit carbon unchecked.Footnote 25 The Dutch Supreme Court and German Federal Constitutional Court adopted remarkable and constitutionally imaginative judgments following strategic litigation efforts, finding that neither of the governments took adequate action to mitigate their green house gas emissions.Footnote 26 The German Constitutional Court, in particular, foregrounded the rights of future generations in its way of constitutionalizing the climate crisis and held that the lack of ambitious action today infringes the rights of future generations under the German Constitution.Footnote 27 The Grand Chamber of the European Court of Human Rights has just decided three major cases on lack of ambitious climate targets in France, Switzerland, and Portugal and thirty-two Council of Europe member states and found a violation of the Convention only in the Swiss case, whereas it declared all other cases inadmissible on procedural grounds.Footnote 28 In the U.S., climate cases of children were also rejected on procedural grounds by the U.S. Supreme Court.Footnote 29
Courts have responded very differently to constitutional and rights-based climate litigation, raising profound questions about the role of judges between the demands of civil society and the impasse of politics and economic powers.Footnote 30 In addition, in cases where the constitutional courts have taken steps to read climate rights into the constitution, they have not received strong compliance from the political branches.Footnote 31
C. Resisting and Repairing after Autocracy
Autocracy is intrinsically an existential threat to constitutionalism and the rule of law, in that autocratic systems by design are against the separation of powers and constitutional limits.Footnote 32 Inevitably, an independent judiciary is the autocrat’s enemy.Footnote 33 However, the new autocratic legalism has a twist: It employs law and legal processes to undermine the rule of law and replace it with rule by law.Footnote 34 The insights into autocratic legalism and its workings globally are now well understood as a script that can be repeated in different regions of the world,Footnote 35 including in the U.S., most vividly since the re-election of President Trump—which postdates the finalization of these contributions. As Scheppele puts it in her Article, “Poland, Ecuador, South Africa, Brazil, Romania, Italy, Peru, Greece, Bolivia, France, the UK, the Philippines, and a growing number of others are all one bad election away from catastrophe or they are struggling to bounce back from an autocratic power grab.”Footnote 36
Autocratic decay includes many practices now broadly understood under the terms court-packing and court-curbing.Footnote 37 Against this backdrop, the question of how judges can and should act when these autocratic practices emerge is a pressing one,Footnote 38 as is the question of how to repair after autocracy, a live issue in particular in contemporary Poland. This is a delicate one because, as one of the contributors notes, “the judicial branch has turned out to be surprisingly weak once the struggle became real.”Footnote 39
D. Interaction and Intersection between Challenges
These challenges not only intensify the ordinary tensions of constitutional judging; they intersect and potentially exacerbate each other. For example, recent research argues that high levels of income inequality is a major driver for the rise of populist parties.Footnote 40 Attacks on constitutional courts are often framed in populist terms—the elite judges are protecting unpopular minorities, such as queer people or migrants, and progressive views like those on sex equality, against “the people.”Footnote 41 Populists and autocrats are also associated with various anti-science stances, including climate change denial.Footnote 42 But irrespective of these attacks, constitutional courts are called upon precisely due to perceived deficiencies of democratic decision, either to protect minorities or future generations, or even simply to inject long-term horizons into politics.
While the effects of climate change are global, they exacerbate existing inequalities both globally—in particular colonial legaciesFootnote 43—and locally. Some recent cases have sought to specifically address this phenomenon; for example, some cases brought before courts in the global North have involved plaintiffs from the global SouthFootnote 44 or vulnerable groups within societies.Footnote 45 However, addressing climate change may also be framed an elite cosmopolitan interest, pitting it against the economic interests of the poor.
The intersection and interactions between the three challenges are many and complex. Some contributors have explored them explicitly. Gabriel Britz’s premise, which informs climate change adjudication, is that:
In the long-term, democracy and freedom themselves will only continue to exist if climate protection becomes effective early enough. Otherwise, nothing would be left to decide in the future, and the sheer struggle for survival would dictate all political and individual decisions.Footnote 46
Others offer an overarching prescription. For instance, Catharine MacKinnon posits that:
Substantive inequalities, meaning structural collective dynamic social hierarchies of domination and subordination, within and between polities, characterize inequality as such, have challenged and continue to undermine democracy within nations and the international order, and have supercharged climate change and made it difficult to impossible to stop or reverse.Footnote 47
She understands substantive equality as a way for constitutional courts to “end social inequality and contribute powerfully to reversing democratic deficits, at least retarding democratic decay and climate catastrophes.”Footnote 48
III. Strategies for Constitutional Judging and Judicial Practice
The Articles in this Special Issue identify, analyze, and prescribe a set of judicial responses and strategies when judging under pressure. Some contributors reimagine and recalibrate the role of judges (A.), while others respond with doctrinal and theoretical innovation (B.). And yet, there is still a recognition of judicial constraints and institutional fragility (C.).
A. Reimagining and Recalibrating the Judicial Role
One way of reimagining the judicial role is putting the defense of the constitution against authoritarian aggrandizement at the center of judicial function. Kim Lane Scheppele, in her contribution, for example, suggests that judges should interpret individual rights to enable “democratic self-defense” against authoritarian encroachments.Footnote 49 Her contribution, entitled “Rights into Structures: Judging in a Time of Democratic Backsliding,” identifies how judges, in democratic self-defense mode, may transform rights intro structural guarantees, so that the individual litigant and individualized remedy translate into institutional commitments.Footnote 50 As she identifies, the European and Inter-American human rights courts have adopted this strategy in caselaw on judicial independence, neutral election administration, and term limits.Footnote 51 This can relieve members of disadvantaged groups from the burden of having to go to court individually as well, something that all too often depends on financial and other resources, especially in contexts of structural inequality. When it comes to judging after backsliding, as in Poland, Scheppele proposes the concept of “rule of law writ large” to enable the undoing of autocratic institutionalization to bring structures back in line with international standards, even when this undoing conflicts with domestic legality requirements (the “rule of law writ small”).Footnote 52
In matters of responding to climate change, courts have lately become a beacon of hope to those in despair at decades of democratic delay in the face of the imminent tipping point in the climate crisis.Footnote 53 As Gabriele Britz puts it in her contribution entitled “Overcoming Democratic Short-termism through Constitutional Law?—The Difficulty of Making the Constitutional Veto Work in Climate Protection Cases,” constitutional courts’ action is often premised on the acknowledgement that without climate action, democracy and freedom themselves will be imperiled.Footnote 54 Britz examines the potential and limits of climate judgments, demonstrating how constitutional courts can and should remedy the democratic short-termism that underlies political climate inaction.Footnote 55 Unlike the legislator, courts are by design insulated from the electoral cycle, and can adopt longer time perspectives.Footnote 56 In the best case, this can then be a catalyst for democratic action and help to overcome short-termist lethargy. Surveying developments in Germany, the European Court of Human Rights (ECtHR), the U.S., Norway, and Colombia, she urges that courts demand and review the political organs’ “comprehensive” approach to climate change, going beyond traditional approaches to judicial review.Footnote 57
Sarah Ganty’s “Poverty in Judgecraft: New Narratives through the Language of Equality” focuses on the role of judges as “metanarrators,”Footnote 58 and their attendant power to challenge myths and develop new empirically grounded “demosprudential”Footnote 59 narratives about poverty, through the language of non-discrimination and equality.Footnote 60 In particular, surveying case law from the U.S., India, Germany, and Canada and regional human rights courts and committees, she identifies the threads of a new narrative where the true nature of poverty—as multidimensional, historical, and structural—informs and improves adjudication. She argues that changing the narrative could open the way for judges to redress certain troubling situations of misrecognition, social exclusion, and inequality.Footnote 61 Ultimately, as long as myths about poverty prevail in law, especially in the courts, any attempt to tackle the issue of socioeconomic exclusion judicially is destined to fail.
Judges routinely calibrate their actions to preserve their perceived authority and legitimacy.Footnote 62 This poses a particular challenge when populists and autocrats accuse them of undermining the true “will of the people,” in particular when they are framed as being an unelected globalist elite.Footnote 63 We now have ample evidence that this strategy may undermine public trust in the judiciary.Footnote 64 David Kosař reviews this empirical evidence, seeking ways for courts to strengthen their “social embeddedness” in order to bolster their resilience against court-curbing efforts.Footnote 65 Mindful of the limited evidence base, and drawing on examples from across Europe, but also Canada and Colombia, he identifies a range of practices that appear to enable judges to maintain their integrity, whilst also making the rule of law more accessible and comprehensible: Developing the media and communication strategy of apex courts; proactive engagement with the precariat via “reaching out” activities such as social events and holding hearings outside the courts’ seats; avoiding controversial off-the-bench activities of judges in order to maintain the appearance of judicial integrity; and self-awareness and avoidance of structural judicial bias.Footnote 66 As he acknowledges, these strategies come with their own risks and limitations, not least because the answer to authoritarian populism surely does not lie in “populist judges.”Footnote 67
B. Doctrinal Innovation and Invigoration
In responding to the new challenges, courts may also need to innovate doctrinally.
Kim Lane Scheppele’s analysis of how human rights courts have been “converting the protection of rights into the requirements for constitutional structures” is a case in point.Footnote 68 This interpretative strategy may not only reinforce basic constitutional structures, but also protect the substantive rights autocrats often target, notably sex equality and protections for LGBTI people.Footnote 69 But of course, the usefulness of such approaches is limited once autocrats are ready to defy international judgments altogether.
More radically, concerning persistent inequalities, Shreya Atrey argues for a “radical reimagination” of equality law, in the form of a “Structural Turn.”Footnote 70 She starts from the insight that it can be the structure of equality law itself, with its focus on “grounds,” that can lead courts to miss “the core of racism or sexism—which is about structural injustice.”Footnote 71 Assessing caselaw from India, South Africa, and the U.S. demonstrates the failure of courts to grasp the structural harm underlying inequalities.Footnote 72 But she also identifies some dissenting opinions, even the odd majority decision, that point a way to recognizing the structural nature and historical roots of caste-based, race-based, and sex-based disadvantage and the way that affirmative action can help to redress this structural injustice.Footnote 73
Writing on “Practices of Social Constitutionalism” in the German context, Cara Röhner also argues for judges to reinterpret the constitutional guarantees of equality and dignity, informed by a “relational approach” along the lines of Nancy Fraser and Jennifer Nedelsky,Footnote 74 to strengthen the social dimension of constitutionalism.Footnote 75 Her contribution examines the German Federal Constitutional Court’s caselaw on the “existential minimum” for job-seekers, the working poor, and asylum-seekers; and family benefits for refugee parents.Footnote 76 She notes in particular the Court’s recognition of the group-based risks engaged when assessing the rights of asylum-seekers and refugees.Footnote 77 She argues for a further strengthening of these social rights, by focusing even more on the “social reality” of “socio-economic inequality, and its intersections with legal residence status and gender.”Footnote 78
Victoria Miyandazi examines “The Role of Kenyan Courts in Tackling Persistent Inequalities” when interpreting the equality clauses in the 2010 Kenyan Constitution, in a context she characterizes as a “hybrid,” with both democratic and autocratic elements.Footnote 79 She notes that in Kenya, the judiciary enjoy fairly high public legitimacy, in comparison with the political branches, but that this legitimacy depends on the public perception of judges as “fair, impartial, and apolitical defenders of democracy” and thus on “the way courts interpret their role as guardians of the Constitution and hold duty-bearers accountable for ensuring its proper implementation.”Footnote 80 At the same time, she acknowledges the constraints on courts, in particular institutional deference due to representative bodies, especially on polycentric issues.Footnote 81 Drawing on the work of James Gathii,Footnote 82 and Aileen Kavanagh’s vision of “collaborative constitutionalism,”Footnote 83 she provides a contextual critique of the caselaw and identifies additional strategies courts could use to advance equality within constitutional limits.Footnote 84
Doctrinal innovation is most prominent in the new field of climate litigation, where even courts themselves call out for “novel and creative remedies.”Footnote 85 In her keynote Article, Catharine MacKinnon proposes a right to “intergenerational equity” for children and future generations as one of the most promising constitutional litigation approaches,Footnote 86 citing the German Climate Decision and the Colombian case Demanda Generaciones Futuras as examples.Footnote 87 She cautions that shoehorning children into U.S.-style equal protection categories runs into lots of problems, not least the fact that “the more widespread an injury is, the less the Constitution can do about it.”Footnote 88 But she also does not see the principle of equity as a helpful, as it is “unmoored from most constitutional rubrics.”Footnote 89 Instead, she suggests that substantive equality—being “concrete, comparative, evidence-based”—offers everything that plaintiffs are looking for, along with the constitutional basis that equity is missing.Footnote 90 In that sense, it is not so much doctrinal innovation that constitutional courts need but a full understanding and principled application of the doctrinal tools that they already dispose of.Footnote 91 If this comes to fruition, MacKinnon outlines how substantive equality can help address not only climate change, but the interconnected nature of all three challenges, which her Article describes in vivid terms:
Our three topics, seen intersectionally, present the most urgent interconnected crises of our time. We know what we are facing and, from history and science, we know what acting to stop it requires. With substantive equality in constitutional adjudication, we have a tool for a chance—now, not later—to save people and peoples, who are already disastrously and painfully unequal; to save rule by the people, which is under widespread attack; and to save our precious planet—for itself, for ourselves, and for our children.Footnote 92
C. Judicial Constraints and Institutional Fragility
The limited capacity of litigation to achieve social change at the local, national, or global levels are explored throughout the Special Issue. Perhaps unsurprisingly, two of the contributors who are former judges focus on the challenges in rendering equality and climate justice effective.
Catherine O’Regan’s contribution “The Long Legacy of Apartheid Geography and the Reach of the South African Constitution’s Equality Clause” offers an insightful account of the failures of equality jurisprudence to tackle the persistent inequality of racial residential segregation, an apartheid legacy today “maintained by a complex intersection of social and economic factors” with severe consequences for inequality across in education, employment, income, health and life expectancy.Footnote 93 She examines the development of constitutional equality jurisprudence, and a case study of a decision of one of South Africa’s dedicated equality courts concerning allocation of policing resources to a poor and racially segregated neighborhood in Cape Town, Khayelitsha.Footnote 94 The litigation came after a committee of inquiry reported on the matter, a committee which O’Regan chaired.Footnote 95 Her sobering analysis explores the challenges to make equality effective, from gathering evidence on policing resources, to establishing discrimination when the context makes policing challenging, to fashioning effective remedies—which was not yet done in the particular case—to implementation.Footnote 96 Her conclusion is that these four difficulties render constitutional equality elusive, particularly when government policies or practices are embedded in long-established apartheid geography.Footnote 97
Gabriele Britz, in her contribution entitled “Overcoming Democratic Short-termism through Constitutional Law?”, points out these limits of their potential in a systematic manner.Footnote 98 Constitutional courts are most effective when exercising a veto, by striking down—or declaring incompatible with constitutional or human rights standards—government or legislative action.Footnote 99 They are much less able to effectively address government inaction. In the case of the German Federal Constitutional Court’s climate decision,Footnote 100 in which Britz participated as reporting judge, declaring unconstitutional a Climate Protection Act for making grossly insufficient provisions for future rights exercises that imply carbon emissions did not provide a better law, it continues to fall upon the legislator to decide how and where to impose decarbonization measures. And precisely because this is a political decision, constitutional rights will usually not be able to prevent individual carbon-intensive projects on the basis that those further contribute to climate change, because almost any human activity does, and it is for the political branches to determine how to distribute emission rights between different societal interests and groups.Footnote 101
In his contribution “Uncertainty and Tension in Constitutional Adjudication of Climate Mitigation,” Sam Bookman additionally cautions that “climate constitutionalism … finds itself jostling in a crowded space, competing with many other values, objectives, and priorities.”Footnote 102 The German context is a case in point, as the implementation of sufficiently ambitious climate targets will require significant government expenditure for things like retrofitting buildings, investment into rail infrastructure, or subsidizing green technologies, while the German constitution also significantly constrains such expenditure through the “debt brake,” to protect future generations form suffocating debt.Footnote 103 In the Canadian context, the vertical division of powers is a constitutional concern that can restrict a climate-ambitious central government, but also end up leaving important powers to the provinces in constellations where the central government may be less ambitious than the decentralized units.Footnote 104 In Mexico, where the Constitution contains an environmental right, judges have cited countervailing socio-economic rights and the government’s economic development to uphold an energy sector reform that undermined a green transition, before the reform was later struck down.Footnote 105 In light of the “polyvocality” of constitutions, he recommends that judges adopt a principled, context-sensitive approach to constitutional climate adjudication, balancing the urgency of climate action with the complexities of state capacity and constitutional structures.Footnote 106
Mariana Velasco-Rivera develops Steven Levitsky and Daniel Ziblatt’s work on the unwritten norms that undergird democracy, namely mutual toleration among political parties and institutional forbearance,Footnote 107 in her contribution “The Soft Guardrails of Legal Constitutionalism.”Footnote 108 She highlights that courts are especially vulnerable in constitutional democracies because their legitimacy and stability depends on the willingness of other actors to acknowledge their authority, both by bringing cases to courts and abiding by their decisions.Footnote 109 She offers three illustrative case studies of the norm institutional forbearance towards courts in action, an idealized account of forbearance to the judiciary displayed in the early years of post-apartheid South Africa; a more ambivalent example from the U.S.; and finally her central case of Mexico, where she charts the rapid demise of legal constitutionalism in recent years.Footnote 110 Her concluding reflections characterize the erosion of the soft guardrails as a crisis of public ethics, highlighting the shared public responsibility to come to the defense of the judiciary when attacked in a systemic misinformation campaign.Footnote 111 Without defenders amongst the citizenry in public life, the judiciary was defenseless.
The Special Issue concludes with Susanne Baer’s “To Listen and to Belong. A Personal Take on Constitutionalism at Work Today,” a wide-ranging personal reflection on the value of collegiality, mutual understanding, and the vital role of judging in constitutional democracies.Footnote 112 She emphasizes the importance of the German Federal Constitutional Court’s culture of deliberation, where all of the eight Justices in each of the two senates are committed to finding as much consensus as possible, and to explaining as much as possible their decisions to a wide and diverse audience.Footnote 113 In a compellingly personal reflection, she also stresses the essential value of a feeling of belonging to such an institution, as an outspoken lesbian feminist who had plenty of experience with being stigmatized, and who was questioned about her bias during the nomination procedure.Footnote 114 The two concepts, listening and belonging, are essential to each other, because courts “must be able to listen to all kinds of people, and this is much easier with many differently trained ears.”Footnote 115 This is why diversity on the bench, while often disparaged as a “woke” agenda, matters so much. Reversing the burden of proof, Baer ask “what difference it makes to an apex court if there are only people who have always seen themselves as ‘normal,’ or if there are also people who are seen as, or see themselves, as ‘the other.’”Footnote 116 If justice is also to be seen to be done, the diversity of society must be reflected also by its courts. Finally, she warns of the insidious potential of court-bashing in times of authoritarian backsliding.Footnote 117
IV. Conclusions
Judging is an old art; do we need to think about it radically or pragmatically? This Special Issue captures diverse voices and perspectives. For MacKinnon, the only way for constitutions to counter authoritarianism is to “come to grips with poverty, with concomitant social and economic class as a virulent form of inequality produced by the very economic democracy that capitalism purports to promote.”Footnote 118 For her, unless constitutional democracies “face economic inequality in all its gendered and racialized dimensions, democracy contains the seeds of its own destruction in this respect as well as others.”Footnote 119 Others are more mindful of the limits of judicial capacity and impact, the intractable nature of some inequalities, and the need to respect constitutional limits in order to ensure respect for the judiciary.
The Special Issue opens up a range of judicial practices for scrutiny, both on the bench and beyond. All of the contributions assume that judges should act on, and indeed further develop, empirically well-grounded accounts of the nature of structural and climate injustice. There are myths, lies, and misinformation that judges need to resist and root out. However, the normative resources of judges must also be deep. Many of the contributions defend a transformative role for the judiciary, especially in light of democratic shortcomings, such as short-termism. Relatedly, many of the equality cases surveyed concern the rights of asylum-seekers, refugees, and other migrants. In this context, the populist move to vilify the “other” and the structural exclusion of the non-citizen begets a toxic politics, a further constitutional challenge.Footnote 120 The content of constitutional jurisprudence—doctrine—emerges across the contributions as the epiphenomenon of legal contestation, argumentation, empirical evidence, and constitutional values and theory. This vision of judging is a challenge for legal educators, and suggests an approach to legal education that needs a much deeper foundation in the social sciences than traditional legal-doctrinal approaches provide, and much deeper philosophical engagement to understand the normative commitments of constitutionalism.
The Special Issue raises many issues for future scholarship. The question of access to justice emerges throughout, in need of further exploration. Recent empirical studies suggest it is key to public support for constitutionalism.Footnote 121 The question of remedies and implementation also recurs throughout, the ultimate fragility of judicial pronouncements. The need to tailor remedies that will catalyze the desired course of political action informs many of the contributions, and suggests further avenues for inquiry. The developments in the wake of the Klimaseniorinnen litigation offer a pathway to effective implementation, even when it depends on collective political action across states.Footnote 122
The Articles were finalized in late 2024, before the outcome of the November 2024 U.S. election was clear. We are finalizing this introduction in Spring 2025, when President Trump, only fifty days into his second term, already wielded Presidential power in a lawless and arbitrary fashion, far beyond anything seen previously in that context.Footnote 123 In Germany, the 2025 election saw the far-right Alternative for Germany (AfD) doubling its electoral share, its best result in nation-wide German elections yet.Footnote 124 The contributions generally acknowledge the courts can cajole and catalyze political change, but they cannot coerce it. Those who value the rule of law, democracy, their own citizens privileges, need to defend the constitutional values and institutions. As Susanne Baer reminds us:
If fundamental human rights are no longer effectively protected, some will suffer sooner, some later, but ultimately, we will all lose out. Constitutionalism is not only about ‘these minorities’; in a democracy that deserves the name, it is about everyone. The minority of constitutional law is the individual. You are included. That is why thousands took to the streets in Poland when the Constitutional Court was dismantled, just as tens of thousands took to the streets in Israel against an attempt to dismantle the Supreme Court there. I very much hope that you will also stand up for independent courts, and constitutionalism, against autocratic populists, and against resentment.Footnote 125
Acknowledgements
None.
Competing Interests
None.
Funding Statement
The Thyssen Foundation funded the Symposium underlying this Special Issue.
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