[Editor’s Note: This is Part V in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here and Part IV is available here.]
—Vicente F. Benítez-R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana
Constitutional courts are essential institutions in new democracies. It is almost impossible to find a democratic regime without a constitutional (or supreme) court in charge of judicial review of legislation. The expansion of constitutional courts across the globe, has led to a growing interest in analyzing their role as political actors. One of the main strands in this inquiry tries to answer the question relative to what factors enable or hinder the rise of a ‘successful’ or ‘strong’ constitutional court. In this context, it is usual to find analyses that examine typical examples of successful courts (such as the Colombian or Costa Rican courts), while some others frequently explore certain emblematic experiences of ‘weak or ‘failed’ instances of judicial review (this is the case of the courts of Venezuela and Hungary).
The doctoral research I am currently conducting seeks to evaluate whether the Colombian Constitutional Court is, indeed, a robust institution in matters related to the limitation of presidential powers, and aims to explain the factors behind its strength or weakness. It goes without saying that, to attain these goals, it is necessary to have a relatively clear and stable meaning of ‘judicial strength’. Nevertheless, it is interesting to notice how most of the academic literature in the field has paid just a peripheral attention to this issue, and assumes that there is a shared and implied (albeit nonexistent in my view) concept of judicial robustness. In this context, the paper I presented at the symposium is a first approach that attempts to propose a definition of a ‘strong’ court and tries to offer some tools to measure judicial strength. More specifically, the paper claims that judicial strength is composed by three elements: sincerity, compliance and effectiveness.
After a review of the literature, and in the framework of these tangential accounts, I found two main (but insufficient) approaches that aim to explain what a strong court is. First, some scholars claim that a powerful court has the capacity to intervene and impact the political arena (i.e., an active court). This is the case, for example, of decisions striking down constitutional amendments. However, the broad usage of the expression ‘impact’, in my view, might lead to the conclusion that any constitutional court could be labeled as ‘strong’, given that (a) endowing a court with the power of judicial review of legislation implies, in and of itself, the de jure possibility of influencing a given country’s political setting; and (b) some passive courts have exerted an enormous influence on the political dominion of their respective societies just by not deciding certain issues[1] or by deciding them in line with governmental interests.
A second thesis adopted by some other academics contends that a meaningful indicator of judicial strength is whether a court is able to deliver judicial decisions adverse to governmental interests, and whether these decisions are duly complied with. This idea’s rationale is that the real test for a court’s power emerges when it has to challenge powerful actors, while a decision upholding a governmental measure does not tell much about its strength. I have several doubts about this account, and I will address two of them. First, equating judicial strength with deciding against the government seems problematic. Not every decision quashing governmental measures is a sign of strength[2] and, correlatively, not every decision endorsing them entails weakness.[3] Secondly, this approach conceives of the government as a unified actor who would hold a coherent set of preferences, and ignores the influence of non-governmental actors such as international players, the media or public opinion, to name a few.
To tackle some of these problems, I argue that a strong constitutional court is the one that is sincere, obeyed and effective. Let me elaborate on each of these features.
Sincerity is a court’s capacity to freely put forward its own agenda −even against the preferences of external actors− in its decisions, regardless of whether they quash or endorse governmental acts. On the other hand, a weak court would resort to strategic decisions by which it relents to external pressures and sets aside its sincere stances. But a sincere decision would be pointless if it is not enforced and complied with, particularly by those whose preferences were not upheld in the court’s judgement. Therefore, a second feature is compliance. A court whose judgements are constantly defied, circumvented, or legally overridden, is a weak institution. Finally, effectiveness adds a normative ingredient to my definition. In some authoritarian regimes we can find cases of sincere and obeyed courts which are in the service of the incumbent ruler’s agenda.[4] Effectiveness prevents the categorization of these courts as robust institutions by assessing whether a court has, indeed, achieved the goals set by constitution-makers that justified its creation, goals that, in contemporary constitutions, usually embrace deep normative values such as the protection of human rights or the preservation of the rule of law.
The previous account could, arguably, be interpreted in the sense that the possibility of resorting to strategies is completely excluded for a strong court, as it is opposed to judicial sincerity. From this would follow, then, that my approach to judicial strength would promote the existence of suicidal or naïve (but sincere) courts that, in order to be regarded as robust tribunals, would be forced to decide in line to what they deem is fair, no matter how damaging or destructive their decisions may be. This is a fair point and, consequently, my paper also claims that in some exceptional events, strong courts can set aside their real preferences –using temporary, principled and contextually limited strategies– in order to deflect existential threats and to wait for a better time to pursue their sincere stances.[5]
This is a work in progress, so any comments would be appreciated. I want to thank Externado University of Colombia for organizing this enriching symposium.
Suggested Citation: Vicente F. Benítez-R., I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part V: Strong and Weak Courts: A Preliminary Approach to Judicial Strength, Int’l J. Const. L. Blog, Nov. 5, 2018, at: http://www.iconnectblog.com/2018/11/i-connect-symposium-contemporary-discussions-in-constitutional-law-part-v-strong-and-weak-courts-a-preliminary-approach-to-judicial-strength
[1] See, for instance, Sergio Verdugo, Birth and decay of the Chilean Constitutional Tribunal (1970–1973): The irony of a wrong electoral prediction, 15 Int’l J Const L. 469 (2017).
[2] Consider the case of a powerful ruler who wants to dismantle the constitutional checks enshrined in statutes passed by previous administrations, and who pushes the court to quash them. I believe it would be difficult to categorize this institution as a strong court.
[3] See Diana Kapiszewski & Matthew M. Taylor, Doing Courts Justice? Studying Judicial Politics in Latin America, 6 Perspect. Politics, 741, 743-44 (2008).
[4] This was, presumably, the situation in Chile under Pinochet. The Chilean Constitutional Court did not do anything to halt the human-rights abuses committed by the dictatorship due to, among other reasons, its apolitical, rightist and overly positivistic view. Cf. Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile 34-40 (2007).
[5] I follow, in this point, some of the interesting ideas advanced by Roni Mann, Non-ideal theory of constitutional adjudication, 7 Global Const. 14 (2018).
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