11.5 Judicial review in comparative perspective

Judicial review, a cornerstone of constitutional democracies, empowers courts to assess the legality of laws and government actions. This practice originated in the United States with Marbury v. Madison, establishing courts as the ultimate interpreters of constitutions.

Globally, judicial review varies in scope and implementation. Common law countries like Canada and Australia have embraced it, while civil law nations like Germany and France have established specialized constitutional courts. This diversity reflects differing constitutional frameworks and political traditions.

Origins of judicial review

• Judicial review is the power of courts to assess the constitutionality of laws and government actions, serving as a crucial check on legislative and executive branches
• The concept of judicial review has its roots in the idea of constitutional supremacy, where the constitution is considered the highest law of the land and any laws or actions that contradict it are deemed invalid
• The origins of judicial review can be traced back to the early days of the United States, with the landmark case of Marbury v. Madison (1803) establishing the principle in American jurisprudence

Judicial review in the United States

Marbury vs Madison

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• In Marbury v. Madison (1803), the U.S. Supreme Court, led by Chief Justice John Marshall, established the principle of judicial review in the United States
• The case arose from a dispute over the appointment of William Marbury as a justice of the peace in the District of Columbia, which was ultimately denied by the Secretary of State, James Madison
• The Court held that the Judiciary Act of 1789, which granted the Supreme Court original jurisdiction in this matter, was unconstitutional because it expanded the Court's jurisdiction beyond what was prescribed in Article III of the Constitution
• By asserting the power to declare an act of Congress unconstitutional, the Supreme Court established itself as the ultimate interpreter of the Constitution and the final arbiter of the constitutionality of laws and government actions

Scope of judicial review

• The scope of judicial review in the United States encompasses a wide range of legal issues, including the constitutionality of federal and state laws, executive orders, and government policies
• Courts can strike down laws or actions that violate constitutional provisions, such as the Bill of Rights, the Equal Protection Clause, or the Commerce Clause
• Judicial review also extends to the interpretation of constitutional rights and the balancing of individual rights against state interests (freedom of speech, privacy rights)

Limitations on judicial review

• Despite its broad scope, judicial review in the United States is subject to several limitations
• The doctrine of justiciability requires that courts only adjudicate actual cases or controversies, rather than issuing advisory opinions or deciding hypothetical disputes
• The political question doctrine holds that certain issues, such as foreign policy or the impeachment of public officials, are best left to the political branches and are not suitable for judicial review
• The principle of judicial restraint encourages courts to defer to the legislative and executive branches in matters of policy and to exercise caution when striking down laws or actions

Judicial review in other common law countries

Canada

• In Canada, the Constitution Act of 1982 and the Canadian Charter of Rights and Freedoms provide the basis for judicial review
• The Supreme Court of Canada has the power to invalidate federal and provincial laws that violate the Constitution or the Charter
• Notable cases include R v. Morgentaler (1988), which struck down Canada's abortion law, and Reference re Secession of Quebec (1998), which addressed the legal framework for Quebec's potential secession from Canada

Australia

• Australia's Constitution does not explicitly grant the power of judicial review, but the High Court of Australia has asserted this authority through its interpretation of the Constitution
• The High Court can invalidate federal and state laws that exceed the legislative powers granted by the Constitution or that violate implied constitutional rights (freedom of political communication)
• Significant cases include Australian Communist Party v Commonwealth (1951), which struck down a law banning the Communist Party, and Mabo v Queensland (No 2) (1992), which recognized native title rights of Indigenous Australians

United Kingdom

• The United Kingdom has traditionally operated under the principle of parliamentary sovereignty, which holds that Parliament has the ultimate authority to make or unmake any law
• However, the Human Rights Act 1998, which incorporated the European Convention on Human Rights into UK law, has given courts the power to issue declarations of incompatibility when laws conflict with Convention rights
• While these declarations do not invalidate the laws in question, they put pressure on Parliament to amend or repeal them to ensure compatibility with human rights standards
• The UK Supreme Court has also played a role in reviewing the legality of government actions, such as in the landmark Miller cases (2017 and 2019) concerning Brexit and the prorogation of Parliament

Judicial review in civil law countries

Germany

• Germany's Basic Law (Grundgesetz) explicitly grants the Federal Constitutional Court (Bundesverfassungsgericht) the power of judicial review
• The Constitutional Court can review the constitutionality of federal and state laws, as well as the actions of public authorities, to ensure they comply with the Basic Law
• Notable cases include the Lüth decision (1958), which established the doctrine of the indirect horizontal effect of constitutional rights, and the Maastricht Treaty case (1993), which addressed the relationship between German constitutional law and European Union law

France

• In France, the Constitutional Council (Conseil constitutionnel) is responsible for reviewing the constitutionality of laws before they are promulgated
• The Council can be asked to review laws by the President, the Prime Minister, the presidents of the National Assembly or the Senate, or by a group of 60 deputies or 60 senators
• Since the constitutional reform of 2008, individuals can also challenge the constitutionality of laws that infringe upon their rights through the mechanism of the priority preliminary ruling on the issue of constitutionality (question prioritaire de constitutionnalité or QPC)
• Landmark decisions include the Freedom of Association case (1971), which recognized the constitutional value of the Declaration of the Rights of Man and of the Citizen of 1789, and the Abortion Law case (1975), which upheld the constitutionality of France's abortion legislation

Italy

• In Italy, the Constitutional Court (Corte costituzionale) is tasked with reviewing the constitutionality of laws and resolving conflicts between the state and the regions
• The Court can be called upon to review laws by the national or regional governments, by judges during the course of litigation, or through direct appeals by individuals or groups
• Significant rulings include the Taricco case (2015), which addressed the primacy of EU law over national law in matters of VAT fraud, and the Ilva case (2013), which balanced environmental protection and public health concerns against the right to work in the context of a steel plant's operations

Controversies surrounding judicial review

Countermajoritarian difficulty

• The countermajoritarian difficulty refers to the tension between judicial review and democratic principles, as unelected judges have the power to overturn laws enacted by democratically elected legislatures
• Critics argue that judicial review can undermine the will of the majority and lead to a "government of judges" that subverts the democratic process
• Defenders of judicial review maintain that it is necessary to protect individual rights and prevent the tyranny of the majority, ensuring that all laws and government actions comply with the constitution

Judicial activism vs restraint

• Judicial activism and judicial restraint are two competing philosophies regarding the appropriate role of the judiciary in reviewing laws and government actions
• Judicial activism refers to a more expansive view of judicial power, where courts actively interpret the constitution and strike down laws or actions they deem unconstitutional, even if this means overturning precedent or challenging the other branches of government
• Judicial restraint, on the other hand, emphasizes deference to the legislative and executive branches, with courts exercising caution in striking down laws and generally adhering to precedent and original intent in interpreting the constitution
• The debate between activism and restraint often falls along ideological lines, with conservatives typically favoring restraint and liberals advocating for a more active judiciary in protecting rights and promoting social change

Politicization of the judiciary

• The politicization of the judiciary refers to the increasing influence of partisan politics on the appointment, confirmation, and decision-making of judges, particularly at the highest levels of the court system
• In many countries, the process of appointing judges has become more contentious and polarized, with political parties seeking to nominate judges who align with their ideological views
• This politicization can undermine public confidence in the impartiality and independence of the judiciary, as well as the legitimacy of judicial review
• Efforts to mitigate politicization include implementing merit-based appointment processes, establishing bipartisan nominating commissions, and instituting fixed terms or mandatory retirement ages for judges

Comparative analysis of judicial review

Differences in constitutional frameworks

• The scope and nature of judicial review vary significantly across countries, largely due to differences in their constitutional frameworks
• Some constitutions, like that of the United States, do not explicitly mention judicial review but have been interpreted to grant this power to the courts
• Other constitutions, such as Germany's Basic Law, explicitly provide for judicial review and establish specialized constitutional courts to exercise this authority
• The presence or absence of a written constitution, the level of detail in constitutional provisions, and the ease of amending the constitution can all impact the role and influence of judicial review in a given country

Variations in judicial appointment processes

• The methods by which judges are appointed to the highest courts can also shape the practice of judicial review
• In some countries, like the United States, judges are nominated by the executive branch and confirmed by the legislature, often leading to a more politicized appointment process
• Other countries, such as Germany and Italy, employ a more collaborative approach, with multiple branches of government or independent commissions involved in the selection of judges
• The use of fixed terms, mandatory retirement ages, or life tenure for judges can also influence the dynamics of judicial review, as judges with longer or more secure tenures may be more willing to challenge the other branches of government

Impact on separation of powers

• Judicial review can have a significant impact on the separation of powers within a country's political system
• By providing a check on the legislative and executive branches, judicial review helps to ensure that no single branch becomes too powerful or exceeds its constitutional authority
• However, the exercise of judicial review can also lead to tensions between the branches, particularly when courts strike down laws or actions that the other branches view as important or necessary
• The balance of power between the judiciary and the other branches can shift over time, depending on factors such as the composition of the courts, the political climate, and the nature of the cases being adjudicated

Judicial review and human rights protection

Interpreting constitutional rights

• One of the key functions of judicial review is interpreting and applying constitutional rights and freedoms
• Courts are often called upon to define the scope and meaning of rights such as freedom of speech, freedom of religion, due process, and equal protection under the law
• In interpreting these rights, courts may look to the text of the constitution, its underlying principles and values, historical context, and comparative law from other jurisdictions
• The doctrines and tests developed by courts to interpret constitutional rights (strict scrutiny, proportionality) can have a profound impact on the protection of individual liberties and the limits of government power

Balancing individual rights vs state interests

• In many cases involving constitutional rights, courts must balance the protection of individual liberties against the legitimate interests of the state
• This balancing act requires courts to weigh factors such as the importance of the right in question, the severity of the infringement, the government's justification for the limitation, and the availability of less restrictive alternatives
• Examples of cases involving such balancing include restrictions on free speech in the interest of national security or public order, limitations on religious practices to protect public health or safety, and the use of affirmative action policies to promote diversity and redress past discrimination
• The way in which courts strike this balance can vary significantly across countries and over time, reflecting different constitutional values and social contexts

Landmark human rights cases

• Judicial review has played a crucial role in protecting and advancing human rights through landmark court decisions
• In the United States, cases such as Brown v. Board of Education (1954), which struck down racial segregation in public schools, and Obergefell v. Hodges (2015), which recognized the right to same-sex marriage, have had a profound impact on equality and civil rights
• In South Africa, the Constitutional Court's ruling in Minister of Home Affairs v Fourie (2005) legalized same-sex marriage, making it the first country in Africa to do so
• In India, the Supreme Court's decision in Navtej Singh Johar v. Union of India (2018) decriminalized consensual same-sex relations, overturning a colonial-era law that had been in place for over 150 years
• These landmark cases demonstrate the power of judicial review in protecting the rights of marginalized groups and promoting social change, even in the face of political opposition or deeply entrenched societal norms

Judicial review and federalism

Division of powers between national and subnational governments

• In federal systems, where power is divided between a central government and regional or state governments, judicial review plays a critical role in delineating the boundaries of authority between these levels of government
• Courts are often called upon to interpret the constitution's division of powers and to resolve disputes over which level of government has jurisdiction over a particular issue
• This can involve questions of exclusive or concurrent powers, the doctrine of pre-emption (where federal law supersedes conflicting state law), and the principle of subsidiarity (which holds that decisions should be made at the lowest level of government possible)
• The way in which courts navigate these issues can have significant implications for the balance of power within a federal system and the ability of different levels of government to address local or regional concerns

Resolving conflicts between levels of government

• Judicial review is essential for resolving conflicts that arise between national and subnational governments in federal systems
• These conflicts can take many forms, such as disputes over the constitutionality of federal or state laws, disagreements over the allocation of resources or tax revenues, or competing claims of authority in areas like environmental regulation or immigration policy
• Courts must often balance the need for national uniformity and the protection of federal interests against the importance of preserving state autonomy and the ability of subnational governments to respond to local needs
• The resolution of these conflicts can have far-reaching consequences for the distribution of power within a federal system and the ability of different levels of government to pursue their policy objectives

Comparative examples of federalism and judicial review

• The role of judicial review in federal systems varies significantly across countries, reflecting different constitutional designs, political cultures, and historical experiences
• In the United States, the Supreme Court has played a central role in defining the boundaries of federal and state power, with landmark cases such as McCulloch v. Maryland (1819) and United States v. Lopez (1995) establishing key principles of federalism
• In Canada, the Supreme Court has been instrumental in interpreting the division of powers between the federal government and the provinces, as well as the constitutional status of Indigenous peoples and their treaty rights (Reference re Secession of Quebec, 1998)
• In Germany, the Federal Constitutional Court has been a crucial arbiter of conflicts between the federal government and the Länder (states), particularly in areas such as fiscal equalization and the implementation of EU law (Maastricht Treaty case, 1993)
• These comparative examples illustrate the diverse ways in which judicial review can shape the dynamics of federalism and the ongoing negotiation of power between national and subnational governments

Judicial review and the rule of law

Ensuring government accountability

• Judicial review is a key mechanism for ensuring that governments are accountable to the law and the constitution
• By providing a legal avenue for challenging the actions of public officials and institutions, judicial review helps to prevent abuses of power and to hold those in authority responsible for their decisions
• This accountability can take many forms, from striking down unconstitutional laws or executive orders to ordering the government to fulfill its constitutional obligations or to provide remedies for rights violations
• The effectiveness of judicial review in promoting government accountability depends on factors such as the independence of the judiciary, the accessibility of the courts, and the willingness of judges to exercise their powers in the face of political pressure

Maintaining checks and balances

• Judicial review is an essential component of the system of checks and balances that characterizes many constitutional democracies
• By providing a check on the legislative and executive branches, judicial review helps to prevent the concentration of power in any one branch and to ensure that each branch operates within its constitutional limits
• This role is particularly important in times of political polarization or crisis, when the temptation for one branch to overreach or to disregard constitutional constraints may be heightened
• The ability of courts to maintain checks and balances depends on their institutional strength, their legitimacy in the eyes of the public, and the support they receive from other actors in the political system

Upholding constitutional supremacy

• Judicial review is premised on the idea of constitutional supremacy – the principle that the constitution is the highest law of the land and that all other laws and government actions must conform to its requirements
• By enforcing the constitution's provisions and striking down laws or actions that violate it, courts help to maintain the integrity and coherence of the constitutional order
• This role is particularly important in countries with written constitutions, where the text of the constitution serves as a foundational document that structures the political system and guarantees certain rights and freedoms
• The effectiveness of judicial review in upholding constitutional supremacy depends on the clarity and specificity of constitutional provisions, the degree of consensus around the constitution's meaning, and the willingness of political actors to accept the court's interpretations

Future of judicial review in comparative perspective

Challenges to judicial independence

• One of the main challenges facing judicial review in many countries is the threat to judicial independence posed by political interference or pressure
• This can take many forms, from attempts by the executive or legislative branches to control the appointment or removal of judges to more subtle forms of influence such as budget cuts or media campaigns against the judiciary
• In some cases, governments have sought to limit the jurisdiction or powers of courts, or to override their decisions through constitutional amendments or other legal means
• Maintaining judicial independence requires a combination of institutional safeguards (such as secure tenure and adequate funding), professional norms and ethics, and public support for the role of the judiciary in upholding the rule of law

Emerging trends in constitutional adjudication

• The practice of judicial review is constantly evolving in response to new legal, political, and social challenges
• One emerging trend is the increasing use of comparative and international law by courts in interpreting constitutional provisions and protecting human rights
• Another trend is the growth of specialized constitutional courts or chambers, which are designed to focus exclusively on constitutional matters and to develop expertise in this area
• There is