JUDICIAL POWER
Judicial power, the power to adjudicate disputes over application (and sometimes the very meaning) of the law, is the third main power of governments. The judicial branch is responsible for ensuring the rule of law and thus is critical for democracy. In this chapter, we shall see that the judiciaries of our thirty-one democracies vary in the extent to which they are charged with enforcing the law as written and/or serving as a check on the executive and legislative branches.
Discussing judicial power can become complicated, because unlike executives, where there is one central figure to discuss, or legislatures, where there is an obvious chamber (or chambers) to study, judicial power is diffused among a larger number of actors situated at multiple locations. This diffusion of actors is made even more complicated in federal systems in which there may be parallel judicial systems in operation. While our focus in this chapter is primarily systemic (for example, common law or code law) or at the peak institutional level (that is, supreme or constitutional courts), the conversation also ranges into lower levels of the judicial systems.
THE ROLE OF COURTS IN DEMOCRACIES
Before entering into a discussion of the institutional options open to constitutional planners regarding judicial power, let us consider for a moment the specific functions that courts perform in a democratic setting.
As a general proposition, courts perform a basic role as the institution of mediation between parties who have disputes over the law, whether that be a judgment over whether a given citizen has broken a criminal law or whether a particular civil law needs to be applied in a dispute between two citizens. Courts also have to perform an interpretative or at least clarifying role in the application of laws that may have policy implications (of course, the latitude for interpretation depends on the nature of the legal system, as we will see later). Beyond this concrete function courts perform key system functions in democratic states. To wit: maintenance of the rule of law (and, indeed, of the constitutional order) as well as an institutional means by which to help ensure minority protections.
A key concept in democratic states is the rule of law, the idea that the society is governed by a set of known rules that apply equally and fairly to all citizens. This is to be contrasted with systems in which rules are arbitrary and in which powerful actors can avoid following said rules. Further, in a democratic setting, the expectation is that the laws are made by a known, public, and predictable set of rules that define and constrain public action, and that this process is linked directly to elections. If we think back to figure 1.1, a basic assumption of democratic governance is that the rules created by the agents of the people would be put into practice. A judiciary that is sufficiently independent from other political actors, and that is respected by those actors (that is, will respect its rulings), helps ensure that the law does, in fact, rule. So while most discussions and analyses of democratic governance focus more heavily on the elected offices of the government, the role played by courts in preserving rule of law and protecting the basic political rights and processes enshrined in constitutions are vital for successful democratic governance. Indeed, the ability of courts to function in this way is seen as an important institutional milestone in the development of democracy.1
Courts also serve a specific and special function in constitutional systems, since they are often charged, at least at the highest levels, with interpreting the appropriate method of application, if not the very meaning, of the constitution. In most cases, the only means by which constitutional questions can be settled is via the courts, and democratic constitutions typically make provisions for such processes. Consider that constitutions are the highest laws in the land, and courts are charged with settling disputes over the law. As such, the highest courts in democratic cases are normally assigned the logical role of being the arbiter over issues concerning the meaning and application of the constitution. That role becomes especially salient when constitutions contain statements of fundamental rights, as most democratic constitutions do. Hence, courts that have the power to interpret and enforce such basic rights are essential guardians of the rights of the citizenry.
This role as constitutional arbiter can also have important implications for protecting the rights of citizens as individuals or as members of minority groups. A key example in US history would be Brown v. Board of Education (1954), which allowed for the application of the Fourteenth Amendment’s guarantee of equal protection under the law to desegregate public schools, despite substantial support for the policy of segregation.2 Such issues illustrate a key tension in democratic governance. On the one hand, democracy is government by the people, and in most cases we expect the majority (or sometimes the plurality) to rule. However, democracy also respects the rights and privileges of individuals. For example, free speech and free association are fundamental rights that are essential to democratic governance, and they cannot be subject to a majority vote. Hence, there is a need for parameters (for example, constitutional declarations of rights) and institutions (for example, courts) that can intervene to protect individual rights in the face of majority constraints on those rights.3
Some constitutions even allow for individual citizens to make direct appeals to courts based specifically on questions of individual claims of rights violations.
For example, the Polish constitution, in Article 79 states: “Everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Tribunal.” Other examples of specific examples of constitutions that cite the courts as having specific roles in protecting individual rights include, but are not limited to, those of Colombia and South Africa.
As such, courts are quite central to democratic governance, even if they are not directly chosen by elections and even though they are not directly responsible to the citizens. Of course, it is worth remembering that judges are selected and held accountable by democratically elected actors, although the exact processes vary from case to case, as we will see in the next section.
INSTITUTIONAL OPTIONS
If we start with the US framers, we find that of the three elements of government, judicial power was the one with which they spent the least amount of time debating and formulating. We can see this in a variety of ways, not the least of which being that Article III of the US Constitution is the briefest and least detailed of the three major articles that define the US government. Two other facts under score this point. First, the shape and scope of the federal court system beyond the Supreme Court was left to the Congress to define (see Article I, Section 8, Clause 9, and Article III, Section 1). Second, the most significant power of the Supreme Court of the United States, the power of judicial review, was not explicitly defined in the text of the Constitution itself, but rather was asserted by a court ruling in Marbury v. Madison (1803), although the Supremacy Clause in Article VI does provide some textual basis for the power.4 Indeed, in Federalist 78, Hamilton called the judicial branch “the weakest of the three departments of power” and the one that “will always be the least dangerous to the political rights of the Constitution.” However, he also noted in that same essay the vital need of a judicial branch that could protect the Constitution from an overreaching legislative branch.
Some basic nomenclature must be dealt with before a full discussion of courts can ensue. There are two basic types of courts, courts of original jurisdiction and courts of appeal. As the name suggests, courts of original jurisdiction are where trials begin (either criminal or civil cases). Appeals courts typically exist in the form of an intermediate level and a final court (or courts) of appeal. The highest courts of appeal are often called supreme courts (although sometimes those courts also have original jurisdiction in some types of cases). Court systems are further complicated in federal states, as there are usually parallel court systems that exist at the sub-unit and national levels.
The most important distinction between judicial systems is that between civil law and common law traditions, and that will be our starting point. As we shall see, some countries have borrowed from both traditions (with admixtures of traditional or customary law as well). Nonetheless, civil law, which derives from continental European notions about the role of the law and judges, is fundamentally different from the Anglo-American tradition of common law. Civil-law (also known as code law) systems have origins in Roman legal traditions and are oriented toward an administrative application of law to specific situations, as contrasted with the interpretative paradigm applied in the common-law tradition. In civil-law systems the laws are rigorously and systematically codified, and the job of the judge is to establish the facts of a given case to determine how that code should be applied in a given civil or criminal matter. In common-law systems the laws are not codified but rather are linked to specific statutes. In this system judges rely on established precedents (that is, what has been ruled on before on a given topic) and their own interpretative skills (and the higher the court, the more significant the role of interpretation).
Civil law is the more common type of legal system globally, with common-law systems being dominant in countries heavily influenced by English colonialism. Common law is based on the process of the establishment of precedence via the interpretation of laws by judges over time. The role and significance of the judge is enhanced under a common-law system because they are expected to try and figure out what the law means, rather than just applying it. It is worth noting, however, that some observers, such as Grossman and Epp, point out that the differences between these two types of law are becoming less stark: “Over the past century the two traditions increasingly have converged in practice. Legislation is now the source of much law in the common-law countries, and the principle of legislative supremacy is widely acknowledged if not always adhered to” (1995: 680).
A key question for the role of courts is whether or not they have the power of judicial review. Is the judiciary, or some organ within it, empowered to overturn acts of the national legislature, executive, or state governments on grounds that they do not conform to the constitution? The notion of judicial review is that the constitution, as the highest law of the land (and the locus, typically, of the basic rights of citizens) needs a privileged position from which to operate, and, therefore, the creation of a high court entrusted with this task may be necessary to make sure that the constitution is applied, even in the face of majorities that might have legislative priorities that might conflict with constitutional principles. In this way, the notion of constitutional rights and judicial review can be seen as contradicting majority will, but at the same time ensuring minority protections that are essential for democracy to function (such as freedom of the press and speech for unpopular ideas or freedom of religion). There is obviously also a strong logic against the notion of judicial review: Shouldn’t such vital decisions as the conformity of law to the constitution be made by the elected representatives of the people rather than by an appointed and frequently quite unrepresentative judicial body?
There are two basic types of judicial review, if we look at the concept comparatively: concrete and abstract.5 Concrete review takes place in the context of a dispute over the law once the law has been enacted and a case in controversy arises, while abstract review is the assessment of a law’s constitutionality before it is enacted. The US process is the quintessential example of concrete review, while countries that have more recently adopted judicial review, such as in post–World War II Europe, have established processes that allow for the review of laws prior to the their application. Interestingly, James Madison’s Virginia Plan (discussed in chapter 2) contained a model for abstract review, although it was not adopted. Madison’s draft envisioned an institution that would have been called the “Council of revision,” and it would have been empowered “to examine every act of the National Legislature before it shall operate” and veto it if it saw fit.6
There was an attempt, early in the history of the United States, to acquire advisory opinions from the Supreme Court, that is, advice from the Court to other segments of the government on their actions before actual dispute arose over the actions of government. The Washington administration requested that the Supreme Court provided advice on a list of matters in the summer of 1793, and Chief Justice John Jay responded by citing separation of powers as precluding such advice being provided to the executive from the judiciary. Underscoring that the Court viewed itself at the time as one that rendered only, in the language of our discussion here, concrete rulings, Jay informed the Washington administration that the Court was one of “last Resort.”7 In those democracies that have established judicial review, there is a divergence between those that combine the role of constitutional tribunal and of the highest appellate court into one body, usually called the “supreme court,” and those that divide these roles into separate institutions. A constitutional tribunal is an institution charged with enforcing the higher status of the constitution, relative to laws and other government acts. The appellate process is the ultimate resolution of all ordinary legal disputes, whether they involve the government or not and regardless of whether they raise constitutional controversies.
The concept of a separate constitutional tribunal arose first in civil-law countries, for the obvious reason that civil law does not traditionally see a role for judges to be charged with invalidating legislation. Indeed, the regular courts in civil-law systems are expressly not oriented toward interpretation, up to the highest levels of the court system. High (or supreme) courts in civil-law systems are often called, after the French model, courts of cassation. These courts exist to ensure that the laws are uniformly applied through the court system in conformity with the law as codified. Such a role does not allow for the ability to deal with constitutional issues and their interpretation, hence the need to create a special, and separate, high court to address those types of questions. An additional reason was that it offered the compromise of a kind of “limited” judicial review between the two logics for and against the basic principle of judicial review. In practice, however, separate constitutional courts have usually not accepted a limited view of their responsibilities and have been at least as assertive in applying judicial review as other supreme courts. Germany’s Federal Constitutional Court is a prime example of such a highly activist separate constitutional tribunal.
The first separate constitutional tribunal was created in Austria in the 1920s, and the idea subsequently spread to many other continental European countries. By the late twentieth century, new or revised constitutions in Latin America, ex-Communist Europe, and South Africa were among those developing separate constitutional tribunals. Separation of constitutional and appellate functions is unknown in common-law countries. Of course, some common-law countries do not have judicial review at all, but even those that do, always lodge the function in their supreme court.
Another institutional variation is whether a given country has separate or unified federal and subunit court systems. In a federal system, there are separate legal systems at both the national and state (or provincial) levels. In fact, as we discuss in chapter 4 on federalism, the very definition of a federal system is one in which there is some degree of sovereignty in separately elected subnational governments. The manifestation of this sovereignty is the capacity of the subnational governments to make their own laws, subject to constitutional review at the national level to ensure conformity to the accepted division of national and state responsibilities. In federal systems, the question of who reviews the conformity of state acts to the federal law and constitution is clear—it is the federal courts (including the constitutional tribunal, if there is one). However, the question of who adjudicates disputes regarding state law has been answered differently in different federations. Not all federal systems have this dual structure of subunit and national courts. For instance, in Canada, individual provinces have their own courts only for very limited legal jurisdictions. The most important legal cases arising from either provincial or federal law play out within provincial branches of the federal court system.
A final institutional factor is the question of how judges and justices should be appointed. The selection of judges and justices is closely related to their tenure in defining how “independent” the courts will be. For instance, if judges were appointed and dismissed at the whim by the executive, obviously we would not expect them to rule contrary to the executive’s wishes.
Georgakopoulos (2000) identifies two basic choices in terms of the method of appointing judges: career judges and recognition judges. Career systems function along a civil service model, wherein a person sets out to be trained for the bench and then has to pass examinations to qualify for the position. Once appointed to the bench the individual judge can work her or his way up through the ranks form trial courts to, potentially, the supreme court during a career. In recognition systems, the move to the bench is one done after being recognized for excellence or potential in another, likely legal, career. In such a system a person is nominated to serve on the bench likely by a political actor, such as a president, prime minister, or minister of justice, and if confirmed by whatever process exists in a given country, moves from an existing career to a new career as a judge. In such cases, formal training for the judiciary is not part of the process. Box 9.1 details the basic difference between the two systems.
A growing institutional trend, especially in career judicial systems (but not limited thereto) has been the development of judicial councils to oversee the operations of the courts, and often to function as appointment bodies.8 Garoupa and Ginsburg (2008: 21) identify the following “three important competences” of judicial councils:
1. housekeeping (budgets, material resources, operations);
2. appointment; and
3. performance evaluation (promotion, discipline, removal, and so on).
According to their study, this institutional innovation began to take off in the 1940s with a steady trend of inclusion in constitutions written since that time, and this trend exists across various geographical areas of the world (26–27). This general trend is true within the group of countries under examination in our study, with seventeen employing some version of this structure.9 Table 9.1 lists the countries and codes them for strength of the council in each case.
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BOX 9.1. CAREER VERSUS RECOGNITION JUDICIARIES
A career judiciary includes the following key features:
1. Judges are initially appointed to junior positions (for example, trial courts or assisting other judges).
2. Judges are promoted to senior positions based on performance (usually by review of bureaucratic, rather than political, bodies).
3. Tenure is not attached to a particular position but to the entire career.
4. Lateral transfers (from one court to another) are allowed.
5. Appointment and promotion are typically conducted by bureaucratic bodies and are less political (although not necessarily apolitical) in comparison to recognition systems.
A recognition judiciary contains the following key features:
1. Judges are selected after an initial career in another (likely legal) profession.
2. Judges are not usually promoted, and when they are, it is via a new political appointment (for example, from a district court to a court of appeals).
3. Tenure is attached to a specific appointment.
4. This general process tends to rely on other actors from elective portions of the government (for example, executives and legislators) and therefore tends to be more political.
Source: Adapted from Georgakopoulos 2000
. . .
Perhaps the closest to the ideal type of a career judiciary would be that of France, where aspiring judges attend schools dedicated to the topic and who then take specialized examinations in order to obtain jobs. Promotions to higher courts are achieved via positive performance evaluations, and all judges in France are trained at the École Nationale de la Magistrature.
While all judicial selection processes are influenced by politics, recognition systems tend to be more driven by partisan and ideological concerns than career systems, given that the main decision-making actors are elected politicians rather than technocrats.10 The United States is the quintessential recognition system, as the Constitution does not dictate any type of formal legal training for justices. Despite the lack of a formal process or review body, there has emerged a set of established norms and expectations. For example, while there are no formal qualifications to hold a position on the US Supreme Court, in recent decades there has been a high expectation that candidates would have significant appellate court experience or some other high-level legal background (such as being a legal scholar or serving in some significantly high level in terms of the Justice Department). There is also an assumption that the potential justices will have attended elite-level law schools. If we look back to the Warren Burger Court forward (Chief Justice Burger came to the bench in 1969), we find that twelve of sixteen justices have been federal appeals court judges and that ten have law degrees from Harvard or Yale (with two from Stanford and one from Northwestern). The derailment of President George W. Bush’s 2005 nomination of Harriet Miers is an instructive example, as she did not conform to these expectations.11
Table 9.1. Judicial councils in seventeen democracies, coded for roles/powers
Notes: The coding follows Garoupa and Ginsburg 2008: 37–39, and the key is as follows: 1 = administrative functions only; 2 = involvement in appointments; and 3 = roles in both appointment and discipline, removal or promotion of judges. The code for Argentina changed from 2 to 3 based on authors’ reading of the Argentine constitution. Additional coding beyond original work is as follows: for Germany (Federal Court of Justice 2010, and German Judiciary Act), Netherlands (Garoupa and Ginsburg 2011), South Africa (Du Bois 2006), Spain (World Bank 2001), and the United Kingdom (Malleson 2006, Paterson 2006, and Garoupa and Ginsburg 2011).
a These cases are relatively new. Brazil had a council of this type in the late 1970s during the authoritarian period, but it was done away with in the democratic constitution of 1988. A new council was created via a 2004 constitutional amendment. The Netherlands council was the result of a 2002 reform; and the United Kingdom council was created via the Constitutional Reform Act of 2005.
On the other hand, there is also a strand of thought in the United States that persons with a nonlegal background might be advantageous from time to time. Earl Warren, the chief justice from 1953 to 1969, had served as governor of California prior to his appointment to the bench by President Eisenhower, with his main judicial/legal experience being a stint as California’s attorney general. Of course, while such notions are bandied about from time to time (in 2010, for example, Senator Patrick Leahy, D-VT, opined on Meet the Press, “I wish we could have some more people outside the judicial monastery”), as noted earlier, they have not actually been put into practice for over half a century.12 Speculation concerning the possible nomination of nonjudicial politicians, such as former New York Governor Mario Cuomo and Senator/Secretary of State Hillary Clinton, illustrate this point.
THE US JUDICIAL SYSTEM IN COMPARATIVE PERSPECTIVE
Having examined the role of courts in democratic settings and having detailed the major options open to political engineers on this topic, we can turn to looking to the US court system in comparative perspective. The US judiciary is often seen as one of the strongest in the world, in that not only does it enforce laws passed by Congress, but it also is a constitutionally coequal branch that sometimes overturns a law on the grounds that it conflicts with the Constitution, which is higher than any ordinary law. In addition, given the federal structure of the US system, the judicial branch also regulates relations between the national and state governments, occasionally overturning acts of the latter that may exceed the authority of state governments.
1. A common-law system. The US legal tradition is rooted firmly in the common-law tradition that derives from England. Common law ascribes a greater role for the judge in shaping “the law,” understood not only as written statute texts, but also evolving precedents that stem from individual cases adjudicated in similar situations over time. Civil law, on the other hand, tends to see judges as part of the bureaucracy, administering the law and ensuring compliance with it. It thus places the judiciary in a more cooperative relationship with the executive branch than does common law.
The US legal system is unmistakably part of the common-law tradition, inherited from England. In the United States, however, with its separation of executive and legislative powers and its federal structure, the common-law notion of judges as independent of the executive extends even further, into a role as part of the system of checks and balances. Table 9.2 details the types of legal systems in each of our cases.
Of the thirty-one democracies under study, only five have common-law systems: Australia, Canada, New Zealand, the United Kingdom, and the United States. Not surprisingly these countries are all part of the Anglosphere. Three others have a mixture of common law in their legal systems: India, Israel, and South Africa—all of which experienced rule from London as well. It is worth noting that in both Canada and the United States, the parts of each federation that experienced significant French colonial influence, Quebec and Louisiana, respectively, have civil-law traditions.
Table 9.2. Legal system classification and presence of judicial review in thirty-one democracies
Notes: “Limited” means that review is available only to certain persons or entities or is restricted to certain aspects of a constitution (Maddex 2008: xxiv).
* United Kingdom: Judicial review applies only under terms of Human Rights Act of 1998.
a Acceptance of International Court of Justice jurisdiction, with reservations (source: ICJ, http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=1&p3=3).
b Composition of mixed systems: common/customary/Muslim (India), civil/common/Jewish/Muslim (Israel), civil/customary (Japan), civil/customary (Korea), civil/common (South Africa). In Canada, one province, Quebec, has a legal system based on French civil law. In the United States, one state, Louisiana, has a legal system with French civil-law traditions. The US territory of Puerto Rico has a mixed civil-/common-law system.
c Judicial review by a constitutional court or other body that is separate from a regular appellate-court system.
Sources: JuriGlobe (http://www.juriglobe.ca/eng/index.php); Maddex 2008.
The fact that the United States does have a common-law system is the foundation for the strength of its judiciary as a political actor.
2. Strong judicial review. The power to overturn legislation on constitutional grounds is a specifically American innovation, deriving from the landmark Marbury v. Madison decision by the US Supreme Court in 1803. The US Constitution nowhere specifically grants the Supreme Court the power to overturn legislation, but the Court asserted that such authority is implied in the text of the Constitution, in Article VI, where it states that the Constitution is the supreme law. If that is the case, reasoned the Court, then acts of Congress or other institutions established by the Constitution that conflict with the supreme law must be invalid. Numerous constitutions drafted in the nearly two centuries since Marbury v. Madison have explicitly incorporated judicial review, by establishing that a supreme court or other institution is responsible for ensuring that legislation be in conformity to the constitution.
The United States is hardly alone in terms of judicial review. If we consult table 9.2, we will see that twenty-six of thirty-one countries have some form of judicial review of legislation. Some countries have limited review, as there are constitutional or legal limits on what can be reviewed and by whom. The strongest strictures against judicial review can be found in the Netherlands, where it is expressly forbidden in Article 120 of their constitution, which directly states, “The constitutionality of Acts of Parliament and treaties shall not be reviewed by the courts.”
The United States does have the longest tradition of any of the cases under study, and the fact that it is a common-law system that allows for constitutional questions to figure into judicial reasoning in lower-court considerations makes the concept far more central to American politics than is possible in civil-law countries.
3. Concrete judicial review. Constitutional review in the United States is of the concrete variety only, with no abstract review being possible. This places the United States in a minority of our democracies, albeit a large one. Of the twenty-six cases that have judicial review, ten have concrete only, while fifteen have both abstract and concrete review. France is the most unique case, as it has only abstract review. This information is summarized in table 9.3.
4. A unified supreme court. In the United States, the Supreme Court functions as both the pinnacle of the appeals process and as the arbiter over constitutionality. In many other democracies, there is a body called the constitutional court, or other similar name, that is institutionally separate from the regular judiciary, as well as a supreme court. In these countries, the supreme court is the court of last resort on legal cases, except those that engage the question of constitutionality of the acts of some part of the government. The latter are decided finally by the constitutional court, which also may often hear cases that have not even arisen from within the judicial system.
The United States is hardly unique in having a unified Supreme Court, as this is the case in almost half of the countries under study. As noted earlier, civil-law systems can only engage in constitutional review via a separate court, so we see that institutional feature in those countries only.
5. A separate subunit court system. In the US federal system, each state has its own distinct state judicial system, with its own trial courts, appellate courts, and a court of last resort under state law, usually called the supreme court of the state. Controversies arising within a state are fully dealt with by the state’s own courts, unless they also engage issues of federal law or the Constitution, in which case they may ultimately be resolved in the federal judiciary. As such, the only overlap between the state courts and the federal courts is at the Supreme Court of the United States level.
Other federal systems typically have subunit level court systems as well. However, not all have the deeply distinct division between the legal systems that is found in the United States. Austria, for example, constitutionally reserves criminal justice to the national government (while in the United States there are separate and distinct federal and state criminal codes). Also, in the federal case of Canada, provincial and territorial courts may hear cases involving either federal or provincial/territorial laws and hence do not have the same clear-cut divisions that we see in the US case.
Table 9.3. Types of judicial review (abstract and/or concrete) in twenty-six democracies
Sources: Ginsburg 2003; Lijphart 2012; Lollini 2011: 65–66; Navia and Ríos-Figueroa 2005: 203; Stone Sweet 2000: 47; Vanberg 1998: 302; Vink, Claes, and Arnold 2009: 31. Also Stephen Gardbaum, personal communication.
6. Political selection of judges. To use the earlier terminology discussion, the United States has a recognition system for the appointment of all federal judges, from the trial-court level to the Supreme Court. In this system, American jurists do not train to be judges but train first, normally at least, to be attorneys and then later may find a second career on the bench.
The American system provides for an explicitly political process of selection for all judges, whereas many other democratic states have career judiciaries with some insulation from the political realm (as discussed in box 9.1 and illustrated by table 9.1—both earlier). However, as table 9.4 illustrates, all of our cases have direct political involvement in terms of the highest courts—either supreme courts in common-law situations, or constitutional courts in civil-law cases. The US system is arguably the most political of them all, as the nomination and confirmation processes (as well as removal) are all in the hands of electorally selected actors.
Typically, political selection means appointment by the executive or legislature or the consent of both branches together. For instance, all US federal judges, from trial courts all the way up to justices of the Supreme Court, are nominated by the president and appointed if confirmed by a majority of the US Senate (and it is a process, as noted in chapter 7, subject to a potential supermajority requirement). In the US states, the process of political selection actually means election of judges in most cases. No other federal system among our democracies that are both federal and have separate state courts has any electoral process for these courts. Additionally, nowhere in our thirty-one democracies are there elections for the selection of judges at the national level.13
In addition to formal career judiciaries as noted earlier (such as France and Italy), other examples of how systems may differ from that of the United States include Brazil and Korea. Brazil, a federal, presidential case like the United States but one that mixes career and recognition elements, places appointment power in the hands of the executive, but the president must choose from lists of candidates linked to specific legal career paths.14 Further, candidates must pass an examination to qualify for the lists. In Korea, the chief justice makes appointments with the consent of the Council of Supreme Court Justices.
Table 9.4. Appointment and terms of office of high-court justices and constitutional-tribunal magistrates
Notes: N/A indicates that reliable numbers could not be determined.
a Full membership; divided into panels for specialized types of cases.
Sources: Maddex 2008, national constitutions, and official court Web sites.
7. A mix of appointed and elected judges. At the national level, all judges are appointed by the president and confirmed by the Senate to serve for life on conditions of good behavior. However, at the state level, the process of selecting judges is more varied.15 Some states have straightforward partisan elections in which candidates for the bench run both in nominating primaries and in the general election under party labels. Others have elections but sans party labels, while others have a process of executive appointment followed by retention elections (where voters are asked whether the given judge should remain in office or be replaced by another appointee).
Of our thirty-one cases, the United States is unique in having any elected judges of any kind.16 Indeed, the United States is nearly unique globally in this regard, with only Bolivia being another case of elected judges (and that is a recent phenomenon; see Volcansek 2006).
8. Judges with true life terms. Referring back to table 9.4, we can see that life appointment to the bench without mandatory retirement is unusual. Of the thirty-one cases, only the United States and two other countries (Argentina, and Denmark) have life appointments without an age limit. Further, it should be noted that for the United States, life tenure exists for all federal judges, from the district-court level to the Supreme Court. The importance of life appointments (on condition of good behavior) is accentuated by the political nature of these appointments (as noted earlier) and the fact that the confirmation process is linked to the Senate, which has, as noted in the chapter on legislative power, a de facto supermajority requirement for action. As this supermajority requirement has become increasingly the norm in the Senate, it has become harder for judges to be confirmed to the bench. It can be argued that the political stakes are increased by the fact that once appointed and confirmed, judges can serve for many, many decades.
In comparative terms it is noteworthy that judges in civil-law systems almost universally have mandatory retirement ages. When it comes to constitutional tribunals, most have delimited terms (ranging from two to twelve years) and even for the two that do not (Austria and Belgium), retirement is mandatory at age seventy. The average tenure for US Supreme Court justices is sixteen years, which surpasses all of the established term lengths noted in table 9.3 save Germany’s, which it matches, and Hungary’s (where a theoretical eighteen years of service is possible on the constitutional court via two nine-year terms). The longest serving US justice was William O. Douglas, who served just more than thirty-six years.17
CONCLUSIONS
The United States has one of the more significant court systems among our cases because it is a constitutionally separate branch of the federal government, and it is one that wields strong judicial review in the context of a deep common-law tradition. Further, the states also have strong court systems that also exist in separation-of-powers circumstances and with judicial review powers over state laws. Indeed, the US court system has special significance because of other institutional features of the US constitutional system, namely separation of powers and federalism. In this regard, it is similar only to the Latin American cases of Argentina, Brazil, and Mexico. It should be noted that, especially since the 1940s, there has been a global trend to provide for powers of judicial review and to house them in special constitutional tribunals. In general, it also should be noted that as democratic governance has deepened, both globally but also within individual countries, courts have a clear role in protecting the constitutional order of given countries as well as the individual rights and privileges of citizens.
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BOX 9.2. OTHER AMERICAN EXCEPTIONS IN THE JUDICIAL AND CRIMINAL-JUSTICE SYSTEMS
Adam Liptak wrote a series of articles for the New York Times called, collectively, “American Exception,” which ran from October 2007 to September 2008 and which examined some of the idiosyncrasies of the American court system.a We introduce a few of them here.
Bail bondsmen. If one is arrested and wishes to be free in anticipation of a trial, bail must be posted as a means of ensuring that one will show up for trial. This is typically accomplished via the purchase of a bond for the amount of the bail. In the United States, this is a for-profit business. However, Liptak notes (2008a): “In England, Canada and other countries, agreeing to pay a defendant’s bond in exchange for money is a crime akin to witness tampering or bribing a juror—a form of obstruction of justice.”
Expert witnesses. As part of its common-law (and therefore adversarial) system, the US uses a system of partisan expert witnesses. These witnesses are acquired by the two sides in a court case to testify about facts in evidence in the trial. Liptak notes in his piece that while the notion of expert witnesses exists in other cases, the form that the process takes in the United States is unique: “Partisan experts do appear in court in other common-law nations, including Canada, Singapore and New Zealand. But the United States amplifies their power by using juries in civil cases, a practice most of the common-law world has rejected” (Liptak 2008d).
This creates potential problems, as one study notes, “given that experts are called by one party and paid by that party, there is an inevitable danger of bias in favor of that party” (Mnookin 2008: 1010). To address this problem, other countries employ other methods, such as having experts selected by the courts rather than by the attorneys representing the various parties. Another approach, which is used in Australia, is called “hot tubbing,” in which all the experts testify at once and are all subject to questioning at the same time. Yarnall (2009: 323) explains: “Hot tubbing, more formally known as concurrent evidence, involves experts from each side engaging, under oath, in a conversation with each other, the judge, and counsel from both sides of the case.” Under such a system, experts from all sides can be heard, but the method of fact-finding is quite different than in the US system.
Exclusionary rule. A key feature of the US criminal justice system is that evidence gathered through problematic means (for example, via police misconduct or without an appropriate warrant) is subject to exclusion at the trial. For example, if a police officer found physical evidence linking a suspect to a crime but obtained that evidence illegally, the evidence would likely be unusable in court. Liptak (2008c) notes:
“‘Foreign countries have flatly rejected our approach,’ said Craig M. Bradley, an expert in comparative criminal law at Indiana University. ‘In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.’”
He also states: “The European Court of Human Rights, a notably liberal institution, refused in 2000 to require the suppression of illegally obtained evidence. Using such evidence to convict a man charged with importing heroin into England, the court said, did not make his trial unfair.”
The only other study concerning any type of exclusionary rule concerns Germany (Bradley 1983).
Punitive damages. Like expert witnesses, the notion of punitive damages is primarily a common-law phenomenon (which thus limits the number of countries where such damages are awarded). However, the United States is uniquely high in the awards it provides.
NOTE
a. The series can be found online at http://topics.nytimes.com/top/news/us/series/american_exception/index.html?offset=0&s=newes.
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Notes
1. See, e.g., Diamond 1999: 11–12, 111–12, as well as Carey and Howard 2004 in terms of the general issues. Also see Ungar 2001 as an example of the examination of the importance of establishing rule of law in the context of democratization.
2. Polling was less prolific in that era than is the case now, making exact measurements of public sentiment difficult. However, a Gallup Poll taken after the Brown decision was issued showed 55% national support (see Gallup, “Race and Education 50 Years After Brown v. Board of Education,” online at http://www.gallup.com/poll/11686/race-education-years-after-brown-board-education.aspx). However, we do know that regional opposition to desegregation was high. “In 1959, 72% of white Southerners objected to even a few blacks in white schools” (Frankenberg, Lee, and Orfield 2003: 16). At a minimum, even if there was majority support for ending segregation, that support was not overwhelming and certainly was not enough to result in a national policy change via the legislature.
3. This problem was a central feature to John Stuart Mill’s essay “On Liberty” and is a key debate within democratic theory. In the context of court actions and judicial review, see a theoretical discuss in Dworkin 1990.
4. The Supremacy Clause in Article VI states that “Judges in every State shall be bound” by the Constitution, federal laws, and treaties. This provides, therefore, for some sort of judicial review of state laws. There is no similar provision made, however, for federal laws. The Supreme Court first applied this power in Ware v. Hylton (1796), over half a decade before Marbury v. Madison (1803) established judicial review of federal laws. See Benedict 2006, chap. 6, esp. 107–12 for a discussion.
5. For a discussion, see Stone Sweet (2000: 44–45), who also classifies direct citizen appeals over rights violation as a third type of judicial review.
6. This council would have consisted of the executive and members of the judiciary, See the eighth clause of the Virginia Plan, online at http://avalon.law.yale.edu/18th_century/vatexta.asp.
7. See Casto 2002 for a detailed discussion of the matter that inspired the request and the response of the court. Jay’s letter can be viewed online at http://research.archives.gov/description/5956319. See also Harvard Law Review 2011.
8. Depending on the situation, the judicial council may make a list of recommendations from which some other actor chooses, a singular recommendation that is a de facto nomination, or it may make the appointment directly.
9. Additionally, India created such a body via the Judicial Standards and Accountability Bill of 2010. Its establishment and operation lies outside the scope of this study, however.
10. Volcansek 2006, e.g., discusses the partisan political nature of the Italian judiciary, which is a career system.
11. Miers was White House counsel at the time of the nomination and had served as president of the State Bar of Texas as well as having been in private practice at a large Dallas law firm. However, her lack of experience as a judge or legal scholar led to widespread criticism of her nomination. She eventually withdrew her name from consideration.
12. Leahy made the comment on the April 11, 2010, edition of the program. A transcript and video can be found online at http://video.msnbc.msn.com/meet-the-press/36388829#36388829.
13. The members of the Japanese Supreme Court are subject to retention elections after ten years. (None has ever lost such an election.)
14. See Oliveira and Garoupa 2011,
15. For a comprehensive and detailed rundown of these processes in US states, see the American Judicature Society’s “Methods of Judicial Selection,” available online at http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state.
16. Varsho 2007 mentions “some locally elected lay judges” (503) in Finland, a phrase repeated on the Finnish Ministry of Justice’s Web site (see http://www.om.fi/en/Etusivu/Ministerio/Oikeuslaitosesite). However, this “election” is by courts (meaning that these are appointed, not elected).
17. Term length information via the Supreme Court of the United States: http://www.supremecourt.gov/faq_justices.aspx#faqjustice2.
