Many constitutional theorists have defended judicial action and activism in the interest of protecting “democracy” or the democratic process. Where courts set out to protect parliamentary rights and powers, this falls squarely within the ambit of such theories. And yet, in quite a few cases, courts act even where parliaments could, at least in theory, assert their own rights, thus raising the question if and when such judicial paternalism might be defensible. This paper takes up that question by looking more closely at the kind of deficiencies courts encounter in the democratic process, asking which kinds of situations might justify such constitutional paternalism.
The crisis of parliaments is a common development in many constitutional states. Origins and causes vary in each local context, as well as reactions to the crisis. While the judicial response to these crises is often constitutional paternalism, the political reaction commonly led to the emergence of anti-system and/or populist parties. Particularly in Europe, populist parties succeeded to take over parliamentary majorities in many cases after years of technocratic governments. This paper will explore a theoretical contradiction emerging from these developments. On the one hand, populist parliamentary majorities attack the basic pillars of the separation of powers, by undermining the legitimacy of counter-majoritarian “technocratic” institutions, such as constitutional courts and independent authorities. On the other hands, neo-populist parties usually reject traditional political cleavages and eventually use technical expertise as a legitimizing source of their policy.
This piece argues that courts in transformative contexts sometimes have an obligation to offer a structural remedy for widespread violations of socioeconomic rights. At the same time, the obligation is one that is contingent on a number of factors, most of which courts rarely seem to consider. The first is the scarcity problem, or the impact of one structural remedy on the court's capabilities and ability to issue others. This makes it important for courts to compare the gravity of different problems and their likelihood of success in confronting different kinds of problems. Second, courts should consider the effect of their interventions on the political system over time. In this sense, they should aim to undertake interventions that improve the functioning of the state, rather than undermining it. This piece will consider how judiciaries can be better designed and incentivized to consider these factors.
In 2017, the Israeli High Court of Justice (HCJ) decided two dramatic decisions: First, it invalidated a law based upon flaws in the legislative process. Second, it issued a nullification notice to a temporary Basic Law that – for the fifth time in a row – changed the annual budget rule to biennial one. While some have criticized these decisions as “undermining the balance between the three branches of government”, I claim that the HCJ protected separation of powers, acting as guardian of the Knesset in its legislative and supervisory roles for improving the Israeli political-democratic system. Thus, by applying creative judicial mechanisms the HCJ was exercising a ‘dynamic role’. This exercise of judicial activism, not in a traditional counter-majoritarian role of the court as guardian of individual rights but as guardian of the legislature in a conflict between the branches, resembles courts’ activities in the Global South geared to protecting fragile democratic processes.