Posner, Barak, and Judicial Activism

Richard Posner's recent review of Aharon Barak's "The Judge in a Democracy" in The New Republic is good reading and focuses attention not only on a favorite of constitutional activists but also of many Israelis who are proud of their creative, intelligent, and extremely aggressive (recently retired) Chief Justice. Barak's activism is often glorified in American Law Schools; he often found "unreasonable" government actions illegal, and occasionally compelled government action where democratically elected officials had chosen not to act or to act differently, and thus appealed to the optimistic and wildly self-confident views of American academics. Posner, unsurprisingly and refreshingly, is much less smitten than many of the constitutional law scholars I have observed.

I have some trouble with the Review's second step, which is to say that Barak's hubris should reveal why we would not want to cite foreign decisions as precedent. I suppose foreign opinions are more valuable the more the foreign system resembles ours, but if foreign judges follow (or take upon themselves) different standards of review that does not necessarily make them useless. To be sure, if they struck down statutes simply because they thought them unwise, our courts ought to learn to pay little attention, but even Judge Posner is not making that claim about Barak. Just as our legislatures are, or ought to be, interested in how other countries deal with issues like health care and taxes, so too our courts might care about foreign treatments - even if they ought not use a foreign decision (alone) to find some U.S. statute unconstitutional.

In any event, we might see judicial activism as a long-term product of judicial quality. If, over time, a democracy finds that its legislature performs well, it is natural for it to build up more hostiity to judicial activism than if it found its legislature wanting and its judges prescient. At various times our judges have taken it upon themselves or even been encouraged to decide important questions of environmental policy, policing strategies, campaign finance, and much more. We like to think that the proper judicial role is one set by our constitutional structure, but surely we should expect a greater (or lesser) judicial role the more that branch appeared to have outperformed the legislature (or botched things) the last few times around. Judge Posner recognizes this in his Review, of course, but wishes that Barak had been more self-conscious about the role of local conditions or the possibility that he (Barak, not Posner!) was occasionally misguided. But the larger point is that the degree of activism, and possibly even the "right" degree of activism might be a function of expected quality.

Finally, I wonder whether our conceptions of judical activism have something to do with our three branches of government, so that a parliamentary system (like Israel's) might be much less concerned with judicial overreaching. If the citizenry of Israel thought that its supreme court went too far, I think the government there would have a much easier time ignoring the court than would our executive or legislative branch in similar circumstances. This conjecture requires more evidence about legal systems around the world, but it is interesting that Barak was treated so respectfully in a country that rarely exalts its elected officials.

Comments

[Carl Dahlman]

The issues discussed here cannot be addressed properly without a firm understanding of the complex problems and paradoxes that make up the theory of social choice. Social choice resides in the intersection of political science and economics (esp. that part of economics called public choice), and is poorly understood by lawyers and not adequately integrated into their thinking. With respect to the post above, Saul Levmore argues that the relative quality of performance when comparing the legislature and the judiciary should be determinative for which collective choice model should be assigned the responsibility for making a determination. That presumes that we have some acceptable method for making a collective ranking of the quality of the outcomes we are supposed to compare.
And therein lies the problem. No such collective ranking can possibly exist. We have known this for a few hundred years, since Condorcet as a matter of fact, and Kenneth Arrow got the Nobel Prize in economics for proving this, among other things.
So, if there cannot be any such collective ranking according to which we can rank the quality of the decisions, how are we supposed to arrive at a proper division of labor between legislatures and judiciaries? Unfortunately, no one has an answer to that. Not Barak, not Posner, not Bork, not any law school or legal journal in the world, no political scientist, and no economist. You could lay all these people and institutions end to end and they would never reach a conclusion. This is the paradox of social choice. In fact, from that perspective, both the judicial activists and the judicial inactivists can make equally good cases for their positions. We really have very little to go on, unfortunately, except that, somehow, we keep muddling through and most of the time do sort of OK -- at least if we set the standard for "OK" pretty low, such as not having riots in the streets, continual revolutions, and totally unstable constitutional orders.
My point therefore really is that I think that law schools need to integrate into their curricula the essential elements of social choice theory. You really can't get very far without that background in any discussion of the topics that keep popping up on this generally very interesting site. Judges need to understand it in depth, possibly especially if they desire to be activists.

[slevmore]

I'm not sure I understand this comment, though I do see its irony inasmuch as Public Choice is taught at the University of Chicago Law School, and enters into the discussion at many classes and faculty workshops. The comment suggests that Arrow's Theorem means that we cannot possibly say anything intelligent about allocating decisionmaking between two branches of government. There are many reasons to think otherwise. First, some matters might have a correct answer, so that we are not aggregating preferences but looking for a right answer, and public choice (indeed Condorcet himself) suggests that some methods are better than others for that. Second, even where we have reason to think that there is cycling, we might go out of our way not to empower the same agenda-setter repeatedly, and that might be a reason for a particular legislative procedure, or for choosing one branch over another. In any event, I was making something of a market claim, and that is perhaps related to the "right" answer idea. If a great majority of citizens think that a legislature (or judiciary) is solving problems and doing well, then it will want to invest more resources or more of its future in that decisionmaker. Notice that in the case of Israel, with just two branches, there is not even a collective choice "problem," because here the group is choosing between two (rather than three or more) options.

[Jacob T. Levy]

I agree with the admiration for step one and the doubt about step two, though for somewhat different reasons.

Judge Posner writes:

But in fact it has important implications for the controversial issue of whether American judges should cite foreign cases as authority. I must explain what I mean by "as authority." There is no objection to citing a foreign judicial opinion because it contains an insight that bears on the case at hand, just as one might cite a book or an article. But that is different from treating the foreign decision as a "precedent," in the legal sense of a decision that has weight irrespective of the cogency of its reasoning. Some American judges think that just the fact that a foreign court has decided a case in a certain way is entitled to some weight in deciding a similar American case. So if a foreign supreme court has held that executing juvenile murderers is unconstitutional, its decision, even if not impressively reasoned, is one more twig to place in one of the pans of the scales of justice.

But as far as I can tell there's no controvery of the sort that he desribes. There are those who object to any judicial reference in constitutional cases to the holdings or arguments of non-American courts. Most of the cases in which Supreme Court justices have cited foreign opinions in constitutional cases have been either of this sort, or designed to make a purely negative point about someone else's generalization about western civilization or the necessary meaning of democratic values or some such.

And then there's the strange case of the death penalty, in which foreign judicial holdings were treated as evidence of the "evolving moral consensus" which was already a standard in capital punishment jurisprudence-- not as legal "authority" as such. That's a poor standard, and judges are poorly equipped to assess the sociology of moral belief, but foreign cases aren't any worse evidence than most other kinds of evidence when using that standard, and might be better than judges' own intuitions.

I'm hard-pressed to see that Barak is particularly relevant to any part of this.

[Joan A.Conway]

Some systems, like France, are top down, meaning the ruling class male hierarchy decides what even words mean; the language is controlled.

[Joan A. Conway]

"Both the nation's high court and the Massachusetts Supreme Judicial Court used their constitutional power to protect a politically weak minority from state laws that the justices considered discriminatory, directing legal and societal changes from the bench that would not have happened in a state legislature."

See "How FDR Paved the way to Brown vs. the Board of Education post on February 27,2007, and my blogs quoting pertinent people and the development of activist judges.