What Judicial Review Without Judicial Supremacy Means (and Does Not Mean)
In earlier work, I argued that the decoupling of judicial review from judicial supremacy means that although courts have powers of constitutional review of legislation, their decisions are not necessarily or automatically authoritative on what the law of the land is.
Unlike the case under judicial supremacy, judicial decisions on constitutional issues are not unreviewable by ordinary legislative majority. Accordingly, judicial supremacy concerns the allocation of power between courts and legislatures on the resolution of constitutional issues, including of course contested rights issues.Some recent critiques of the model have implicitly or explicitly called into question its treatment of judicial supremacy by claiming that it (a) relies on an overstated or caricatured conception of judicial power under traditional (i.e., strong-form) judicial review and/or (b) focuses only on “formal” or legal powers and ignores the practical dimension of how they interact with various real world factors, whether political, cultural or institutional. Thus, it is suggested that judicial supremacy is mistakenly conceived as granting essentially unlimited authority to courts, whereas in most systems even within the realm of formal powers there are counterweights. These include the possibility of legislative jurisdiction-stripping, constitutional amendments to overrule judicial decisions, and the non-binding nature of their rulings on future executive and legislative conduct. On the power versus practice distinction, it is argued that strong-form judicial review does not in fact always or necessarily result in judicial supremacy, where, for example, courts defer to legislatures. By the same token, weak-form judicial review may in practice result in judicial supremacy, where legislatures tend to defer to the judicial view. The emphasis on - indeed obsession with - the “final say” overstates the practical consequences of a court decision; indeed, in the real world there is no such thing as the final word on constitutional issues (Kavanagh 2009; Carolan 2013).
To begin a clarification of what exactly judicial supremacy - and hence judicial review without it - means for the purposes of the general model, it may be useful to compare it with other concepts of supremacy commonly used in legal and political discourse: constitutional, legislative and federal supremacy. The comparison makes clear that “supremacy” per se is about normative hierarchy, and very often about which law/position prevails where two conflict with each other. Thus, “constitutional supremacy” means that the constitution is the highest type or source of law in a legal system, higher on the normative scale than legislation, and it prevails over all other types of law in cases of conflict. Similarly, “federal supremacy” means the same thing with respect to conflicts between federal and state/provincial law: all federal law, of any type, trumps all state, including state constitutional law. “Legislative supremacy” means that legislation is the highest type of law in a legal system, and prevails over other types of law - such as common law, regulations or secondary legislation - where they conflict. It follows that there can be no substantive judicial review of legislation for conflict with a higher legal source because there are none, although there will be rules for the resolution of conflicts between two statutes. For the same reason, the legislative power is legally unlimited.
So, too, the concept of judicial supremacy concerns a hierarchy of norms, but it operates not in the context of what happens when two laws conflict with each other but rather of whether there is a conflict. In other words, it resolves a second-order conflict between parties/institutions rather than a first-order one between laws. Its essential meaning is that a judicial decision made in the proper exercise of its jurisdiction is legally authoritative on whether there is a conflict between the higher law constitution and a statute, and prevails over the opinions of all other relevant parties and institutions presented in that proceeding.
In particular, judicial decisions on constitutional matters stand higher in the normative hierarchy than those of executives and legislatures made in the context of defending a challenged statute. In the rights context, such judicial decisions typically involve several sub-issues, including (1) the interpretation of the statute, (2) the interpretation of relevant constitutional provisions, and (3) whether any limits on rights are justified, with respect to each of which there may be disagreements not only between the parties but ultimately between the court and the legislature. Accordingly, judicial supremacy includes, but is not limited to, supremacy in interpreting the constitution in this context. Part of the legally authoritative or “supreme” nature of such judicial decisions is that in execution of the first-order principle of constitutional supremacy, having determined that there is a conflict, the court will treat or declare the unconstitutional law as invalid. If this occurs within a “concrete judicial review” or case or controversy procedure, the court will refuse to apply the statute.[130]Let me illustrate judicial supremacy and its consequences with the familiar example of same-sex marriage in the United States. When the Supreme Court recently pronounced, by five votes to four, in the context of an appeal against a lower court ruling and as part of its decision in the case that there is a constitutional right to same-sex marriage,[131] this amounted to a legally authoritative resolution of a highly contested - and litigated - rights issue. Its view prevails over the conflicting view of the defending states and all/any other institutions. In other words, the Supreme Court’s decision has higher legal status than that of all of the other participants in the debate. It provides an authoritative interpretation of the (existing) constitution - yes, it includes this right - which binds all other courts in the country. Henceforth, any state or federal entity that enacts or enforces a ban on same-sex marriage - perhaps because it disagrees with the Supreme Court’s interpretation of the Constitution - may be sued by a party with standing and the ban will be invalidated on the authority of the Supreme Court’s decision,[132] whether or not the Supreme Court decision itself legally binds the state or federal entity in the first place.
(In many non-US constitutional systems, the binding effect of a constitutional court decision on all political actors is express and unquestioned. Given the near-inevitability of a legal challenge to such a measure, it is unclear what practical difference this distinction makes, where it applies). Of course, the Supreme Court may overrule its decision in a subsequent case, but as the only actor that can do so (within the existing constitution), this is part of its supremacy.This differs from the counterfactual scenario in which the Supreme Court had ruled the other way and held that there is no constitutional right to same-sex marriage, in which case the general principle that the Constitution is a floor not a ceiling would permit states and the federal government to supplement constitutional rights through state law or federal statute - if in the case of the latter the measure is otherwise within the scope of federal authority. This latter also covers the situation in which state or federal governments take the view that the Supreme Court’s constitutional decisions do not sufficiently protect a constitutional right, as with the well- known Religious Freedom Restoration Act 1993 and the right to free exercise of religion. Whether or not they are motivated by constitutional disagreement with the Court, any such state or federal supplementing measure takes effect as an ordinary, non-constitutional law. Thus, a suitably drafted subsequent statute, reflecting a later Congress’s views, would normally trump such a law as an express or implied repeal of it.[133] The 1964 Civil Rights Act is another leading example of a federal statute that supplements the Court’s authoritative decision about what the Constitution provides, in this case under the equal protection clause.
Judicial supremacy in the sense just outlined is part and parcel of the standard modern power of judicial review of legislation that now exists in the vast majority of countries around the world.
It is precisely the innovation of weak-form judicial review, as recently institutionalized in the various Commonwealth jurisdictions, to show that judicial supremacy in this sense is not a necessary or essential part of judicial review. So in New Zealand and the United Kingdom, statutory bills of rights provide that judicial decisions finding legislation in conflict with protected rights are never legally authoritative in that such a decision does not affect the validity of the legislation and courts are still required to apply it in the case at hand.[134] In Canada, judicial decisions on most constitutional rights issues[135] can be said to be conditionally legally authoritative in that the Charter of Rights and Freedoms empowers federal and provincial legislatures to reinstate statutes invalidated by the courts by ordinary majority vote for a renewable period of 5 years.[136] Hence judicial review without judicial supremacy. This more limited judicial authority is perfectly possible within a constitutional bill of rights. It is even consistent with constitutional supremacy, where it is understood that the question of whether there is a conflict between the constitution and a statute is authoritatively resolved by the legislature and not the courts. Here, the position of courts and legislatures are reversed as compared with judicial supremacy: the judicial view is relevant and may be taken into account by the legislature, but it is not the legally authoritative one.Does strong-form judicial review, of which judicial supremacy in the above sense is an intrinsic part, mean or require that a highest court’s decision - say, on the same-sex marriage issue - provides the “final word” on the issue for all time? Does the concept of weak-form review implicitly depend on such a strict conception of finality to ground the difference from strong-form? The answer to both is “no.” Judicial supremacy addresses the question of whose view on a constitutional issue prevails for the time being, and this is sufficient to provide the contrast with weak-form review.
Clearly, as noted, the U.S. Supreme Court can change its mind or, more likely, its personnel to overrule the decision - just as under legislative supremacy the one thing a legislature typically cannot do is bind itself for the future. Indeed, the pre-1966 practice of the UK House of Lords binding it to its own previous decisions was, in a sense, more of a limit on judicial supremacy than its current, more usual rule for highest courts - in that later members of the court were bound by their predecessors.But what about the legal power of the people to enact a constitutional amendment that bans same-sex marriage or declares that nothing in the Constitution shall be interpreted as establishing a right to same-sex marriage? Does this amendment power negate judicial supremacy? Is it, in this sense, equivalent to the legislative override power in Canada? Does the answer depend on how easy or difficult it is to amend the constitution?
I do not think the general power to amend a constitution negates judicial supremacy in the sense outlined above. The reason is that although such a constitutional amendment (where enacted) may practically require a different outcome if and when a new case is brought, it doesn’t alter the power of the courts to issue authoritative rulings on whether there is a conflict between the (new) constitution and a statute. To be sure, the raw material over which this power is exercised has changed, and therefore the currency/relevance of its original decision on this issue, but not the power itself. Judicial supremacy does not imply the freedom to ignore constitutional text and only really has bite, as it were, where there are two plausible answers to a constitutional question, which a clear, unambiguous amendment can largely rule out. For example, had Wendell Willkie challenged FDR’s run for a third presidential term in 1940 in a court of law rather than of public opinion and lost, I don’t believe we would say that the Twenty-Second Amendment overruled the Court or negated its supremacy because it is understood that clear text governs, as a first- order matter. Moreover, if it is only meaningful to talk of judicial supremacy where there is either no power to amend a constitution or the courts are empowered to declare such amendments unconstitutional, then this would be a very narrow usage and we would still need another concept to distinguish the type or degree of judicial authority under a US-style system from a UK-style system (unless ultimately the distinction proves to be meaningless in practice).
For somewhat similar reasons, I do not think that a general power to amend the constitution is fully equivalent - at least conceptually and normatively - to the legislative override power in Canada (or the power of legislatures to retain a statute found incompatible with the bill of rights in the UK and New Zealand), even if both could be achieved by the same percentage of votes: ordinary majority, two-thirds, etc. According to most commentators, the legislative override power is conceptualized and justified as a mechanism to resolve reasonable disagreements about contestable rights issues between courts and legislatures (rather than to enable “rights misgivings”). The point is to reject the legal authoritativeness of the judicial position on the basis that “democracy requires that a reasonable view of the legislative majority trumps the reasonable view of a judicial majority” (Perry 2003, 661). By contrast, the constitutional amendment procedure concedes the authoritativeness of the judicial position and changes the first-order “raw material” on which it was based.
In practice (and internal overriding aside), the staying power of particular judicial decisions, and so the relative strength of judicial supremacy in a given legal system, will vary depending on at least three factors relating to constitutional amendment: (1) the ease or difficulty of the constitution’s formal amendment rules, (2) the absence or existence of dominant political parties, and (3) whether the decisions are in areas of the constitution that cannot be amended. These three are themselves linked. Thus in India, it was the relative ease of constitutional amendment under a rule requiring a two-thirds vote of both houses of parliament, combined with the relative ease of satisfying it during the period of Congress Party dominance, that led the Supreme Court of India to establish its doctrine that the “basic structure” of the constitution is unamendable.[137] The result is that judicial supremacy with respect to the basic structure is significantly stronger than the rest of the constitution. Here the legal authoritativeness of its decisions is even greater as they cannot legally be rendered redundant through the amendment procedure. By contrast, the decline of the Congress Party and the failure (thus far) of any other party to replace it as a dominant one in terms of two-thirds of parliamentary seats renders judicial supremacy politically stronger while this lasts.
These factors show that judicial supremacy may be stronger or weaker in that the relative difficulty of constitutional amendment and/or the existence of an unconstitutional constitutional amendment doctrine add to the effective legal authority of judicial decisions on constitutional issues by extending their likely duration. Indeed, the issue of judicial review of constitutional amendments versus legislation is a fascinating new topic in comparative constitutional law that has obvious implications for, but does not supersede or render redundant, the issue of judicial supremacy within the more traditional and common form of judicial review. A fourth factor is political/legal culture and the “sociological” or political authority/legitimacy of a constitutional court. Thus, despite a relatively easy formal amendment rule resulting in reasonably frequent textual changes to other parts of the Basic Law, almost never has a constitutional amendment been enacted in Germany to “overrule” a fundamental rights decision of the constitutional court. This example shows that form and practice can of course work in both directions.
Does the judicial supremacy that is part and parcel of strong-form judicial review mean that courts always in fact have the final word for the time being, that they exercise their powers in a maximal way to resolve constitutional issues at every opportunity that arises, that they never defer to the views of other institutions for prudential or principled reasons? I think this question suggests that two different conceptions of judicial supremacy are in use that it would be helpful to distinguish. The first and narrower one is the meaning I have set out above: the normative hierarchy within a legal system that renders judicial decisions authoritative on litigated constitutional issues, as compared with the newer model that denies this authority to exercises of judicial review. It is a conception geared primarily towards institutional allocations of power and constitutional design. The second conception relies on a broader, more all-things-considered sense of which groups, forces, institutions within a society have the greatest overall power or influence over constitutional decision-making and constitutional politics. Whereas strong-form review itself has limited institutional variations (centralized versus decentralized, abstract versus concrete, etc.), judicial supremacy in this broader sense may vary from country to country and from time to time based on a very large number of contextual factors. It is akin to the sociological sense of legitimacy as distinct from the normative one. Or to the observation that in modern parliamentary democracies, legislative supremacy has long given way to executive supremacy. It employs a different, broader sense of supremacy - which institution has greater overall power - than the standard narrower one concerning institutional forms.
Accordingly, the manner in which courts - and other institutions - exercise their powers may vary in ways that make it helpful, and probably essential, to contrast the legal and factual positions. So, for example, where courts with strong-form powers routinely exercise them deferentially, by choosing to accept the legislature’s view that there is no conflict between the constitution and a statute, it may be a useful shorthand to contrast them with courts that do not by describing this situation as one of de jure judicial supremacy but de facto legislative supremacy (not in the first-order meaning of the term but in the second, who decides whether there is a conflict sense). The reasons courts may defer are various, ranging from dominant party control of the appointments process and length of term (Japan) to cultural norms, to judicial faith in the legislative review process (Scandinavia), and to the greater expertise of legislatures on the relevant constitutional issue (sometimes under proportionality). Here the court’s decision remains the formally authoritative one but its content is largely provided by the legislature.
And the same is perfectly possible in reverse under weak-form judicial review. Thus, even though judicial decisions on rights issues are not (fully) legally authoritative, they may become practically or politically authoritative if legislatures routinely defer to them by (in Canada) refraining from exercising the override power or (in the UK and New Zealand) amending or repealing statutes found by the courts to be incompatible with the bill of rights. Accordingly, in practice strong-form judicial review may be weak and weak-form strong. At this point, determining whether, when and why this is the case undoubtedly constitutes the interesting and important scholarly task, now that the institutional/analytical frameworks are well understood. “Formal” allocation of power or “structural devices” are of course not necessarily, and probably never actually, conclusive as to how a system operates. But this does not mean they have no impact. From a constitutional design perspective, if you were opposed to judicial supremacy, would you likely think that formal powers are formal only and place all your bets on de facto legislative supremacy, or vice-versa? At least until the contrary is shown, it seems reasonable to believe that both are outcome-influencing variables.
Note that this same power/practice distinction might apply to other types of supremacy within constitutional discourse. So, for example, where states are well- represented in a federal legislature, in practice it might be said that there is no federal supremacy as things that states oppose do not get enacted. Or because legislatures are heavily constrained by moral, political, and practical factors, legislative supremacy at the ground level looks little different from its alternatives. Even granting these facts, does it follow that federal or legislative supremacy are illusory or useless concepts or that the choice among various institutional allocations of power is practically irrelevant? Variation in practice among models - whether constitutional versus legislative supremacy, presidentialism versus parliamentarism, or judicial supremacy and its alternatives - is to be expected and neither itself renders the model redundant nor negates its status qua model.
In sum, judicial review without judicial supremacy refers to a system in which decisions of courts on constitutional issues are not unconditionally legally authoritative for the time being in the way that they are under strong-form review; they are not unreviewable by ordinary legislative majority. In other words, the two types of judicial review differ in their allocation of power between courts and legislatures with respect to the resolution of constitutional issues. Among other factors, how both systems of judicial review do or will likely operate in practice is obviously highly relevant to choosing between them, but not (yet at least) to whether they offer a meaningful choice. The model adopted in the five Commonwealth jurisdictions does not only, however, provide a new form of judicial review; it also provides a new justification of judicial review. For once shorn of judicial supremacy, the task of defending a judicial role in rights protection is a different - and easier - one. A model of constitutionalism that provides for judicial rights review of legislation but grants the legislature the power to authoritatively resolve the rights issue within the existing constitution is normatively, and not only practically, different from one that does not. Let me now turn to the task of elaborating the content of this new and distinctive justification of judicial review.11 [138] 5.3