When institutions disagree: looking behind constitutional competences

This is the text version of an online presentation that I gave on 7 October 2021 at a seminar organised by the Separation of Powers for 21st Century Europe (SepaRope) project. Thanks for having me! Usually the interrelations between the central political and legal institutions of a state are described through some form of ‘separation of powers’ doctrine. There are, of course, numerous variations to the doctrine, but they usually focus on the competences that constitutions award the respective institutions. So in its crudest form, a legislature passes laws that an executive has first drafted and then puts into effect, while the judiciary applies these laws in individual cases. However, a competence-focused approach to the doctrine has limitations. It will not be able to account for the more nuanced expressions of possible disagreement between the institutions. Is there, for instance, tension between the legislature’s intended political agenda and what the executive is willing to do about it? Is the judiciary satisfied with its relatively limited role in applying particular laws as opposed to interpreting them with broader discretionary powers? The limitations of the competence-focused approach arise from the liberal underpinnings that steer it towards models built on inter-institutional deliberation and consensus. My talk asked what these institutional interrelations would look like if our starting point was not something akin to political liberalism but, rather, agonism, that is, conflict and disagreement.

Institutions and the agon

I hesitate to call this a lecture. Although some individual components of my talk today have been well thought through elsewhere in my work, I have yet to bring them together in the way in which I’m here attempting. So it may be a complete miss, or perhaps merely a plan for a project that I haven’t quite started yet.

The basic idea behind today’s talk is a take on the common idiom that our responses can be only as good as our questions allow. In this case, that take would be the following. Any account of the relationships between legal and political institutions, in both statist and transnational – or even transstatist – environments, is always dependent on what the underlying theoretical premises of the study will allow. In the type of research that most of us do, those underlying premises can be shorthanded as ‘liberalism’. There are, of course, several variations of such liberal theories, but there are also enough common features to justify the use of the shorthand. One of those common features involves an ideal of inter-institutional relations. Allow me to illustrate this point with an image.

Aerial view of National Congress Palace, Brasília, around 1961. Photo: Marcel Gautherot. Reprinted from Samuel Titan Jr. and Sergio Burgi (eds), Marcel Gautherot. The Monograph (Zurich: Scheidegger & Spiess, 2015), 210.

This is an aerial photograph of the ‘Three Powers’ Plaza’ in Brasília as it was being completed in the early 1960s. Geometrically speaking the plaza is not a ‘square’ as similar public spaces often are, but an almost equilateral triangle. Each corner of the triangle is occupied by a building representing one branch of Immanuel Kant’s trias politica (Kant 1991: 138), the ‘political trinity’, that is implied in a traditional separation of powers doctrine: the National Congress as the legislature at the top vertex, the presidential Planalto Palace as the executive on the right, and the Supreme Federal Court as the judiciary on the left.

The symbolic significance of the design can hardly be overstated. Imagine the same triangle as an organisational diagram familiar from textbooks representing the constitutional design of a statist or transnational entity and defining the roles of the respective branches or institutions: the legislature with its vertical position at the top of the triangle implying supreme power and authority, the executive putting legislation into effect on one side below it, and horizontally on the other side the judiciary applying laws in individual cases. The space that lies in between the three vertices, the actual plaza in the ‘real world’ of Brasília, represents the unobstructed access that would allow each institution to oversee the activities of the others.

Such a diagram is, of course, an idealisation. It overdetermines the ways in which public power supposedly operates in a spatially ordered way, and how the reciprocal ‘checks and balances’ are meant to temper that power. In this liberal model, the inter-institutional oversight that the ‘checks and balances’ provide supposedly also produces a balance that allows the statist or transnational entity to go about its business in a way that is deemed democratic.

But perhaps the balance that is consequently achieved between the three persons of the ‘political trinity’ masks their underlying tensions. We could, namely, understand that balance in game-theoretical terms as a ‘balance of power’ – or even a ‘balance of terror’ – in which one institution reluctantly stays within certain bounds due to a fear of reprisals from another. We can formulate a few hypothetical examples by building on the distinction often made between potentiality and actuality. We can ask, for instance, whether the executive has drafted its political and legislative agenda already with the legislature’s potential criticism in mind, or if the legislature, as supreme as it may be with its democratic mandate, tempers its legislation because it anticipates what the judiciary may find unacceptable if the legislation in question was tested in constitutional review.

The point here being that in inter-institutional relations, disagreement need not always actualise into open disputes. The institutions don’t need to make their differences public. But the potentiality of disagreements is always there. When inter-institutional relations are potentially conflictual, they are also intrinsically agonistic (Minkkinen 2020; Wenman 2013). The Greek word ‘agon’ translates into competition, contestation, strife, conflict, and related words. The agon was the competitive process through which the Greece of antiquity identified its best individuals, regardless of whether we were talking about military skills, sports, poetry recital or political oratory. For many 19th century classicists and philosophers, the agon was the key element in the political success of Athenian Greece. In contemporary political theory, agonism which sees politics essentially as an outcome of disagreement and contestation between different actors is best known from the work of, for example, William E. Connolly (Connolly 2002), Bonnie Honig (Honig 1993) and Chantal Mouffe (Mouffe 2013). We can with some reservations even identify agonistic elements in constitutional theorist Carl Schmitt’s friend/enemy distinction (Schmitt 2007). But the main idea is that agonistic inter-institutional relations involve multiple actors with different and often incompatible interests that are played out in the exercise of public power. This is the main point: inter-institutional relations always involve the use of factual power, an element that is usually bracketed out in liberal accounts of the same phenomena.

Before developing these ideas further, I need to take a few steps back to frame my arguments appropriately.

From tripartite to dualistic models

Dutch-born political scientist Arend Lijphart famously claimed that so-called consensual models of government based on proportional representation and coalition governments are more capable of promoting democratic values than governments based on a majoritarian Westminster model. In the latter, a political party that wins the elections usually gains an absolute majority in the legislature after which the leader of the winning party – a prime minister or other – can with relative ease further her political agenda until the next elections (Lijphart 1999: 275-300). We can, perhaps, assume that Lijphart’s consensual ethos applies at least to some extent to inter-institutional relations, as well. Political scientists have, however, pointed out that recent developments, especially after the terrorist attacks of 2001 and the subsequent prominence of security concerns, have shifted consensual models of government closer to strategically motivated political leadership and the premises of the Westminster model. So a prime minister is not only the chairperson of her parliamentary party, but also a political CEO who secures her agenda by leading her parliamentary majority with the help of a rigid culture of party discipline. The aim of party discipline is to strengthen the strategic power of the leadership – that is, the executive – in relation to individual parliamentarians.

This type of model where the legislature is factually subjected to an executive that functions as the political engine of government is both typical and necessary in times that are deemed to be exceptional. American political historian Clinton Rossiter noted that the wartime UK government led by the prime minister achieved its prominent status already before the Second World War. Even though Parliament sat throughout the war period, its legislative duties had diminished at the same rate as the government’s powers had increased. So factually the government acquired the possibility to function without the threat of no confidence motions and was practically free of all parliamentary scrutiny (Rossiter 2002: 155-156; on government in exceptional times, also Schmitt 2005).

From the perspective of Western liberal democracies, the era after September 2001 has undoubtedly been exceptional. Think of the new anti-terrorism measures adopted in several countries, and the risks of new widespread pandemics is likely to strengthen these features further. While there are signs of more permanent changes in the governmental inter-institutional relations, the growing significance of the executive branch cannot be unambiguously attributed to the exceptional circumstances of the post-9/11 world and the new security concerns that it has brought about. So although there is more or less unanimous agreement on the increase of executive powers especially in relation to the powers of democratically elected legislatures, the reasons for this ‘constitutional crisis management’ are more varied (e.g. Owens – Pelizzo 2010).

Claims concerning the increase of executive powers are still inferred from a traditional notion of the separation of powers doctrine and a tripartite institutional model that requires clearly distinguishable legislative and executive branches. But in many cases, we are factually dealing with a model where two institutional persons of the ‘political trinity’, namely the legislature and the executive, have merged into a single political super-institution that German political scientist Winfried Steffani has termed a Regierungsmehrheit, literally a ‘governmental majority’ (Steffani 1997). A governmental majority refers to a single institutional entity, seldom explicitly mentioned in the constitutional framework, that includes a strong executive government pushing forward a political agenda with the support of its majority in an otherwise weakened legislature. In this sense, a Regierungsmehrheit resembles the English expression ‘the elected branches’ that also conflates two institutions into one. A governmental majority can successfully draw on its democratic mandate in so far as the electorate is understood to have given its blessing to the party’s political agenda. The executive then orchestrates all legislative matters by putting this political agenda into effect with the help of a legislature bound by a rigid culture of party discipline (e.g. Flinders 2002).

In terms of standard accounts of a separation of powers doctrine, this development seems to imply that we are gradually moving from textbook tripartite institutional models to more dualistic models in which we have two rather than three institutional entities: a governmental majority led by the executive, and the judiciary. This development echoes the more general shift from consensual models of government towards executive led ‘Westminsteresque’ models of government mentioned earlier. In such a dualistic model, the relative position of the judiciary will have to change, as well. If the traditional starting point of the tripartite separation was that a deferent judiciary primarily applied laws passed by a democratically elected legislature, its motivation for showing deference to an executive-driven governmental majority cannot be the same. Inter-institutional relations are always relative. Meaning that changes in the position of one institution will always affect the others, as well. So we can at least hypothesise that, in such a dualistic model, the judiciary may eventually balance the scales by taking on democratic functions that a weakened rubber-stamp legislature has lost in the merge. From a liberal perspective, this shift in judicial power may seem worrying because it suggests a more ‘activist’ position into which unelected courts move in relation to the elected branches. And in such a juxtaposition of two institutional entities, disagreement is always at least potential.

What is the nature of judicial power in standard liberal accounts of the separation of powers? Once again, we take a few steps back before proceeding.

A ‘political’ judiciary

Alexander Hamilton, one of the best known ‘Founding Fathers’ of the United States, famously wrote together with his colleagues James Madison and John Jay eighty-five newspaper articles known as ‘The Federalist Papers’ to support the ratification process of the country’s draft Constitution. Hamilton penned the article known simply as ‘number 78’ which deals with the constitutional status of the judiciary. Hamilton claimed that the judiciary cannot be regarded as a threat if its powers are defined and delimited in a rigorous enough way. Judicial power did not extend to congressional law-making or to the President’s executive powers, so the courts had no influence over ‘either the sword or the purse’. This is why the judiciary is, in Hamilton’s well-known expression, the ‘least dangerous branch’ (Hamilton – Madison – Jay 2008: 380; also Bickel 1986).

Hamilton’s allusion to ‘dangerousness’ calls for at least two observations.

The first has to do with the separation of powers doctrine in general, and the judiciary’s role in that separation in particular. Traditional accounts of the doctrine usually refer to a concern about public power being concentrated into too few hands (Montesquieu 1989: 157; Locke 1988: 364 [§ 143]). The same concern was echoed by Hamilton’s colleague James Madison who, in the article known as ‘number 51’ (Hamilton – Madison – Jay 2008: 256-260), elaborated on the reciprocal mechanisms with which government branches would oversee each other’s activities. In terms of the judiciary, such mechanisms of ‘checks and balances’ referred primarily to the constitutional review of legislation passed by Congress and of Presidential orders. Reciprocity, on the other hand, was based on the idea that that if the constitution assigned all institutions equally ambitious tasks, no single institution would be in an inferior position in relation to the others. So powers are not only ‘separated’, but also reciprocally ‘balanced’.

A second perspective would at least at the outset seem to be incompatible with the first. When Hamilton argues that the judiciary is the ‘least dangerous branch’, he seems to be calming fears of the opposite. When would the judiciary, then, be ‘dangerous’? The institution using judicial power is deemed to be the ‘least dangerous’ when it functions from a position of deference in relation to a democratically elected legislature. Judicial power implies a corresponding competence which, in turn, suggests limits and boundaries that the judiciary is expected to respect. More generally, the idea of the ‘least dangerous branch’ is a reference to the competence that the judiciary has been given in one statist or transnational constitutional framework or another that is usually limited to applying laws in individual cases. A competence always implies a power that is somehow limited by boundaries.

How would a ‘dangerous’ judiciary, then, overstep the boundaries implied in its competence? Usually overstepping boundaries of judicial power would be expressed by claiming that the judiciary is meddling in ‘political’ affairs that do not belong to the legal realm. The recent discussion concerning the role of the UK Supreme Court comes to mind as an example. So in what circumstances could judicial power be considered political? The word ‘political’ can, of course, take on several different meanings here (Joondeph 2008).

First, the judiciary is an institutional actor in the general framework that makes up a statist or transnational entity. So as one person of the ‘political trinity’, the judiciary performs tasks that are significant for the trinity as a unitary political whole. In this sense, judicial power is undoubtedly also political (Friedman 2005; Ferejohn 2002). Second, the decisions that the judiciary makes will affect the rights and obligations of individuals and incorporated entities in profound ways that can with good reason be described as political. The courts make decisions on the allocation of resources and services, and they oversee the lawfulness of public authorities performing their functions (Palmer 2000). Third, individual judges can be seen as social and political influencers. They network among each other, with politicians and with civil servants, and their views will factually influence the way in which political decisions are made. Even in this third sense, the judiciary is part of a larger political whole (Lee 2011: 401-529; of lawyers more generally, see Abel – Lewis 1995).

If these three descriptions about the judiciary being ‘political’ are relatively benign, we do have more controversial variations, as well.

A political judiciary may, for example, refer to the make-up of the institution’s key personnel meaning that certain emphases – usually white, middle-class and male – lead to corresponding judicial decisions as the expression ‘the judicial patriarchy’ implies (e.g. De Sanctis 1996; see however Katz 2015). The lack of representativeness and the homogeneity of, as the case usually is, a white, middle-class and male judiciary is less desirable political aspect of judicial power (e.g. Thomas 2005). A judiciary may also be ‘political’ in the sense that its decisions are abused to directly advance the political positions held by one of its individual members or another (Bybee 2010).

When I refer to the judiciary’s ‘activist’ tendencies at the borderline where legal decision-making reaches out towards the political, I am primarily talking about the three first-mentioned more benign characterisations. Judicial power is always political to the extent that a strict separation of the legal from the political that positivist accounts of law still adhere to is neither possible nor desirable. By contrast, when the representatives of government accuse the judiciary of meddling with political affairs, they usually refer to the two latter and, admittedly, more problematic characterisations even if those accusations are often merely rhetorical devices. So ‘promoting social justice’ becomes a judge’s personal political commitment that supposedly cannot be inferred from the principles embedded in law. Be what may, the agonistic inter-institutional relations between the elected branches and the judiciary are often acted out in the name of judicial activism.

The term itself was apparently coined by American historian Arthur Schlesinger Jr. in a magazine article from 1947 that dealt with the US Supreme Court’s internal politics in the post-Roosevelt era (Schlesinger 1947). In Schlesinger’s account, the ‘activists’ were legal realists of the Yale school for whom the Supreme Court – and by extension the whole judiciary – had an important role to play in furthering social justice (on the Yalen realists, see Gordon 2004). Schlesinger called the other half of the court the ‘champions of self-restraint’ who were keener to merely see to it that the will of the legislator is fulfilled (see Ferejohn – Kramer 2002). If activism can be identified with just results, self-restraint has more to do with the formality of due process. Often mentioned examples of judicial activism are an expansive use of constitutional review, overturning established precedent without sufficient justification, changes in generally accepted interpretive models, and the consequential justification of decisions from the results (Kmiec 2004). All these examples tell of a negative attitude towards judicial activism typical of liberal theories, a position that is also clearly echoed in the analogous German expression Richterstaat or ‘judicial state’ (e.g. Rüthers 2014).

But we need not take an emphatically positive or negative position from the outset. Judicial activism is namely a factual aspect of judicial power that can even be measured (Lindquist – Cross 2009). In this sense, activism can be detected in the individual cases in which the judiciary exceptionally departs from its more restricted role and sets itself in opposition to the elected branches. For these cases to be pooled together into more than just individual exceptions to the rule, there must be some indication of a common approach that has gained support either horizontally or vertically. Horizontally several district courts may in a relatively uniform manner interpret legislation related to, for example, public order in a way that does not fully acknowledge the measures that government has granted the authorities to control public gatherings. In such a hypothetical case, the courts have considered free speech and the right of association more significant than the government’s public order agenda. Vertically an appeals court may, on the other hand, align these horizontally ‘relatively uniform’ decisions by specifying that public gatherings involving divisive hate-speech should not enjoy the broader protection of these core rights. From a research point of view, it’s worth noting that this type of judicial alignment does not only take place through precedent but also through and in networking opportunities like training events that give judicial professionals more informal ways of striking a common chord (e.g. Piana – Dallara 2015).

An ‘independent’ judiciary

In addition to competence, the exercise of judicial power also requires that the judiciary is independent in relation to the elected branches (Ferejohn 1999; Burbank – Friedman 2002; Gee et al 2015; comparatively, Seibert-Fohr 2012; in the EU context, Kelemen 2012). By referring to its independence, a court may occasionally justify testing its limits and interfere with affairs that, according to a disagreeing view, belong to the elected branches. In the hypothetical example mentioned earlier, such a disagreement could occur if the elected branches claimed that interpreting primary legislation on public order in the described way would go against the delimited area reserved for judicial decision-making, that the details of the interpretation overstep the boundaries of application.

Historically speaking judicial independence was first associated with the courts’ impartiality in relation to the parties of the process. The association with the elected branches is of a later origin. In this second sense, judicial independence was recognised as a constitutional principle only after the Glorious Revolution in early 18th century England after the independence of common law judges in relation to the Monarch had been acknowledged in the 1689 Bill of Rights (North – Weingast 1989). Independence also played an important role in the development of the rule of law because it enabled the courts to secure the rights of individuals and incorporated entities who were litigating against the state or government authorities (Sordi 2010).

How could the independence of the courts, in principle applying laws passed by the legislator with deference, be justified? Shouldn’t judges merely be ‘slaves to the law’, as the French expressed it (Renoux-Zagamé 1998)?

The key argument, resembling Hamilton’s notion of the ‘least dangerous branch’, was the paradoxical claim, usually attributed to Montesquieu, that judicial power is not ‘power’ at all. Montesquieu namely believed that if all judges were appointed from untrained laymen on an ad hoc basis – so without either a permanent judiciary or a professional legal elite – then a judicial power that is not associated with either the state or a profession would be ‘invisible and null’ (Montesquieu 1989: 158). If this were the case, then individuals who acted lawfully would do so out of respect for the law and not for fear of the authorities.

Even though Montesquieu’s idea of unprofessional ad hoc courts never gained support, his idea of a judicial ‘nul-pouvoir’ lingered on. Its echoes can still be heard in the persistent delusion that the adjudicator’s decisions in the courtroom somehow resemble a logical model of subsumption (on the limits, see MacCormick 1994). Even though the factual basis of that logical model was easy enough to falsify – namely that this is not the way in which judges actually think – it had important social and political consequences. An automated logical machine cannot have a will. And by the same token, it cannot use power. In this way the judiciary could be distanced from the political institutions as ‘independent’ and ‘impartial’ (Pasquino 2003: 18-19). Any discussion about judicial activism begins at the point where we perceive the judiciary to have a ‘will’ of its own in relation to the elected branches.

In contemporary times, the clearest way for the judiciary to express its independent will is through constitutional review. As the reviewers of the constitutionality of primary legislation, the judiciary departs from the narrow definition of an applier of laws that the separation of powers doctrine implies. In executing constitutional review, the judiciary can, using Alec Stone Sweet’s vocabulary, interfere with primary legislation in either direct or indirect ways (Stone Sweet 2007; Stone Sweet 2000). These direct and indirect mechanisms also resemble Mark Tushnet’s distinction between strong-form review and weak-form review (Tushnet 2008: 247-250).

The interference of a disagreeing judiciary is direct when it specifically refers to its constitutional competence to do so. If the court’s decision has a ‘legislative’ status comparable to positing legal norms as in the case of the German Federal Constitutional Court, the judiciary even becomes a disagreeing ‘negative legislator’, as Hans Kelsen critically described the role of constitutional courts (Kelsen 1949: 268-269). In the UK, the ‘declaration of incompatibility’ specified in Section 4 of the Human Rights Act 1998 (HRA) is an example of a more indirect mechanism. But even in that case, the public confrontation between the elected branches and a disagreeing judiciary may be politically embarrassing for the former. In the so-called Belmarsh case from 2004 (A and others v Secretary of State for the Home Department [2004] UKHL 56), the House of Lords as the then highest court of the UK held that the detainment periods contained in Section 23 of the Anti-terrorism, Crime and Security Act 2001 were incompatible with Article 14 of the European Convention on Human Rights because it made discriminatory distinctions based on nationality (see Masterman 2014). Even though the HRA only offered the judiciary the opportunity to ‘declare’ that incompatibility in an advisory capacity, its consequences were factually more significant in the sense that the declaration did lead to changes in the law. So advisory statements can lead to factual changes. Even before the legislative changes were made, the decision immediately sparked a more general discussion on the need to limit the powers of the judiciary (see Malleson 2007), a discussion that has continued in the UK since (Horne – Miller 2015; Dimelow – Young 2015).

The HRA offers a good example of the difficulty to distinguish direct mechanisms from more indirect ones. But more apparent indirect influencing can take on many shapes and forms. The judiciary is often invited to participate in public consultations concerning planned legislation. Already at that stage, the judiciary may signal its preferences and even what it would be willing to accept as constitutionally acceptable. In some jurisdictions like my native Finland, the Constitution grants the highest courts – in our case the Supreme Court and the Supreme Administrative Court – the possibility to independently propose new legislation to the elected branches in areas where they deem reform to be necessary. In addition, the judiciary has become a proactive media agent as it has embraced the media artefacts that the contemporary world offers. Most high courts already have their own communications officers and social media handles. The recent launch of the German Federal Constitutional Court’s Instagram account is, perhaps, taking yet one step further. In all three cases, that is, the consultations, the proposed legislation, and the communication services, we can fathom a boundary line at which potential disagreement with the elected branches may actualise.

Regardless of the nature of the inter-institutional disagreements, activism is seen as problematic due to the majoritarian principle embedded into the constitutions of most liberal democracies. This principle would make an activist judiciary a ‘countermajoritarian’ institution, as the American expression puts it (Bickel 1986), operating without a democratic mandate. But if the elected branches are supported by a democratic majority that has given its mandate in elections, why would they feel obliged to tolerate an independent judiciary in the first place that can, in the worst-case scenario, even actively prevent its will from materialising (Ramseyer 1994)?

Political scientists have made a distinction between internal and external explanations (Rogers 2001; also Landes – Posner 1975).

According to internal explanations, the ability of an independent judiciary to openly disagree with the elected branches can even benefit the latter. In the hypothetical examples mentioned earlier, the judiciary has several channels with which to signal its views on the need for reform in advance (e.g., Whittington 2005). Legislation often requires a ‘spark’ before things get going, and these factual channels of influence are a way for the judiciary to convey its views. One such channel is, of course, a certain uniformity in judicial decision-making, as well.

External explanations, on the other hand, are premised on the idea that the judiciary itself has political authority that delimits the possibilities of the elected branches to act freely (e.g., Vanberg 2001). So if there is a high enough public trust in the judiciary, the elected branches that are dependent on the same public as an electorate are also more inclined to respect the views of the judiciary even if it may mean abandoning initiatives that have been high on the political agenda.

Even defining the meaning of a ‘majority’ is not as simple as it may first seem. If the judiciary uses its authority to signal its disagreement about the appropriateness of a particular piece of legislation, what ‘majority’ would it be acting against (see e.g. Cichowski – Stone Sweet 2003; Cichowski 2006)?

Theories of liberal democracy usually only refer to the majority as the electorate that has given its mandate to parliamentary representatives in elections. Italian-born political theorist Pasquale Pasquino, on the other hand, talks about the way in which a democratic majority can be seen as two separate entities (Pasquino 2013). On the one hand, we have a represented majority or, in other words, a proportion of the electorate in whose name parliamentarians act and whose will it exclusively interprets. This is the ‘people’ that individual parliamentarians represent. But democracy includes another more ‘factual’ majority that need not be the same as the represented majority of the electorate. The elected branches may, for example, propose legislation in the name of the majority that it represents that a factual majority, however, opposes. Referendums and other forms of direct democracy (see Dalton – Bürklin – Drummond 2001; Pállinger et al2007) are one way of acknowledging the simultaneous coexistence of two different majorities, a represented one and a factual one.

The two majorities do not, then, necessarily go hand in hand. And the more time has passed since the last elections, the greater the distance between the two majorities tends to be. American constitutional theorist John Ferejohn claims that the judiciary, and especially the highest courts, may have an important democratic role to play in bringing these two often opposing majorities together into deliberation about contentious issues (Ferejohn – Pasquino 2010). The judiciary could, for instance, signal to the elected branches that legislation should be updated to correspond with the views firmly held by the factual majority. The courts often occupy a privileged position from which they can observe the real-life consequences of outdated legislation, like the suffering that an unnecessarily rigid interpretation of social welfare law can cause to those in need of help. In this sense, the elected branches may even be dependent on the information that the judiciary transmits from the grassroots level. In this example, the judiciary would hold that a less rigid interpretation corresponds with developments in ‘public opinion’ that the political elites may be alienated from.

But often the deliberation is directed by the judiciary into the opposite direction. The courts namely often make unpopular decisions to pave the way so that public opinion may find official political positions more acceptable. For example, the 2015 US Supreme Court case Obergefell v. Hodges (576 U.S. 644 [2015]) had such a social function to the extent that it initiated a broad political discussion about same-sex marriages in a politically exceptionally divided country (e.g., Yoshino 2015).

A ‘democratic’ judiciary?

Allow me to finally sum things up and to bring these slightly disparate notes together into my main claims.

I started off with the general claim that, as far as inter-institutional relations go, we can only see what our theoretical premises allow us to see. So if we start off from a fairly standard liberal account including conventional notions of the separation of powers, we will also end up emphasising constitutional competences which do not necessarily give us a very nuanced account of what’s actually happening. So instead, I proposed an agonistic premise which, unlike standard liberal accounts, suggests that all inter-institutional relations are potentially conflictual even if disagreements don’t necessarily always actualise. And yet, the disagreements are there, albeit dormant.

Next, I discussed how powers are possibly separated among the main institutions in statist and transnational environments. One way of looking at recent developments is to conjecture that all three institutional persons of the ‘political trinity’ have the same goal of fulfilling a liberal – or possibly neoliberal – political programme. This single programme, in turn, is executed through a constitutional ‘division of labour’ where ‘separate institutions share powers’, to borrow an expression from political scientist Richard Neustadt’s well-known study of the American presidency (Neustadt 1990: x). So if all institutions strive to accomplish a single political agenda, no separation of powers actually exists making all claims of ‘checks and balances’ equally problematic. If there is no disagreement, the unitary ‘trinity’ will by necessity take on a totalitarian flavour.

A more likely account of recent developments is that we are gradually shifting from institutionally tripartite models of government to factually dualistic models where the executive-led elected branches – or, in other words, the governmental majority made possible by a weak parliament and a rigid notion of party discipline – where the elected branches are institutionally facing the judiciary. If legislative and executive powers are merged into one and concentrated into the hands of a single super-institution, and if the function of the legislature seems to be reduced to simply symbolising democratic values that don’t necessarily work in practice, then the judiciary finds itself in a new position from which it can rethink its political and democratic tasks. The missing ‘checks and balances’ between the legislature and the executive, as well as the factually non-existent or weak parliamentary scrutiny of the executive, create a democratic vacuum that needs to be filled. So judicial power may no longer be merely the application of laws in individual cases, but securing proactively that basic rights are respected as power concentrates into the hands of the executive-led elected branches.

Now whether the judiciary is willing and ready to accept this challenge is a completely different story.


Abel, Richard L. and Philip S. C. Lewis (1995) Lawyers In Society. An Overview. Berkeley, CA: University of California Press.

Bickel, Alexander M. (1986) The Least Dangerous Branch. The Supreme Court at the Bar of Politics. 2nd ed. New Haven, CT: Yale University Press.

Burbank, Stephen and Barry Friedman (2002) Judicial Independence at the Crossroads. An Interdisciplinary Approach. Thousand Oaks, CA: SAGE.

Bybee, Keith J. (2010) All Judges Are Political – Except When They Are Not. Acceptable Hypocrisies and the Rule of Law. Stanford, CA: Stanford University Press.

Cichowski, Rachel A. (2006) ‘Courts, Rights, and Democratic Participation’, Comparative Political Studies, Vol. 39, No. 1: 50-75.

Cichowski, Racjel A. and Alec Stone Sweet (2003) ‘Participation, Representative Democracy, and the Courts’, p. 192-220, in Bruce E. Cain, Russell J. Dalton and Susan E. Scarrow (eds), Democracy Transformed? Expanding Political Opportunities in Advanced Industrial Democracies. Oxford: Oxford University Press.

Connolly, William E. (2002) Identity\Difference. Democratic Negotiations of Political Paradox. Expanded ed. Minneapolis, MN: University of Minnesota Press.

Dalton, Russell J., Wilhelm Bürklin and Andrew Drummond (2001) ‘Public Opinion and Direct Democracy’, Journal of Democracy, Vol. 12, No. 4: 141-153.

De Sanctis, Lisa Marie (1996) ‘Bridging the Gap Between the Rules of Evidence and Justice for Victims of Domestic Violence’, Yale Journal of Law and Feminism, Vol. 8, No. 2: 359-407.

Dimelow, Stephen and Alison L. Young (2015) ‘Common Sense’ or Confusion? The Human Rights Act and the Conservative Party. London: The Constitution Society.

Ferejohn, John (1999) ‘Independent Judges, Dependent Judiciary: Explaining Judicial Independence’, Southern California Law Review, Vol. 72, No. 1: 353-384.

Ferejohn, John (2002) ‘Judicializing Politics, Politicizing Law’, Law and Contemporary Problems, Vol. 65, No. 3: 41-68.

Ferejohn, John A. and Larry D. Kramer (2002) ‘Independent Judges, Dependent Judiciary: Institutionalizing Judicial Restraint’, New York University Law Review, Vol. 77, No. 4: 962-1039.

Ferejohn, John and Pasquale Pasquino (2010) ‘The Countermajoritarian Opportunity’, Journal of Constitutional Law, Vol. 13, No. 2: 353-395.

Flinders, Matthew (2002) ‘Shifting the Balance? Parliament, the Executive and the British Constitution’, Political Studies, Vol. 50, No. 1: 23-42.

Friedman, Barry (2005) ‘The Politics of Judicial Review’, Texas Law Review, Vol. 84, No. 2: 257-337.

Gee, Graham, Robert Hazell, Kate Malleson and Patrick O’Brien (2015) The Politics of Judicial Independence in the UK’s Changing Constitution. Cambridge: Cambridge University Press.

Gordon, Robert W. (2004) ‘Professors and Policymakers: Yale Law School Faculty in the New Deal and After’, p. 75-137, in Anthony T. Kronman (ed.), History of the Yale Law School. The Tercentennial Lectures. New Haven, CT: Yale University Press.

Hamilton, Alexander, James Madison and John Jay (2008) The Federalist Papers. Oxford: Oxford University Press.

Honig, Bonnie (1993) ‘The Politics of Agonism: A Critical Response to “Beyond Good and Evil: Arendt, Nietzsche, and the Aestheticization of Political Action” by Dana R. Villa’, Political Theory, Vol. 21, No. 3: 528-533.

Horne, Alexander and Vaughne Miller (2015) A British Bill of Rights? Briefing Paper, Number 7193, 19 May 2015. London: House of Commons Library.

Joondeph, Bradley W. (2008) ‘The Many Meanings of “Politics” in Judicial Decision Making’, University of Missouri – Kansas City Law Review, Vol. 77, No. 2: 347-379.

Kant, Immanuel (1991) The Metaphysics of Morals [orig. 1797], p. 131-175, in Immanuel Kant, Political Writings. 2nd ed. Trans. H.B. Nisbet. Cambridge: Cambridge University Press.

Katz, Elizabeth (2015) ‘Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative’, William & Mary Journal of Women and the Law, Vol. 21, No. 2: 379-471.

Kelemen, R. Daniel (2012) ‘The Political Foundations of Judicial Independence in the European Union’, Journal of European Public Policy, Vol. 19, No. 1: 43-58.

Kelsen, Hans (1949) General Theory of Law and State. Trans. Anders Wedberg. Cambridge, MA: Harvard University Press.

Kmiec, Keenan D. (2004) ‘The Origin and Current Meanings of Judicial Activism’, California Law Review, Vol. 92, No. 5: 1441-1477.

Landes, William and Richard Posner (1975) ‘The Independent Judiciary in an Interest-Group Perspective’, Journal of Law and Economics, Vol. 18, No. 3: 875-901.

Lee, H.P. (2011) Judiciaries in Comparative Perspective. Cambridge: Cambridge University Press.

Lijphart, Arend (1999) Patterns of Democracy. Government Forms and Performance in Thirty-Six Countries. New Haven, CT: Yale University Press.

Lindquist, Stefanie A. and Frank B. Cross (2009) Measuring Judicial Activism. Oxford: Oxford University Press.

Locke, John (1988) Two Treatises of Government [orig. 1690]. Cambridge: Cambridge University Press.

MacCormick, Neil (1994) Legal Reasoning and Legal Theory. Oxford: Oxford University Press.

Malleson, Kate (2007) ‘Judicial Reform: The Emergence of the Third Branch of Government’, p. 133-150, in Andrew McDonald (ed.), Reinventing Britain. Constitutional Change under New Labour. Berkeley, CA: University of California Press.

Masterman, Roger (2014) ‘Rebalancing the Unbalanced Constitution: Juridification and National Security in the United Kingdom’, p. 209-227, in Fergal F. Davis and Fiona De Londras (eds), Critical Debates on Counter-Terrorism Judicial Review. Cambridge: Cambridge University Press.

Minkkinen, Panu (2020) ‘Agonism, Democracy, and Law’, p. 427-442, in Maksymilian Del Mar, Bernadette Meyler and Simon Stern (eds), The Oxford Handbook of Law and the Humanities. Oxford: Oxford University Press.

Montesquieu, Charles de Secondat baron de (1989) The Spirit of the Laws [orig. 1748]. Trans. Anne M. Cohler. Cambridge: Cambridge University Press.

Mouffe, Chantal (2013) Agonistics. Thinking the World Politically. London: Verso.

Neustadt, Richard E. (1990) Presidential Power and the Modern Presidents. The Politics of Leadership from Roosevelt to Reagan. New York, NY: Free Press.

North, Douglass C. and Barry R. Weingast (1989) ‘Constitutions and Commitment: The Evolution of Institutions Governing Public Choice in Seventeenth-Century England’, Journal of Economic History, Vol. 49, No. 4: 803-832.

Owens, John E. and Riccardo Pelizzo (2010) The ‘War on Terror’ and the Growth of Executive Power? A Comparative Analysis. Abingdon: Routledge.

Pállinger, Zóltan Tibor, Bruno Kaufmann, Wilfried Marxer and Theo Schiller (eds) (2007) Direct Democracy in Europe. Developments and Prospects. Wiesbaden: VS Verlag für Sozialwissenschaften.

Palmer, Ellie (2000) ‘Resource Allocation, Welfare Rights: Mapping the Boundaries of Judicial Control in Public Administrative Law’, Oxford Journal of Legal Studies, Vol. 20, No. 1: 63-88.

Pasquino, Pasquale (2003) ‘Prolegomena to a Theory of Judicial Power: The Concept of Judicial Independence in Theory and History’, The Law & Practice of International Courts and Tribunals, Vol. 2, No. 1: 11-25.

Pasquino, Pasquale (2013) ‘Classifying Constitutions: Preliminary Conceptual Analysis’, Cardozo Law Review, Vol. 34, No. 3: 999-1019.

Piana, Daniella and Cristina Dallara (2015) Networking the Rule of Law. How Change Agents Reshape Judicial Governance in the EU. Farnham: Ashgate.

Ramseyer, J. Mark (1994) ‘The Puzzling (In)Dependence of Courts: A Comparative Approach’, Journal of Legal Studies, Vol. 23, No. 3: 721-747.

Renoux-Zagamé, M. F. (1998) ‘Le “Royaume de la loi”: équité et rigueur du droit selon la doctrine des parlements de la monarchie’, Justices. Revue générale de droit processuel, nº 9: 17-38.

Rogers, James R. (2001) ‘Information and Judicial Review: A Signaling Game of Legislative-Judicial Interaction’, American Journal of Political Science, Vol. 45, No. 1: 84-99.0

Rossiter, Clinton (2002) Constitutional Dictatorship. Crisis Government in the Modern Democracies [orig. 1948]. New Brunswick, NJ: Transaction Publishers.

Rüthers, Bernd (2014) Die heimliche Revolution vom Rechtsstaat zum Richterstaat. Verfassung und Methoden. Ein Essay. Tübingen: Mohr Siebeck.

Schlesinger, Arthur M., Jr. (1947) ‘The Supreme Court: 1947’ [The Supreme Court: 1947], Fortune, Vol. XXXV, No. 1: 73-79, 201-202, 204, 206, 211-212.

Schmitt, Carl (2005) Political Theology. Four Chapters on the Concept of Sovereignty [orig. 1922]. Trans. George Schwab. Chicago, IL: University of Chicago Press.

Schmitt, Carl (2007) The Concept of the Political [orig. 1932]. Expanded ed. Trans. George Schwab. Chicago, IL: University of Chicago Press.

Seibert-Fohr, Anja (2012) Judicial Independence in Transition. Dordrecht: Springer.

Sordi, Bernardo (2010) ‘Révolution, Rechtsstaat and the Rule of Law: Historical Reflections on the Emergence of Administrative Law in Europe’, p. 23-36, in Susan Rose-Ackerman and Peter L. Lindseth (eds), Comparative Administrative Law. Cheltenham: Edward Elgar.

Steffani, Winfried (1997) ‘Regierungsmehrheit und Opposition’, p. 125-151, in Winfried Steffani, Gewaltenteilung und Parteien im Wandel. Wiesbaden: Springer Fachmedien.

Stone Sweet, Alec (2000) Governing with Judges. Constitutional Politics in Europe. Oxford: Oxford University Press.

Stone Sweet, Alec (2007) ‘The Politics of Constitutional Review in France and Europe’, International Journal of Constitutional Law, Vol. 5, No. 1: 69-92.

Thomas, Cheryl (2005) Judicial Diversity in the United Kingdom and Other Jurisdictions. A Review of Research, Policies and Practices. London: The Commission for Judicial Appointments.

Tushnet, Mark (2008) Weak Courts, Strong Rights. Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton, NJ: Princeton University Press.

Vanberg, Georg (2001) ‘Legislative-Judicial Relations: A Game-Theoretic Approach to Constitutional Review’, American Journal of Political Science, Vol. 45, No. 2: 346-361.

Wenman, Mark (2013) Agonistic Democracy. Constituent Power in the Era of Globalisation. Cambridge: Cambridge University Press.

Whittington, Keith E. (2005) ‘“Interpose Your Friendly Hand”: Political Supports for the Exercise of Judicial Review by the United States Supreme Court’, The American Political Science Review, Vol. 99, No. 4: 583-596.

Yoshino, Kenji (2015) ‘A New Birth of Freedom?: Obergefell v. Hodges’, Harvard Law Review, Vol. 129, No. 1: 147-179.

Leave a Reply