The power of a ‘relatively activist’ judiciary

In my inaugural lecture from May 2017 (introduced in Finnish here), I tried to argue for a slightly modified notion of judicial power. Section 99 of the Constitution of Finland (731/1999) seems to understand a ‘separated’ judicial power as not much more than the courts’ exclusive duty and right to ‘administer justice’, that is, to apply the law in individual cases. This deceptively clear-cut definition was recently reduplicated in Article 3 of the Courts Act (673/2016) which, in turn, makes a direct reference to the powers of the judiciary as they are defined in the Constitution. There is little about the courts’ role in the general control of the constitutionality of the activities of the political branches, although Section 106 of the Constitution did specifically create a new duty for the courts to abstain from applying primary legislation that is ‘in evident conflict’ with the constitution. The Finnish tradition of constitutional review has traditionally emphasised the role of parliamentary preview preferring a more restraint understanding of judicial power.

In my inaugural lecture, I wanted to suggest that such a simplified notion of a ‘deferential’ judiciary may be making way for a more proactively tuned idea of what judicial power is and could be. A few general observations supported my claim. First, ever new areas of social life had been brought under state or transnational regulation. This, in turn, meant that the duties of the courts to adjudicate had consequently expanded, as well. So, for example, the state had through regulation taken on new obligations to provide for welfare services that, if left undelivered, would enable claims from dissatisfied ‘clients’. Second, the primacy of EU legislation had, to quote my predecessor Kaarlo Tuori, given new prominence to a requirement of ‘normative coherence’ in the adjudication of national courts in addition and alongside the more traditional notion of ‘logical consistency’ (see Tuori 2011: 145-172). So, for example, the authority of ECtHR jurisprudence certainly gave national adjudication a certain principle-based tint that prioritised interpretations that were unambiguously compatible with constitutionally embedded human rights.

The University media services wrote a short interview piece that was meant to function as an introduction to my lecture. Perhaps unaware of the rather obvious reference to popular culture, they decided to give the interview the title: ‘The judiciary says “no”!’ Implying that the courts that had traditionally taken a democratic backseat and been content to merely apply laws passed by the legislature may on occasion feel reluctant to do so in the future. To me, it was a question about how poorly developed the Finnish notion of a separation of powers was, especially in light of the parliamentaristic emphases of the 1999 Constitution, and how, as a consequence, the potential complexities of judicial power had never really been investigated. The constitutional definition of judicial power seemed almost like a tautology. Neither the inaugural lecture nor the interview attracted much attention, and the same can be said about the two academic articles that I had written on the subject in Finnish (Minkkinen 2015; Minkkinen 2016). The whole idea of ‘judicial activism’ in any shape or form was apparently just too far-fetched.

Constitutional traditions vary. And even if similarities can be detected here and there, there are good reasons to steer clear from the universalising excesses of mainstream constitutional theory. But we should be allowed to extract general arguments from some specific court cases even if they originate from jurisdictions other than our own.

Photo: Neil Hall/EPA-EFE/Shutterstock
Anti-Brexit campaigner Gina Miller (C) speaks to media as she leaves the Supreme Court after the ruling on 24 September 2019.

R (Miller) v The Prime Minister and Cherry and others v Advocate General for Scotland ([2019] UKSC 41) is such a case. It is, of course, a landmark case for several UK-specific reasons. But here I am more interested in its general implications that concern the role of the judiciary in neoliberal democracies. Already at the Supreme Court hearings, legal representatives for the Government had argued that proroguing Parliament was a controversy for politicians to settle, and that judges should think twice before ‘entering the political arena’. Following the ruling, disappointed Brexit-supporting commentators further rhetorically suggested that UK constitutional culture had entered a new era, and that the role of the judiciary should, perhaps, be re-modelled more on the American ideal with Supreme Court justices appointed by the executive after political hearings.

Much of this is, of course, merely a rehashing of age-old ‘law/politics’ controversies. But in trying to outline this new idea of judicial power that I had in mind, I wanted to address the controversies in a few interrelated ways.

The first is what one could, perhaps, call the ‘epistemic fallacy’. An argument persuading the judiciary to refrain from entering the realm of politics assumes that what is political can be convincingly distinguished from what is properly legal. In the light of, for example, the Finnish constitutional norms in question – and any subsequent legislation that refers back to the constitution – no such criterion of distinction has been provided. Hence we cannot ‘know’ what is law and what is politics. In fact, the definitional tautology of judicial power seems to work the other way around: whatever the courts take on as the ‘administering of justice’ falls under the constitutional category of judicial power. A disagreement in substance with other branches of government (like the one in the UK Supreme Court case) does not alter that. If the court itself decides that something is justiciable, then it by definition belongs to the realm of the law and judicial power. In the German context, one could, perhaps, run such a dispute between constitutional branches as an Organstreit case in the Federal Constitutional Court, but in this case no such mechanism exists.

A second point referred to the ‘relative’ nature of judicial power. As one third of the trias politica, the judiciary uses a power that is supposedly ‘separated’ from the powers used by the two other ‘persons’ of the trinity. The separation of powers doctrine that we claim to extract from the writings of a Locke or a Montesquieu is premised on the idea that concentrating too much power into the hands of a single branch will potentially lead to authoritarian tendencies. Hence ‘checks and balances’ (even though the reality of everyday government may look more like powers ‘shared’ than ‘separated’). Over the last few decades, and in most neoliberal European democracies, we have, however, witnessed the gradual concentration of power in the executive branch leaving the legislative branch, the supposed primus motor of democratic governance, more into the sidelines. There may be several reasons for this development. In some cases, it may have had to do with the terrorist attacks of 2001 promoting security into an overriding constitutional principle, while in others, it may have simply been a reflection of traditional tripartite designs gradually morphing into efficiency-oriented and ‘managerialist’ Westminster models where the executive acts like a parliamentary CEO pushing for a particular legislative agenda.

Whatever the reasons, this shift strengthening the power of the executive at the expense of the legislature has also had an effect on the ‘balance’ that a separation of powers implies. One could, perhaps, argue that the shift has created a deficit or a democratic vacuum that the judiciary has been in a position to fill. In other words, we are not really witnessing a rise in judicial activism per se, or at least not in activism that would be motivated by the political ambitions of the judicial actors themselves. The overall changes have more to do with the relative power of the judiciary increasing as it takes on duties relating to democratic scrutiny that a now weakened legislature was previously primarily responsible for. So, for example, the factual inability of the legislature to authoritatively assess the legitimacy of the executive’s political agenda opens possibilities for the judiciary to strengthen its own democratic role.

My third point wanted to find a plausible theoretical explanation for these changes, in so far as they had actually taken place. Research requires recorded data, and my argument would have made more sense if I could have presented more cases like Miller 2 to support my hypothesis. Because if we simply look at available and published court cases, we would not be able to detect many instances of open disagreement between the judiciary and the political branches. For the most part, the judiciary does seem to play along in a well-mannered way. But judicial power seldom manifests itself as open confrontation. Instead, courts exercise a more subtle authority, and one important manifestation of that authority is the judiciary’s ability to temper government without actually having to intervene. So instead of actual confrontations, we have potential ones. The potentiality of the judiciary confronting the executive produces a fragile equilibrium of sorts that one could, following deterrence theory, call a ‘balance of fear’: the executive refrains from excesses because it is reluctant to deal with the reaction of the courts.

The final point in this chain of arguments was a related development. I wanted to look at some of the ways in which a modern judiciary had taken on a more proactive role in democracy, something that it had, perhaps, previously shunned away from. So how does a judiciary, then, exercise its ‘enhanced’ socio-political authority if the definition of judicial power had nevertheless remained unchanged?

One response was the media which has – and with good reason – also been called the ‘fourth branch of government’. One task of the ‘fourth branch’ is to contribute to democratic scrutiny within the same ‘checks and balances’. A democratic media would, then, also oversee the activities of the judiciary in ways that would secure the legitimacy of the courts’ activities. The media oversight of judicial activities can be illustrated with two metaphors. As a gatekeeper, the media decides what judicial information is circulated in the public domain, and it chooses the broader narrative frameworks around which this information is structured. The media will by and large decide which legal issues are socially and politically relevant and which are not. An example of the media gatekeeper’s influence would be the disproportionate prominence of criminal cases in mass media reporting. On the other hand, the media also operates as a watchdog that safeguards the integrity of government even in relation to the judiciary.

But the judiciary will also itself want to participate in increasing the transparency of its own decision-making. In this case, ‘media’ is understood literally as a set of tools and artefacts that the judiciary itself uses to ‘mediate’ a chosen message. To an ever larger extent, the judiciary is a media actor in its own right that attempts to control the flow of information and, consequently, also its own relationship with society. As media actors, the courts will have their own information strategies in which the outlets and principles of media output are defined, as well as designated media officers to execute these strategies. The resulting transparency will, no doubt, also contribute towards the public’s perception of enhanced democratic values, but the central motive for the judiciary to handle its own media is, nonetheless, its wish to influence information that may be misrepresented by a gatekeeper-media or to manage its own public image in relation to the watchdog-media. These are important ways in which the judiciary exercises its authority and, if my hypothesis was correct, elements in a more developed notion of judicial power.

To this extent, we have started to put together a corpus of norms, recommendations and guidelines on judicial media activities that have been issued either internally by the judiciary itself or externally by ministries or other government bodies. Our aim is to complete a comparative survey of such material before defining the more detailed research questions of a project. If you are a media officer for the judiciary or are otherwise involved in judicial media activities, please don’t hesitate to either be in touch or to leave your comments below.

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Minkkinen, Panu (2015) ’Valta, sen jakaminen, ja parlamentarismi – PL 3 §:stä Walter Bagehotin valossa’ [‘Power, its separation, and parliamentarism: on Article 3 of the Finnish Constitution and Walter Bagehot’], Lakimies, No. 1/2015: 3-27.

Minkkinen, Panu (2016) ’”Vähiten vaarallinen valtioelin”? Tuomiovalta, vallanjako ja demokratia’ [‘”The least dangerous branch”? On judicial power, the separation of powers, and democracy’], Politiikka, Vol. 58, No. 3: 224-237.

Tuori, Kaarlo (2011) Ratio and Voluntas. The Tension between Reason and Will in Law. Farnham: Ashgate.