Can constitutional courts be characterized as policy makers?

The theme of political role of judges is an old one in the literature of democratic countries. Indeed, Alexis de Tocqueville already tackled the “political importance” of the courts in his famous Democracy in America (1835). The reason is that there is inevitably, in modern democracies, “an area where law and policy will intersect” (Doyle, 1998:104). Most of judges only interpret the law in order to apply it to concrete cases brought to us, and if in this process the law is subject to changes, those are minor. It goes differently for constitutional judges which are in charge of checking the conformity of the law to the Constitution and thus of its interpretation.

Their decisions have major political implications, and it is not rare that they break down an act of legislation. As a consequence, constitutional judges are often qualified as undue policy-makers, to the extent that they are not elected representatives of the people. To what extent can the interpretation of the Constitution be considered as making policy, and what are the implications if it is the case?

The thesis defended here is that judges can be described as policy-makers in the sense that they have to take decisions on political issues and with political consequences, but that they are not truly political actors because their methods to take decisions and behaviors are proper to the Judiciary. Moreover, this increased political power is not undemocratic because it is needed. In order to demonstrate these points, I will first look at the inherent hybrid nature of constitutional courts, both judicial and political, with a growing importance of the political role over the judicial one. Then I will move on to the implications of this evolution, wondering if it should be considered as undemocratic.

[...] Finally, constitutional courts allow the citizens to have a certain control over their representatives outside elections time through constitutional judges, and even more when they have the possibility to seize themselves constitutional jurisdictions. What is important to notice here is that judges have no interest in abusing their power, because as soon as they do and become highly politicized, they are subject to public criticism just like politicians. As Doyle (1998:110) said, judges “must recognize that if the public were to perceive them as law makers [ ] their judicial independence would be at risk”. [...]

[...] [1]Rehder (2010:102) thus describes the much larger literature on the subject in the United States: the United States, the perception of courts as political actors is widely shared, and Political Science has dealt with this topic for decades. [ ] Scholars have investigated how judges make decisions and how they are appointed, how courts interact with the legislative branch, how interest groups make use of the legal system and so on (literature to be discussed below). By contrast, in Europe “courts and politics” as a research topic is relatively new and not really established.” Hughes C.E Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908, New-York: G.P. [...]

[...] * * * There are two main models of constitutional courts around the world that conventional wisdom explains by the distinction between common law and code law democracies (Rehder, 2010). The first and the oldest model is best represented by the United States, where there is no dedicated institution for constitutional issues and the Supreme Court is the competent institution in the final analysis. The second is the European model of dedicated constitutional courts. Those emerged in European countries only in the second half of the twentieth century in the wake of the Second World War[1]. [...]