[Editor’s Note: In this special post, Brazilian Supreme Court Justice Luís Roberto Barroso shares his notes from an address given to students at the Yale Law School on September 22, 2016. We are grateful to Justice Barroso for this contribution to I-CONnect. –Richard Albert]
—Luís Roberto Barroso, Justice, Supreme Court of Brazil; Professor of Law, Rio de Janeiro State University
1. It is a pleasure and an honour to be here and to share with you all some reflections on the roles of Supreme Courts and Constitutional Courts. I was an LL.M. student here at Yale in another life, from 1988 to 1989, and I have good memories from my time here, despite all the hard work. And my life was never the same again. I have been a Justice at the Brazilian Supreme Court since June 2013. The Court has played a decisive role in the preservation of the democratic institutions during these times of economic crisis and political turmoil. However, the argument I want to present here is more general, and not focused particularly on Brazil.
II. The Worldwide Prevalence of the American Model of Constitutionalism
2. The first two written constitutions in the world – the American one in 1787, and the French one in 1791 – led to two very different models of constitutionalism. In the French model, which spread across Continental Europe, the Constitution assumed, essentially, a political dimension, with no direct and immediate application or enforcement by the Judiciary. The great principle was the supremacy of the Parliament, and the laws were not subject to judicial (constitutional) review.
3. On the other hand, the American model of constitutionalism, at least since Marbury v. Madison (decided in 1803), was characterized by the recognition of a legal dimension of the Constitution, with the possibility of direct and immediate application and enforcement by all the organs of the Judiciary. The great principle here, since the beginning, was that of Constitutional supremacy, where judges and courts, and especially the Supreme Court, could exercise judicial review and, consequently, deny application of norms deemed inconsistent with the Constitution.
4. After the Second World War, the American model prevailed in most of the democratic world. Although the blueprint for the Constitutional Courts adopted in Europe differs from the American model in structure and procedure, the underlying concept is the same: the Constitution is endowed with supremacy and acts of the Legislature or the Executive that conflict with it can be invalidated by a court.
III. Mission and Roles of the Supreme Courts and Constitutional Courts
5. As we know, Constitutional Courts safeguard the supremacy of the Constitution. This essentially means that they:
(i) Ensure the majority rule (i.e. courts must defer to political decisions made by other branches of government);
(ii) Protect the rules of the democratic game (i.e. prevent majorities from changing the rules to perpetuate their own regime); and
(iii) Protect the fundamental rights of all, including those of minorities.
6. To realize these objectives, Constitutional Courts play three major roles:
(i) Counter-majoritarian: this is how constitutional theory refers to the fact that unelected judges can invalidate decisions from public agents chosen by the people;
(ii) Representative: this is the role that the courts exercise when they attend to the social demands that were not timely satisfied by majoritarian politics (in the United States, Griswold v. Connecticut and Lawrence v. Texas may be good examples); and
(iii) Enlightened: this is the role that Constitutional Courts exercise exceptionally, when they act against the will of Congress and even against the popular majority, with the purpose of protecting minorities and advancing history. Some American examples include Brown v. Board of Education, Roe v. Wade and, possibly, Obergefell v. Hodges.
7. Some of these ideas are controversial, but time and space constraints dictate that we leave this discussion for another time.
IV. The Judicialization of Life
8. One characteristic of current times, throughout the world, is the judicialization of life. In different countries, some of the major political, moral and social issues are having their final chapter decided before Supreme or Constitutional Courts. There are several causes of this phenomenon.
9. I point out three:
(i) After the Second World War, many countries realized that a strong and independent Judiciary was a necessary component for the preservation of democracy and protection of fundamental rights;
(ii) Despite the rise of democracy, the world underwent a certain disillusionment with majoritarian and representative politics; and
(iii) In relation to many issues, especially the morally controversial, the Legislature often cannot produce consensus or even decisions (same-sex marriage, abortion, assisted suicide, and embryonic stem cell research are good examples). In these cases, the Judiciary ends up having to create the law that will govern these matters.
10. In some countries, this judicialization of life phenomenon is enhanced by Constitutions which are more analytical, as is the case in Brazil, South Africa and India. In all of them – and especially in Brazil – there is an intricate and complex sort of litigation taking place: one involving the enforcement of welfare or social rights granted by the Constitution, in matters relating to health care, sanitation, access to education and other issues.
V. The Complexity of Modern Life and the Uncertainty of Law
11. Besides the institutional rise of the Judiciary and the accentuated judicialization of life, there is another phenomenon that increases the role of judges and courts. It is that, as societies become more complex, the Constitution and the laws lose their capacity to predict, in advance, solutions for all legal problems. That increases, in some measure, subjectivity and judicial discretion, as judges and courts have to apply increasingly vague clauses (indeterminate legal concepts) or abstract principles.
12. Some examples of real and unusual cases:
(i) Can a deaf-mute couple, through genetic engineering, choose to generate a deaf-mute child, so the child inhabits the same existential universe as they do?
(ii) Can a woman use the sperm of her dead husband, frozen in a sperm bank, to get pregnant?
(iii) Or even, referring to a case that occurred in São Paulo: a woman reached the top of a liver transplant list and received the organ. The list continued, and a man rose to the top position. When a new liver became available and was ready to be delivered to the first in line, the female recipient of the previous liver suffered a transplant rejection and demanded a new liver. Who enjoys the right under these circumstances? Note that in this case the judge will be playing God, deciding who is to live or die.
13. The common theme among all of these situations is the absence of a “ready made” solution available in our legal arsenal, one that can be conveniently plucked from the shelf by a judge. In all of these cases, the judge will have to determine the best solution, guided by very abstract norms and exposing his or her arguments with transparency. Legitimacy here will not be rooted in a previous decision by the legislature, but in the court’s reasoning and its capacity to be understood and accepted. The same is true when there are collisions of constitutionally protected values or interests, such as the conflict between: (a) freedom of speech v. right to privacy; (b) freedom of contract v. drug price control; (c) environmental protection v. construction of hydroelectric plants. These are situations that occur quite often, assuming different forms and features in each country.
VI. Worldwide Examples of Judicialization
14. Examples of the judicialization of political, economic or moral issues are found all over the world, in cases of high visibility:
(i) In Brazil, it was the Supreme Court that: (a) established the procedure that was to be followed in the impeachment of the President of the Republic; (b) expelled the Speaker of the House from his seat, and (c) paved the way for same-sex marriages;
(ii) In the United States, it was the Supreme Court that: (a) decided the election of 2000; (b) recently validated a drastic interference in the California prison system; and (c) secured the right to same-sex marriage;
(iii) In Israel, it was the Supreme Court that gave the final word on the constitutionality of building a wall on the border with the Palestinian territory;
(iv) In South Korea, the Supreme Court restored to office the President who had been ousted by an impeachment process;
(v) In Mexico, it was the Supreme Court that facilitated the legalization of marijuana;
(vi) In South Africa, the Constitutional Court held that the law imposing the death penalty was unconstitutional.
15. As it turns out, simply put, the world is largely judicialized and Supreme Courts and Constitutional Courts are left to decide cases with great political, social and moral repercussions. This is a new situation that disrupts the traditional view of the Separation of Powers and raises important discussions about democratic legitimacy. Although the border between law and politics has become much less clear in recent decades, the separation between one thing and the other remains essential for the idea of rule of law. Politics is the space of the majority’s will. Law is the space of reason, or more specifically, public reason. Despite the clear theoretical perception that law and politics are different, in the real world it is often not so easy to distinguish between the particular sphere of constitutional interpretation and that of legislative choice.
16. On another occasion, we will discuss these issues. For now, it’s time to conclude.
17. The judiciary, generally, and particularly the Supreme and Constitutional Courts, are taking on an increased political and institutional role in many parts of the world. We must deal with this phenomenon with maturity and great balance, to avoid both the failure to intervene in decisive moments, as well as the undue politicization of judicial bodies. Life intersperses prudence and daring, and it is not always easy to find harmony in it, the middle way. But that is the path we must take. Supreme and Constitutional Courts should neither be excessively timid nor arrogant. And they must be capable of capturing social sentiment.
18. I like to emphasize this role with a little parable. In life, we are all acrobats trying to find the proper balance. This is true for everyone, for people and institutions, for those on stage and those in the audience. To live is to balance on a tightrope, making choices every step of the way. Sometimes, someone in the audience may think that the acrobat is flying. There is not much of a problem with that, because life is made of certain illusions. But the acrobat, he must know, all along, that he is balancing himself. Because if he thinks he is flying, he will fall. And in real life, there is no safety net.
19. Constitutional jurisdiction, judicial review, and powers of Supreme and Constitutional Courts must be exercised in the same way that life must be lived: with a moral compass, determination and humility. Thank you very much.
Suggested Citation: Luís Roberto Barroso, The Roles of Supreme Courts and Constitutional Courts in Contemporary Democracies, Int’l J. Const. L. Blog, Oct. 21, 2016, at: http://www.iconnectblog.com/2016/10/the-roles-of-supreme-courts-and-constitutional-courts-in-contemporary-democracies
 It should be noted that European Constitutional Courts were inspired by Germany, as the repercussions of the pre-war Austrian precedent did not extend beyond its border.