Towards an Anti-Bully Theory of Judicial Review

—Yaniv Roznai, Harry Radzyner Law School, Interdisciplinary Center (IDC) Herzliya ^*

In an environment of democratic erosion, courts are under political pressure. Populist projects of constitutional change modify the rules for appointment and jurisdiction of bodies like constitutional courts in an attempt to weaken their independence, pack them and even capture them. Often, courts are threatened in ways that makes it difficult for them to ‘do their job’ without being worried about possible overrides and political backlash. For example, in 2015, reacting to a judicial decision not to his liking, a Member of Knesset from the Jewish Home Party of the governing coalition, Motti Yogev, was interviewed on Television and said “A D9 [bulldozer] shovel should be used against the High Court… We, as the legislators, will make sure to restrain the judicial rule in this country – the tail that wags the dog.”[1] In the UK, after the abovementioned Cherry/Miller 2 case, Tory MP Desmond Swayne was interviewed on Television and after claiming that the Supreme Court “well overstepped the mark” in its prorogation judgement, continued to claim that “We should have a commitment to abolish the Supreme Court”.[2] Should judges take into consideration such a possible political ‘backlash’ when they adjudicate?

There is no doubt that judges worry about possible political ‘retaliation’ in reaction to their rulings. Judges, as the literature on judicial behavior suggests, consider the attitudes of other actors in a strategic manner. Should – and if so, to what extent – courts consider the political ramifications of their decisions (the ‘political backlash’) concerning sensitive issues that are crucial for the democratic order? Is it better for them hunker down in order to survive, or instead to confront the political branches in order to try and save democracy while risking retaliation or even their own destruction?

In order to analyze these questions, I use the analogy of anti-bullying tactics to evaluate the different models of judicial reactions to political pressure. One of the best ways to deal with bullying is to avoid it. Courts often have tools to control their dockets, but assuming a court cannot avoid the case, and must make a decision, there are three main possible models: The first model is confrontation. Researchers from social psychology demonstrate how this may be the harshest scenario for someone dealing with a bully; it usually makes things worse. As bullying researcher Marano says, “fighting back is the worst defense”, as the bully is usual stronger and bigger.[3] It may possibly just bring an escalation that the judiciary is likely to lose.

The second model is ‘going down into the bunker’. The problem with this approach is that surrendering to the bully usually does not stop the harassment. The bullying continues and is often aggravated. It is true that in real life, time-span matters. The bully might leave school, or the workplace, and life can return to normalcy. Likewise in political life, time matters. In their research, Dixon and Issacharoff demonstrate how deferral in judicial decision-making can be a useful strategy in the long term – “Living to fight another day proves to be an attractive option in judging as in all matters of statecraft”.[4] In the short term, hunkering down in difficult times may avoid backlash but produces bad outcomes which would taint the judicial reputation for decades to come. One can just think of the discredited legacy of Korematsu v. United States. More importantly, the problem with such an approach in the context of populism and democratic erosion is that if political measures to capture democratic institutions are not prevented early enough, it may be too late to stop them at a later stage. Democracy has already been eroded or even collapsed. As Mattias Kumm recently stated in an interview: “courts were not successful” when they attempted to “become strategic actors and tried to retrench, back down… and go into a [metaphorical] bunker… to weather the storm.” Thus, Kumm urges courts to resist “the illusions they can save the institution by hunkering down.” This, he suggests, often simply allowed for antidemocratic political players to ‘run ragged on the system’, harming and modifying it irreversibly.[5]            

The third model is business-as-usual. When the bully comes, stand firm. As one expert on anti-bullying says, “Bullies lose their power if you don’t cower. … They admire you for speaking with self-assurance and confidence. So, when they bombard, don’t counterpunch. Rather, win them over with your strong, firm, courteous demeanor.”[6] This is different from the first and second models, as it does not ask to change behavior to a more aggressive or passive one. As Kumm explains: “when under pressure from increasingly aggressive executive and legislative branches, the judicial branch’s best option is to stick to its guns and simply do its job as it usually would.”[7] The gain of persisting to issue ordinary judicial rulings is that it “help[s] motivate forces which can fight.”[8] Furthermore, while the political branches may retaliate or refuse to comply with the judicial decision or override it, the court’s ruling destroys the constitutional legitimacy of the measure being taken.[9]

Of course, not all bullies are the same, and their reactions may be different. The ‘business-as-usual’ model may only be effective in a certain level of functioning democracy. The ability to successfully face a bully also depends on whether there are other kids in the playground and what their likely reaction will be. Just as when facing a bully, the role of third parties is important, one cannot examine courts as standing alone. As Tom Ginsburg remarks, “courts are not great heroes here. … Courts operate by providing high-quality information to publics and elites. But the actions taken to protect democracy from erosion is taken by other actors, not courts themselves.”[10] Judicial independence, whether the court enjoys long standing legitimacy, how strong and supportive civil society or the opposition are, and the stage and state of democracy in the country, may all be relevant factors for the success or failure of the model.  

It is true that courts cannot save democracy on their own. But when courts exercise their full authority to protect democracy, at the very least they can help to save it.

Suggested citation: Yaniv Roznai, Towards an Anti-Bully Theory of Judicial Review, Int’l J. Const. L. Blog, Dec. 21, 2019, at: http://www.iconnectblog.com/2019/12/towards-an-anti-bully-theory-of-judicial-review/

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* The full argument appears in Yaniv Roznai, ‘Who will Save the Redheads? Towards an Anti-Bully Theory of Judicial Review and Protection of Democracy’ (November 16, 2019). Available at SSRN: https://ssrn.com/abstract=3488474; This is part of a large project on constitutional amendment and defense of democracy led by Prof. Benito Alaez Corral. 

[1] Shimon Cohen, ‘MK Call to “Raze the High Court” Spark Knesset Ire’ Arutz Sheva (29 July 2015), http://www.israelnationalnews.com/News/News.aspx/198784

[2]  ITV News report, (25 September 2019), https://www.itv.com/news/2019-09-25/mps-return-to-westminster-after-bombshell-legal-ruling/

[3] Cited in Kathleen Winkler, Bullying: How to Deal with Taunting, Teasing, and Tormenting (Enslow Publishers, Inc, 2005), 77.

[4] Rosalind Dixon & Samuel Issacharoff, ‘Living to Fight Another Day: Judicial Deferral in Defense of Democracy’ (2016) Wisconsin Law Review 683, 731.

[5] See Kumm’s interview in: Yonah Jeremey Bob, ‘When under pressure, judges should not back off from doing their job’ Jerusalem Post (30 May 2019), https://www.jpost.com/Israel-News/When-under-pressure-judges-should-not-back-off-from-doing-their-job-591041

[6]  Amy Cooper Hakim cited in F. Diane Barth, ‘6 Smarter Ways to Deal With a Bully’ Psychology Today (07 February 2017), https://www.psychologytoday.com/us/blog/the-couch/201702/6-smarter-ways-deal-bully

[7] Ibid.

[8] Ibid.

[9] Lech Garlicki, ‘Constitutional Court and Politics: The Polish Crisis’, in Christine Lanfried (ed.), Judicial Power: How Constitutional Courts Affect Political Transformations (Cambridge University Press, 2019), 141, 160.

[10]  Tom Ginsburg, ‘The Jurisprudence of Anti-Erosion’ 66 Drake Law Review (2018), 823, 840.