University of Otago Law Festschrifts
Last Updated: 31 May 2019
The question in the title of John Smillie’s admirable essay sounds rhetorical.1 It sounds as though juristocracy—a situation “in which judges of the highest court have the final say on controversial issues of morality and social policy”2— is something that nobody wants, something that might be emerging as the unintended consequence of reckless action by lawyers and activist politicians who from time to time fancy their chances in constitutional litigation. They go to court in the hope that they can outflank the parliamentary majorities supporting legislation that they oppose. But they fail to realize that the overall tendency of this as a strategy by a number of groups, each independently pursuing its own separate campaign through the courts, is to permanently increase the power of the judiciary on a sort of one-way ratchet, each campaign making it a little harder than it was before to reverse the sapping of legislative authority. And so we need the warning that Smillie’s title presages: “Think about the overall tendency in terms of our structure of government; is juristocracy really what you want?” The impression given is that most people really believe in democracy; but they have failed to notice that the tactics they use in constitutional litigation are contributing inexorably to a “slide” in an anti-democratic direction.
In fact, despite the title, this is not the strategy of Professor Smillie’s essay. His aim is more straightforward. He wants to assemble the reasons there are that argue against the enhancement of judicial power: “I oppose this slide towards ‘juristocracy’ or ‘legal constitutionalism’,” he says.3 And he sets out the dangers and disadvantages of judicial rule in a clear and—to my mind—quite compelling manner. He says:4
Judicial rule is undemocratic; judges are not well-equipped to decide the issues that juristocracy commits to their care; juristocracy encourages an unhealthy activism in other spheres of judicial activity; and at the same time it undermines public confidence in the courts by politicizing the issues they confront.
* University Professor and Professor of Law, New York University Law
1 John Smillie “Who Wants Juristocracy?”  OtaLawRw 2; 11 Otago LR 183 (2006).
2 At 183.
3 At 183.
4 At 183-188.
These arguments, in the first part of Smillie’s essay, seem to assume that his readers are people who have thought too little about the dangers of enhancing judicial power, and he wants to show them the error of their ways.
I have a great deal of sympathy for these arguments, having tried myself over the past twenty-five years to get them a hearing, first in Britain and then in the United States.5 One of the joys of Professor Smillie’s essay is his adaptation of this case to conditions in New Zealand. Though it is “American-style juristocracy” that he opposes, his critique of it is particularly focused on New Zealand and he develops the arguments listed above with particular reference to New Zealand conditions. He also produces a quite incendiary list of suggestions for any New Zealand parliamentarians who can be brought to share his concerns.6 These suggestions include the repeal of the New Zealand Bill of Rights Act 1990 (NZBORA), a reduction in the number of judges, abolition of the Supreme Court, getting rid of the office of judges’ clerk, and proper career training for judges. (He acknowledges that these “recommendations for change are not likely to find a sympathetic ear in Wellington.”).7
Now, New Zealand is a little less far down the road—or down the slide or down the slippery slope—towards juristocracy than some other Commonwealth jurisdictions. The New Zealand courts operate a system of quite weak judicial review under the auspices of NZBORA—weak compared certainly to Canada and South Africa, and even compared to the United Kingdom. Canadian and South African courts have the power to strike down or refuse to apply legislation that conflicts with their respective charters of rights, a power mitigated only slightly in Canada’s case by a provision in the Charter of Rights and Freedoms which allows national and provincial legislatures to enact measures that will stand “notwithstanding” the Charter’s provisions.8 British courts, like New Zealand courts, do not have the authority to strike down or refuse to apply statutes that offend against fundamental rights, but British courts can issue Declarations of Incompatibility with regard to such statutes, and those Declarations have a
5 See Jeremy Waldron “A Right-Based Critique of Constitutional Rights” (1993) 13 OJLS
18; Jeremy Waldron Law and Disagreement (Oxford University Press,
Oxford, 1999) at 10 17, 211-312; Jeremy Waldron “Moral Truth and Judicial
Review” (1998) 43 Am J Juris 75; Jeremy Waldron “Judicial Review and
the Conditions of Democracy” (1998) 6 J Pol Phil 335; and Jeremy Waldron
Core of the Case against Judicial Review”  YaleLawJl 35; (2006) 115 Yale LJ
6 Smillie “Who Wants Juristocracy?”, above n 1, at 191-192.
7 At 193.
8 Canadian Charter of Rights and Freedoms, section 33(1) and (2). For a discussion of the quite
limited use of this clause, see Waldron “The Core of the Case against Judicial Review”, above n 5, at 1356-1357.
procedural effect, which is specified in the Human Rights Act.9 In New Zealand, to the extent that there is any authority to issue such declarations, it has been scrabbled together by judges acting on their own initiative;10 it remains intensely controversial; it is not authorized by NZBORA; and in any case such a declaration has none of the effects that Declarations of Incompatibility are supposed to have in the United Kingdom. Mostly what courts can do in New Zealand is, as Smillie says, “to read down a statutory provision so that it complies with the Bill of Rights Act,” choosing among available interpretations whatever interpretation will bring it into compliance with the Bill of Rights. This is something that South African, Canadian, British courts, and, for that matter, American courts can also do. So New Zealand remains near the top of whatever slide is taking us down to American-style juristocracy. (Perhaps the Australians are perched even further up the slippery slope than we are.) My point is that there is a long way to go which is not to say that the distance might not be covered quickly in some sort of avalanche sponsored by ambitious judges and their academic admirers.
I wish Smillie had taken the opportunity to say something about these differences between the United States and the Commonwealth jurisdictions. Does he agree with Stephen Gardbaum that the latter define “a new Commonwealth model” (or an array of new models) of constitutionalism?11 Does he think this “third way”— third after traditional parliamentary sovereignty, on the one hand, and strong judicial review on the American model, on the other hand—is a viable alternative?
I ask this because I have wanted to argue in my work that weak judicial review on the British or New Zealand model is not subject to many of the objections that apply to strong juristocracy.12 Perhaps Professor Smillie disagrees. Perhaps he thinks these intermediate arrangements are already too unstable and represent too much of a concession to the advocates of full-blooded juristocracy. Certainly his discussion of the evils of juristocracy in New Zealand, such as it is, leave one with the impression that he thinks the bad effects of the poison pill are evident in very first and smallest dose. I wonder whether this doesn’t weaken the plausibility of his argument somewhat by positing an all-or-nothing struggle between juristocracy and parliamentary democracy.13
9 Human Rights Act 1998 (UK), §§ 4 and 10.
10 See Moonen v Film and Literature Board of Review  NZCA 329 and Taylor v Attorney-General  NZHC 1706.
11 See Stephen Gardbaum The New Commonwealth Model of Constitutionalism:
Theory and Practice (Cambridge University Press, Cambridge, 2013).
12 See Jeremy Waldron “The Core of the Case against Judicial Review”, above n 5, at 1354-1357.
13 Compare James Allan “Not in for a Pound — in for a Penny? Must a Majoritarian Democrat Treat all Constitutional Judicial Review as Equally Egregious?” (2010) 21 Kings Law Journal 233.
The question, you will remember, is: “Who wants juristocracy?” Professor Smillie returns an answer of sorts to an analogous question at the end of Part I of his essay:14
So who benefits from judicial enforcement of negative rights against the state? The benefits seem to be confined to three classes of persons.
It is an “analogous” question because “Who wants X?” is not quite the same as “Who benefits from X?” But if the latter question is given a broader reading than “Who is the formal beneficiary of X?” then the two are more or less the same. Unfortunately Smillie does not provide any further elaboration. Unless I am missing something, the three item list I have just quoted is all he offers. (Instead of explaining the three groups he mentions, Smillie proceeds immediately to the beginning of Part II of his essay and to a discussion of the proper role of courts in the face of social change.)
I would like to take on the task of elaborating Smillie’s list, because I think there is much to be learned from close and sustained consideration of the question “Who wants juristocracy?” As we shall see, the answers (and the reasons for the answers) for the most part do not reflect creditably on the case for enhanced judicial power. Smillie mentions three classes of people: criminals; articulate members of the professional class; and academics, lawyers, and judges. They are disparate in category and they do not all stand in the same relation to the judicial powers that this essay calls in question. I am going to say a little bit about each category, developing what I think are Smillie’s thoughts and offering various explanations of what is an apparently perverse preference, in each case, for juristocracy.
Smillie’s first category of beneficiaries—“criminals”—draws attention, albeit rather brutally, to those whose interests are supposed to be protected by the rights that both legislatures and courts are supposed to uphold. I believe we should be
14 Smillie “Who wants Juristocracy”, above n 1, at 189.
careful with this suggestion; I hope my analysis of it does not strike Professor Smillie as too pedantic or finicky.
If we consider the NZBORA, we can see that strictly speaking criminals, considered as such, are the intended beneficiaries of section 8 (the right not to be deprived of life), section 9 (the right not to be subjected to torture or cruel treatment), section 23(5) (the right of everyone deprived of liberty to be treated with humanity and respect for the inherent dignity of the person), and section 26 (the right not to be subject to retroactive penalties). If Taylor v Attorney-General is upheld, imprisoned criminals are also beneficiaries of section 12 (electoral rights).15 Criminal suspects, as opposed to convicted criminals, are also the intended beneficiaries of section 21 (prohibiting unreasonable search and seizure), section 22 (prohibiting arbitrary arrest and detention), section 23 (rights of those arrested or detained), section 24 (rights of persons charged), and the minimum standards of due process laid down in section 25. These sections all offer guarantees to persons in the two categories I have mentioned: criminal and criminal suspects.
The rights just mentioned purport to confer certain protections on people in the event they fall under suspicion or are convicted of a crime. Other rights provisions offer benefits to people generally—like freedom of religion (section 13), freedom of speech (section 14), and protection against discrimination (section 19).
Now, one can look at these rights in two ways: (a) they apply to everyone, though their application is conditional; (b) they only actually apply when there is a disposition in the community to persecute, silence or discriminate against a given set of people, so that it is only the victims of such disposition that they apply to. As a matter of fact, we can view the protections already mentioned that are afforded to criminals and criminal suspects in the same two ways: (a) the protections apply to everyone (e.g. everyone has a right to due process or a right to be treated with dignity if they are detained); or (b) they apply only to those who have already fallen under suspicion by the state.
Usually when we defend human rights, we invoke the first way of looking at them; they apply to and benefit everyone. But sometimes, when we want to disparage bills of rights, we might use the second characterization and say they only benefit those who are actually threatened by the practices that the right forbids.16 We
15 Taylor v Attorney-General  NZHC 1706: a decision of the High Court issuing a declaration that the disenfranchisement of prisoners is incompatible with NZBORA.
16 We acknowledge some interplay between the two characterizations, when we pay attention to the conditions under which people form their views about rights: we say, for example, that a liberal is a conservative who has been arrested (and, conversely, a conservative is a liberal who
might say, for example, that (a) everyone has the right to freedom of religion, but (b) only members of unpopular cults really benefit from the protection offered under section 13. Under characterization (b), we will say that bills of rights protect vulnerable minorities. And by the same token, under characterization (b), we might indeed refer to the NZBORA—or sections 21 through 27—as “a criminal’s charter.”17 (That presumably is what Smillie has in mind when he suggests that criminals are the beneficiaries of rights-based judicial review.) Under characterization (a), by contrast, if we were asked to single out the beneficiaries of the bill of rights, we would have to say “Everyone.”
I used to think the choice between characterizations (a) and (b) was analytically important;18 but I am now convinced it is largely a matter of emphasis or rhetoric.
Perhaps we should distinguish between the question “Who benefits from a bill of rights?” and the question “Who benefits from rights-based judicial review?” Even if we describe rights themselves in terms of characterization (a), still we should acknowledge that not every right-bearer has to go to court to vindicate his or her rights, and maybe what I have been calling characterization (b) is intended to focus specifically on those who do. The reason why we talk about criminals and criminal suspects as the beneficiaries of judicial review (under sections 21 through 27 of the NZBORA), as well as actively threatened minorities as the beneficiaries of sections 13 or 14, and those likely to be discriminated against as the beneficiaries of section 19, is that these are the people who might find it necessary to bring their rights-claims (the rights that everyone has in principle) before a court.
Of course, the fact that someone brings a case before a court based on NZBORA does not mean that they necessarily get any special benefits. The courts may rule against them, holding that they are not entitled to any protections or benefits greater than those that the legislature has already secured. It may even hold they are entitled to less—for example, if a particular category of apparently retroactive legislation is not recognized as such under section 26, or if a particular procedural safeguard is reckoned by the court not to be necessary to satisfy section 25 of NZBORA. Even critics of judicial review should remember that there are such things as conservative judges, who refuse to accept any interpretation of a rights-provision that is more generous than the one the text uncontroversially supplies. At best, courts presided over by these judges will “benefit criminals” only to the
has been mugged).
17 For this characterization of the Human Rights Act in the UK, see “Human Rights is a Charter for Criminals and Parasites” Daily Mail (England, 2 January 2016).
18 I explored a contrast like this, between special and general rights, in Jeremy Waldron The Right to Private Property (Oxford University Press, Oxford, 1988) ch 3.
extent that they insist on the latter being supplied with what the rights contained in NZBORA patently entitle them to. Beyond that, they offer no additional benefits at all.
My point is that in a system of judicial review, criminals are not necessarily guaranteed the protections they think they ought to have. Everything depends on what the judges decide and how they approach their task. I guess we can agree with Smillie to this extent—that criminals benefit from the opportunity to convince a court, even a court populated with conservative judges, that they ought to have more protection than the government has judged them to be entitled to. That opportunity may be itself a benefit, even if it is never consummated. But if we say this about criminals, we will have to say it about all rights-bearers—that is, about all of those who have an opportunity under a system of judicial review to argue for a more capacious understanding of rights they already have.
Smillie’s suggestion that criminals are the prime beneficiaries of juristocracy carries with it the implication that they may secure through judicial review, not only benefits they cannot otherwise get, but benefits they are not entitled to. On this view, the processes of ordinary political accountability secure for people all the rights they need and are entitled to; they don’t need extra protection from courts. Their rights are secured by aspects of our political process that already respect principles of liberty and give minorities a voice in ordinary political deal-making.
I would be a little cautious with this also. Some individuals and groups are not well favoured by legislatures: they are, to use the famous terminology of Justice Stone in the Carolene Products footnote, “discrete and insular minorities”— the targets of prejudice “which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”19 Smillie probably has doubts about using this as a general template for understanding minority rights; so do I.20 But any general account of the value or otherwise of judicial review ought to include a sober assessment of those cases (whether many or few) where political circumstances make it unlikely that minorities will be able to secure their rights through the ordinary political process.21 Given the force and frequency of irrational electoral appeals to the fear of crime, it is likely that Smillie’s “criminals” will be in this category in many political systems.
19 United States v Carolene Products Co  USSC 104; 304 US 144 (1938) at 153, n 4.
20 For a general argument based on the Carolene Products footnote, see
John Hart Ely Democracy and Distrust: A Theory of Judicial Review
(Harvard University Press, Cambridge, 1980).
21 See also Waldron “The Core of the Case against Judicial Review”, above n 5, at 1403-1406.
Smillie’s second category comprises “[a]rticulate, well-educated members of the professional class with the time and resources to organize and fund litigation to protect or advance sectional interests.” Sometimes the “sectional interests” advanced by these groups will be the interests of the groups’ members (in which case the analysis just given will apply); sometimes, though, the groups will apply articulate and well-educated pressure to advance the rights and interests of people other than their own members or rights and interests that their members have only potentially or conditionally (along the lines of characterization (a) in the previous section). Either way, there are things to be said under this heading that have to do with political ethics in a very broad sense: I mean the justifiability and fairness of the tactics and opportunities that judicial review opens up for those sections of society who are better equipped to take advantage of them.
Using the opportunities for advocacy and pressure that a political system makes available is not often seen as a question of political ethics. Surely political action is ethical in an open political society whenever it conforms to the rules that are supposed to structure the society’s politics. People may ask: “If judicial review has been made available, what is wrong or unfair about using it?” If it were not available, then people would have to use electoral means to advance the causes they believe in; but if the creep towards juristocracy opens up new possibilities for advocacy and political action, who can complain when these opportunities are taken advantage of? That is what I would expect members of this second class of juristocracy-beneficiaries to say in response to Professor Smillie’s criticism.
But I am on his side on this one. Judicial review, where it exists, does not come into existence by magic. It is itself a subject of advocacy: those who expect to benefit from it will argue that it ought to be instituted in societies where it doesn’t already exist; and they will be expected to defend it against proposals like those in Professor Smillie’s essay in societies where, even in a weak form, judicial review has already come into existence. So we have to consider the ethics of this advocacy. Think of an analogy. In some countries—the United States is the best known example—corporations are permitted to lavish enormous spending in the political process to support causes and candidates they believe in. This gives them what many regard as an unfair political clout that distorts the ordinary political process. Now a corporate contributor may say—along the lines of the previous paragraph—that it is not unfair for it to make contributions that the electoral system permits. In a very narrow sense, that is right. But the rules permitting such lop-sided corporate contributions themselves came into existence as a result of lobbying by corporations among others. To put it crudely, they wanted to distort
the political process; they sought unfair advantages over ordinary individuals and groups. And that is where the ethical questions arise.
So: when groups in Smillie’s second category advocate in favour of setting up or sustaining judicial review, what exactly is unfair about their position? Basically what they want is the establishment of a structure for political decision-making that is not disciplined by the fairness norm of political equality in the way that electoral processes are disciplined—or not disciplined as much by political equality, or not disciplined by political equality in the same way.22 In a democracy, majoritarianism works on the basis that each adult person has a voice in political decision-making. Ideally each person’s voice counts for as much as possible, constrained only by the requirement that it not count for more than anyone else’s voice. So, any initiative that is proposed has to compete for the allegiance of as many voices as possible, on the understanding that each voice sounded in its favour may be matched by a voice sounding against it. Not everyone can prevail in this process, but each voice is respected. No one is permitted to proceed on the basis that some of the voices raised, for example, against the proposal in question do not matter or do not count. In the deliberative stage of democracy, each voice deserves a hearing and, if possible, an answer; in the decisional stage, each voice counts for one and no one for more than one.23 This regimen of equality is organized in the setting up and operation of an electoral system, in the rules for the franchise, in districting and the determination of the size of various constituencies (so as to ensure that each representative stands for the same number of potential votes), and in the scrupulousness with which individual votes are tallied. (It is also reflected in the scrupulousness with which voices are respected and votes are counted in the legislature as well as in the electorate.)
Pressure for the setting up of a system for judicial review characteristically arises from groups that are dissatisfied with the results of a process disciplined in this way. They complain that so long as the rules for political decision-making are majoritarian, they cannot win against those of their fellow citizens who oppose the position that they advocate. They talk about “the tyranny of the majority”—a
22 For a fine discussion of political equality as a value, see Charles Beitz Political Equality: An Essay in Democratic Theory (Princeton University Press, New Jersey, 1989).
23 The adage “Everybody to count for one, nobody for more than one” is usually attributed to Jeremy Bentham. However, it is surprisingly difficult to find a source for the Bentham slogan. David G. Ritchie observed, in his 1903 book Natural Rights: A Criticism of Some Political and Ethical Conceptions (Swan Sonnenshein, London, 1903) at n 249 that the phrase is known from its quotation by John Stuart Mill in Chapter V of Utilitarianism. “The maxim seems to belong” Ritchie says, “to the unwritten doctrine of the Utilitarian master.”
phrase that rolls rather too easily off the modern tongue, in my opinion24 meaning simply that a majority opposes them in ways that they disapprove of. But the phrase also carries an implication that there is this big oppressive thing called the majority unfairly ranged against them. But “the majority” is not a big thing; it is simply a number of voices, each of them equal in principle to theirs, registered in opposition to theirs in a process that counts all voices and counts them fairly. It is all too easy to be dismissive of majoritarian decision-making. It is in fact political equality in action. Those who demand non-majoritarian forms of decision-making are hoping that they will fare better in a system that does not accord equal respect to all voices or does not count them equally.
Of course the equality represented in majoritarian decision-making is formal, not substantive equality. Formal equality is sometimes spoken of dismissively as though it does not matter nearly as much as substantive equality. That denigration is not justified, particularly when we are searching for a fair and respectful way to organize a political process in which controversies about substantive equality can be settled. We want to find a way of respecting all voices on these matters even in the heat of their disagreement. We do this by abstracting from whatever issue of substance the parties are arguing about in order to define a fair way of settling their dispute. That’s the reason for the “formalism” of political equality.
Defenders of judicial review may say that there is an element of formal equality in rights-based litigation as well. They are right. There are rules that secure access to the courts for all, and that define fairness in litigation procedures. This equality is also formal. Denigration of formal equality as such may contribute to a sense that the differences between the formal equality involved in majoritarian decision-making and the formal equality involved in litigation do not matter. But they do. The access of a petitioner to the courts is the same as that of any other similarly-placed potential litigator, but there is no effort to secure any sort of political equality so far as decision-making is concerned. (The judges in a multi-member panel are treated as equals and they characteristically use simple majority-rule to make decisions among themselves, but this is not grounded in any deep principle of fairness or respect to people as such.)25 The decision is made by three or five or nine unelected and unaccountable judges, rather than by a few hundred elected legislators, or millions of ordinary voters. Formal political equality (of litigator-
24 For a discussion of various meanings of “tyranny of the majority,” see Jeremy Waldron Law and Disagreement (Oxford University Press, Oxford, 1999) at 11-14 and “The Core of the Case against Judicial Review”, above n 5, at 1395-1398.
25 For an argument that no one knows what political equality and consequent majoritarianism among judges is based on, see Jeremy Waldron “Five to Four: Why do Bare Majorities Rule on Courts?” (2014) 123 Yale LJ 1692.
input) in the one case is not the same as formal political equality (of decisional authority) in the other case.
So, as I said, the fairness complaint against judicial review is that its defenders support and advocate for its establishment whenever they think they can do better for their views in a system unconstrained by the discipline of political equality on the decisional side than they can in a democratic system. Like the corporate donors who value a distorted rather than a fair political process, defenders of judicial review want a political process that will do an end run for them around majoritarianism and its egalitarian underpinnings.
It would be different if the advocates of judicial review were typically disenfranchised or treated unfairly in the ordinary political process. That would bring into play the points made by “discrete and insular minorities” at the end of the previous section. But the value of Smillie’s reference to the privileged professional and educational background of these advocates under heading (2) is that it highlights the particular form of unfair advantage being sought. Advocates for judicial review are usually people who are already very well-positioned in the political system: they are educated, they know how to use their vote, how to apply pressure, how to build coalitions, how to organize activist groups and so on. They have every opportunity to deploy the equal arrangements of the political system to their benefit. But when they lose, they would like to have a fall back process available to them that would give them even more advantages than this.
It is not just opportunism; it is also vanity. An articulate well-educated political actor usually wants to be thought of as doing important work, work that makes a difference to the world, a difference which is traceable to him. From this point of view, ordinary democratic politics is somewhat unappetizing. The differences made by individuals are much harder to trace in the democratic process. There one acts collectively with millions of others, and an individual citizen can seldom bolster his vanity by pointing to the vote he cast or the energy he contributed to a campaign to say “There is the difference I made.” With judicial review, however, a favourable result will stand forever with the litigant’s name attached to it.
As well as vanity and unfairness, the vice that is sometimes involved is impatience. It takes time to build coalitions and convince sceptical fellow citizens of the merits of one’s position, in a democracy that involves what Max Weber referred to as a “strong slow boring of hard boards.”26 Those who have limited patience for this may seek the quicker fix that a decision by courts can offer. The reason
26 Max Weber “Politics as a Vocation” in Hans Gerth and Charles Wright Mills (eds) From Max Weber: Essays in Sociology (Routledge, Abingdon, 1948) at 128.
why this impatience is a political vice is that it too shows a lack of respect for one’s opponents—as though one’s own certainty that a course of action is right were enough to justify by-passing the laborious process of winning a sufficient number of sceptical fellow-citizens to one’s side. The lack of respect is patent when the argument used to appeal to courts is a tendentious one of a scholarly kind. Commenting in 1999 on a case made by legal scholars for the Supreme Court to deal with the issue of same-sex marriage under constitutional auspices, Judge Richard Posner of the 7th Circuit remarked:27
The only thing wrong with these arguments is the tacit assumption that the methods of legal casuistry are an adequate basis for forcing every state in the United States to adopt a social policy that is deeply offensive to the vast majority of its citizens and to do so at the behest of an educated, articulate, and increasingly politically effective minority that is seeking to bypass the normal political process for no better reason than impatience.
(The passing of time allowed thirteen states to pass legislation or make constitutional changes that permitted same-sex marriage, but in the end the matter was settled in court in 2015).28 Patience is an underestimated virtue in politics and it is often characteristically absent from campaigns for judicial review. Consider Ruth Bader Ginsburg’s remarks on the American abortion decisions:29
The political process was moving [but] not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
Sometimes the patient processes of political deliberation and decision are necessary to reconcile those in opposition to a particular decision. At the end of the long Second Reading debate in the British House of Commons in 1966 on the Medical Termination of Pregnancy Bill, pro-life MPs, who could see that the vote was going to go against them, began paying tribute to the respectfulness with which their positions had been listened to and heard in that discussion. It may have been
27 Richard Posner The Problematics of Moral and Legal Theory (Harvard University Press, Cambridge, 1999) at 249. Compare the discussion in Jeremy Waldron “Ego-Bloated Hovel” (reviewing Richard A Posner The Problematics of Moral and Legal Theory) (2000) 94 NWULR 597.
28 And Posner changed his tune somewhat: see Richard Posner and Eric Segall “Justice Scalia’s Majoritarian Theocracy” New York Times (3 December 2015).
29 Ruth Bader Ginsburg “Some Thoughts on Autonomy and Equality in Relation to Roe v Wade” (1985) 63 North Carolina L Rev 375 at 385–386, as cited by Chief Justice Roberts in his dissent in Obergefell v Hodges 576 US ___ (2015), at 27 of the slip opinion.
mere politeness. But how many times did we ever hear anybody on the pro-life side pay tribute to the attention and respectfulness with which her position was discussed, say, by the Supreme Court in Roe v Wade?30 As Chief Justice Roberts remarked in the 2015 same-sex marriage case:31
Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. ... Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.
A final fault worth mentioning is the inability to recognize reasonable disagreement on matters dear to the advocate’s heart. We all hold strong views about rights. Unfortunately we disagree on many of these issues. Sometimes the disagreement is traceable to prejudice or corrupt interest, and for those cases advocates may be justified in their impatient dismissal of their opponents’ ideas. Or sometimes, it may involve disagreement between one set of people taking a moral stance and another set of people taking their stand on some other non-moral ground like economic efficiency. But for most cases, there are strong well-thought-through moral opinions on both sides. People disagree about what values are important, what their priorities are, what trade-offs to allow, and how to weigh and balance competing moral considerations; and they disagree about how to map the values onto the complex tangles of fact and speculation in each of the issues in question. These disagreements are not surprising, nor is there any reason to blame them exclusively on ignorance, bias, superstition or self-interest. The existence of moral disagreement is sufficiently explained by what John Rawls called “the burdens of judgment” concerning the matters under consideration.32 In Rawls’s view, it is not reasonable to expect that people’s views on complex and fraught issues of rights will always converge to consensus. And as Rawls also emphasizes, “It is unrealistic... to suppose that all our differences [on these matters] are rooted solely in ignorance and perversity, or else in the rivalries for power, status, or economic gain.” The issues involved are serious and complex and engage good-faith differences of perspective and experience. All this, one can see form the sidelines, as it were. But it seems to be the hardest thing in the world for people who take their own
30 See the discussion of the British parliamentary debate in Waldron
“The Core of the Case against Judicial Review”, above
n 5, at
31 Obergefell v Hodges 576 US ___ (2015), at 27 of the slip opinion (Roberts CJ dissenting).
32 John Rawls Political Liberalism (2nd ed, Columbia University Press, New York, 2005).
moralizing seriously to put themselves in the shoes of others who differ from them on these matters. But putting oneself in the others’ shoes, even if only for the sake of argument, is key to the ethics of procedure in a liberal democracy.
Smillie’s third category comprises “lawyers, judges, and academics.” Certainly, there is an overlap here with the educated advocates described under heading (2). The main distinction is that we are now talking about people who are in, or who fancy themselves to be in, positions of decisional power. Crudely, the idea seems to be that since juristocracy allocates power differently than representative democracy, those who are empowered under a system of judicial review can be expected to relish that power and to argue for its retention.
I suppose judges can be as power hungry as anyone involved in politics. It is worth noting however that this hunger for power does not seem to afflict all judges. Even in a system of strong judicial review, like that of the United States, there are judges who are very diffident about—well, that’s too mild: some are ferociously opposed to—exercising the final power of decision over moral and political issues on which citizens and their representatives disagree. Some of them are influenced in this by their awareness of citizens’ resentment of judges’ arrogation of this power. Consider, for example, Justice Antonin Scalia’s dissent in the great 1992 abortion case, Planned Parenthood v Casey.33 Discussing “the ‘political pressure’ directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions,” Justice Scalia advised his fellow-justices to consider “the twin facts that the American people love democracy and the American people are not fools.” He continued:34
As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments ... then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the
33 Planned Parenthood of South-East Pennsylvania v Casey  USSC 112; 505 US 833
34 At 1000-1001 (Scalia J dissenting).
Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.
The comment has to be understood in terms of the context of American constitutionalism, and Scalia is not an opponent of judicial review as such. But he is alert to the threat that it poses to democracy, not only by the empowerment of people (judges) who, in many cases, ought not to be so empowered, but also by the way in which juristocracy truncates affirmatively valuable processes of political decision-making. Again, a dissent from Scalia, this time from the gay marriage case of Obergefell v Hodges, makes the point quite well:35
Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to. Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.
A similar point was made by Chief Justice Roberts:36
Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before.
35 Obergefell v Hodges 576 US ___ (2015) at 2 of the slip opinion
(Scalia J dissenting).
36 At 27 of the slip opinion (Roberts CJ dissenting).
Of course, there are losers. “But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.”37
These are powerful sentiments, and we should not underestimate the extent to which they prevail among the judiciary in modern democracies. Still, Smillie is not wrong to notice that many modern judges rather fancy themselves as the heroes of political, constitutional, and rights-based reform.38
Smillie also mentions academics. Now the category of “academics,” particularly professors of law, is an interesting and variegated one also. In New Zealand as well as in the United States, academic voices have been raised against juristocracy. Professor Smillie’s voice is one, so is that of his former colleague James Allan, who now teaches at the University of Queensland, where he continues the struggle.39 But the temptation of juristocracy for law professors is very strong.40
Partly it is a question of inherent orientation. Most mainstream legal scholars turn almost instinctively to the courts as agents of the sort and scale of legal changes that they think themselves entitled to propose. In the United States at least, they are much less comfortable making proposals for legislative reform.
But it is also partly a question of vanity. Academics, at least as much as other political activists, are concerned to “make a difference.” Differences made by individual scholars are much harder to trace in the democratic process than in constitutional litigation. By focusing on courts as agents of change, a scholar can be or imagine himself as an individual participant among only a few dozen “Madisonian notables”41 in a process which bypasses the unflatteringly cluttered realities of democratic life. Never mind the patient and laborious business of assembling a congressional majority or getting someone elected: “I am a legal scholar; I know how to argue for direct action that dispenses with all that.” Heroic judges have sometimes made use of the arguments and briefs of heroic scholars, and that is immensely flattering. And flattering turns to fancy. In class-rooms and
37 At 27 of the slip opinion (Roberts CJ dissenting).
38 Compare Cass Sunstein Constitutional Personae: Heroes, Soldiers, Minimalists, and Mutes (Oxford University Press, Oxford, 2015).
39 James Allan “You Don’t Always Get What You Pay For: No Bill of Rights for Australia” (2010) 24 NZULR 179.
40 Much of what follows in these next few paragraphs is adapted from Jeremy Waldron “‘Dirty Little Secret’—Review Essay on Unger, What Should Legal Analysis Become?” (1998) 98 Colum L Rev 510.
41 The phrase is Roberto Unger’s in What Should Legal Analysis Become? (Verso Books, London, 1996) at 134.
in law review articles, legal academics “stand in the imaginative position of judges, or whisper, figuratively or literally, into their ears.”42 This is the culture of our law schools. And I think it is worth asking whether we are really doing American society a favour by teaching our students (and each other) that lawyers and legal scholars are at their most heroic when they figure out clever ways of using moral theory to trump the laborious business of legislative politics (building coalitions, getting the vote, and taking seriously the views of millions of ordinary people who want to have a say in the way their community is governed) in order to sustain the positions they feel most strongly about?43
In fact, of course, no one listens to the scholars. For Posner added that judges “work under time pressures that make them reluctant to engage with esoteric arguments presented in amicus curiae briefs” So the moralizing theorists end up writing mostly for each other.44
Still, Posner’s concern about the political culture of our law schools is entirely appropriate. In the United States, I see among our constitutional law professoriate an acute discomfort with democracy that shows up everywhere. As Roberto Unger pointed out, it shows up in:45
the ceaseless identification of restraints upon majority rule, rather than of restraints upon the power of dominant minorities, as the overriding responsibility of judges and jurists; in the consequent hypertrophy of countermajoritarian practices and arrangements; in the opposition to all institutional reforms, particularly those designed to heighten the level of popular political engagement, as threats to a regime of rights; in the equation of the rights of property with the rights of dissent; in the effort to obtain from judges, under cover of improving interpretation, the advances popular politics fail to deliver; in the abandonment of institutional reconstruction to rare and magical moments of national refoundation; in the single-minded focus upon the higher judges and their selection as the most important part of democratic politics; in an ideal of deliberative democracy as most acceptable when closest in style to a polite conversation among gentlemen in an eighteenth-century drawing room; and, occasionally, in the explicit treatment of party government as a subsidiary, last-ditch source of legal evolution, to
42 At 111.
43 Compare Waldron “Ego-Bloated Hovel”, above n 27, at 611.
44 Posner The Problematics of Moral and Legal Theory, above n 27, at
132 and 146. See also Waldron “Ego-Bloated Hovel”, above n 27, at
45 Unger What Should Legal Analysis Become?, above n 41, at 72-73.
be tolerated when none of the more refined modes of legal resolution applies.
Again, it may be an exaggeration to see this in New Zealand where legal scholarship has a somewhat stronger orientation to statute law than in other countries. But Smillie offers I think a salutary warning about the early stages of the infiltration of this anti-democratic culture in our academy’s celebration of the early stages of juristocracy.
There is a lot in Professor Smillie’s essay that I have been unable to do justice to. It ends with a fine account of the importance of social and economic rights, which are precisely those rights least likely to be vindicated through judicial review. I wish I had time and space to address this issue. But I must rest here. On the occasion of his retirement I offer these comments and this applause to John Smillie as the tribute of a fellow traveller and a friend, as well as a former student.