Judicial and legislative dialogue

There has been a flourish of scholarship on this issue, a lot of it comparative (Canada’s Notwithstanding Clause has received ample attention, for example). The term dialogue, in my opinion, was always somewhat of a misnomer, wishful thinking at best. Dialogue theorists have often attempted to put a positive gloss on the actual power struggles that occur between legislatures and courts, especially after a controversial constitutional ruling by the court.

That said, dialogic mechanisms do exist, and as a matter of institutional design, some countries have attempted to constitutionalize them. In addition to Canada’s Notwithstanding Clause there are also incompatibility declarations according to the British Human Rights Act; constitutional Amendment procedures can be considered a dialogic mechanism, and some argue that proportionality tests are a form of interbranch dialogue as well.

Be that as it may, it is interesting to look at the experience of countries that conduct their interbranch “dialogue”without a formal institutional mechanism designed for that purpose.
I am thinking here, of course, of the United States, which has an almost insurmountable amendment process and lacks something like Canada’s Section 33. Interestingly, between 1962 and 1987 there have been 27 attempts to enact a constitutional amendment allowing for congressional override of Supreme Court decisions, but to no avail.

Scholars in the U.S. have pointed to two different dialogic tracks. First, political mobilizations, social movements and civic engagement that, over time, succeed in convincing the Court to backtrack. Legislators, however, usually turn to other strategies. Among those are attempts to change the Court’s composition, introduce term limits, budgetary cuts, requirements of judicial supermajorities when invalidating legislation, and jurisdiction stripping statutes meant to combat the Court’s expansion (in the critics’ minds) into undesirable territory. In a recent article, Dion Farganis counts 360 “court curbing”proposals between 1937 and 2008. However, only three such attempts have been considered successful, per Professor Farganis.

This leads me, finally, to the point of this post. It seems that absent explicit institutional mechanisms intent on promoting legislative-judicial dialogue, what follows is a crude and unfocused attempt by legislators to “punish”judges, instead of concentrating on the particular constitutional issue that is at stake. For example, a legislator is unhappy with a particular abortion decision, but because she can’t simply reenact the statute, she will introduce a blunt measure, such as jursidiction stripping or term limits, which will have much larger ramifications than if she could focus on the particular decision.

But, the reader will say, almost all the congressional attempts at court curbing have been unsuccessful, so does it really matter? I think it does. First, if congressional attempts are almost always unsuccessful, this means that a lot of legislative resources and energies are wasted on unproductive activity. Second, at the discursive level, there is a lot of noise which obfuscates meaningful discussion on issues of constitutional importance. If we give our legislators blunt instruments to deal with constitutional issues, such as jurisdiction stripping or term limits (which may or may not be a good idea notwithstanding), then perhaps it is inevitable that this should happen. My question, therefore, is do you think that dialogic mechanisms at least help focus the debate and keep it on the substantive level, or, perhaps, even with institutional mechanisms in place we are still likely to have low-quality political debate surrounding constitutional decisions?

Author: international