Political Questions in Constitutional Review: What is the Dividing Line between Interference with Policy-Making and Routine Constitutional Review?
Judicial Activism in Constitutional Review Decisions of the Supreme Court of Estonia
The choice of the subject of the international conference organised by the Supreme Court of the Republic of Estonia and dedicated to the 15th anniversary of the Constitution of the Republic of Estonia — Political Questions in Constitutional Review: What is the Dividing Line between Interference in Policy-Making and Routine Constitutional Review? — implies that the highest court in Estonia seems to feel somewhat uncomfortable about its task of constitutional review. *2 The Estonian Supreme Court is by no means exceptional in this regard. All over the world, constitutional courts or their counterparts entrusted with the review of the constitutionality of the decisions adopted by a democratically legitimised legislator must test the bases and the limits of their existence from time to time.
In the course of such fight for the right of existence of constitutional courts (and sometimes against it), a number of scientific works have been born. These can be broadly divided into three categories. Some researchers are dedicated, in line with their understanding of the substance and limits of the modern concept of the separation of powers, to advocating or criticising the interference of the constitutional courts in policy-making. A second school attempts to rank the constitutional courts of the world by the degree of their interference in policy-making. The third, predominantly social science approach, declares the search for the proper boundaries of the power of the courts and the relevant classification utterly useless. *3 Regardless of the approach taken, the discussion upon the appropriate limits of constitutional adjudication employs the notion of judicial activism, which has become one of the key concepts of modern constitutional law. *4 This article enters the discussion mentioned above, trying to answer the question about the degree of activism of the constitutional court closest to the author — the Supreme Court of Estonia (hereinafter the Supreme Court).
Since there are practically as many definitions of judicial activism as there are commentators *5 , everyone taking up this task — to say something rational about the degree of judicial activism of a particular constitutional court — must first of all state what he or she means by judicial activism. In the light of the above, this paper aims to serve two goals. The first is to present different approaches to judicial activism and assess them from the perspective of their explanatory power. Secondly, the paper sets out to apply the explanations of judicial activism thus analysed for assessing the degree of judicial activism in the constitutional review decisions of the Supreme Court.
In presenting the different approaches to judicial activism, I have taken as the basis for the discussion the fact that the majority of the definitions of judicial activism are centred around three relatively distinguishable axes. I have referred to the dimensions thus created as methodological, procedural, and substantial activism. Further to that, I will introduce the classical concept of judicial activism standing outside this proposed division in three.
1. Judicial activism as conflict with classical policymakers — an approach past its prime
Although defining judicial activism as a mere conflict with other policymakers is not too prevalent in modern scholarly discussion upon constitutional courts, it should be mentioned in the interests of completeness. This is particularly the case because the only international study thus far on the activism of the Estonian Supreme Court, although proceeding from the perspective of political science, makes use of this approach.
Namely, Shannon Ishiyama Smithey and John Ishiyama published in 2002 their article ‘Judicial Activism in Post-Communist Politics’ *6 in Law and Society Review, in which they examined how the structure of the society influenced the occurrence of judicial activism in post-Communist countries. The percentage of the judicial activism of each country was calculated by dividing the number of cases where the court nullified a law or policy by the total number of nullification opportunities that the court had. *7 By doing so, the authors proceeded from the most classical definition of judicial activism, according to which a constitutional court is considered activist each time its decisions come into conflict with those of any other political policymakers. *8 Such an approach, directly rooted in the theory of democracy, considers illegitimate any change in public policy that does not stem from democratically elected legislature. *9
According to this approach, whichever constitutional court is unavoidably activist each time it uses its powers to strike down laws assigned to it for review (in Estonia , on the basis of the Constitution itself). Such an approach is contradicted by the contemporary understanding of constitutional democracy with the human rights concept inherent in it as well as of its control mechanism, constitutional review. *10
In the Estonian context, it is obligatory to refer also to the nature of the first constitutional decisions of the Supreme Court. For example, in the 1990s, the Supreme Court invalidated the provision that enabled security police officers to use operational and technical special measures without any legal basis if given the written consent of the Justice of the Supreme Court appointed by the Chief Justice of the Supreme Court. *11 In such cases and similar ones that have now become virtually extinct among the constitutional decisions of the Supreme Court, the Supreme Court rather played the role of a reminder of basic principles of law that were not familiar in the previous legal formation, and it does not appear to be justified to speak about particular judicial activism.
Having said this, one has to move on to approaches that take more account of the modern context when substantiating judicial activism.
2. Methodological activism — what counts as an argument?
One of the most attractive approaches, probably because of its simplicity, to judicial activism analyses activism through the lens of the methods and arguments used in constitutional interpretation, relying on the assumption that it is possible to distinguish between legal and non-legal arguments, and the premise that some arguments and interpretive theories are more suitable than others for avoiding interference in policy-making.
In this vein, the notion of judicial activism has been used in many comments to signify judicial argumentation that does not entirely rely on the text of the Constitution *12 , or which diverges from the intention of the authors of the Constitution, i.e., the will of the ‘fathers of the Constitution’. *13 Reliance on allegedly non-legal arguments, such as value arguments, consequential reasoning, and references to history and traditions *14 , or on ambiguous and abstract principles that require a value-oriented assessment (such as human dignity, equality, and a state based on the rule of law) is also considered activist under this approach. *15
As Keenan D. Kmiec has critically noted, “Although judicial activism is often equated with the failure to use ‘proper’ interpretive tools, divergences of opinion over what constitutes an appropriate interpretive tool make it difficult to distinguish principled but unorthodox methodologies from ‘activist’ interpretation”. *16 In addition to this, it is impossible to declare the orthodox interpretation methodologies, such as loyalty to the original intentions of the authors of the Constitution — commonly referred to as “originalism” — apolitical. *17 Moreover, those who study the US Supreme Court have described the attempt to implement the will of the ‘fathers of the Constitution’ as one of the manifestations of conservative judicial activism. *18 By the same token, teleological interpretation, which is often described as a stronghold of judicial activism for not meeting the requirements of objectivity and mechanical applicability *19 , and c ontemporaneous interpretation (i.e., interpretation taking into account the principles and values prevalent in a given society at a given time) are becoming more and more established also in the Romano-Germanic legal tradition, which has traditionally been considered positivist. *20
The use of abstract principles of law and value arguments in reasoning as a manifestation of judicial activism has also been severely criticised. Firstly, it is not possible to claim that the ‘ambiguity’ of the principle of legal certainty outweighs the ‘ambiguity’ of a provision of the Constitution prescribing a fundamental right. As Christopher Wolfe has elegantly pointed out, “Ambiguity is the raison d’être of modern judicial review”. *21 Secondly, one could argue the shift from the traditional perception of law as a set of rules to the understanding of law as a set of values and principles. *22 The importance of constitutional values and principles is particularly evident in Estonian legal doctrine, where the second sentence of § 152 of the Constitution provides thus: “The Supreme Court shall declare invalid any law or other legislation that is in conflict with the provisions and spirit of the Constitution” (emphasis added).
However, there is a category of arguments, in the ‘non-legalness’ of which there seems to exist a more uniform agreement. This pertains to arguments from substantive reasons *23 — that is, the most abstract level of objective-teleological interpretation, which takes account of the values prevalent in society, relying, inter alia, on social science findings. For instance, even in Germany , where the constitutional court is relatively well known for the use of novel interpretation methods, the question of whether interpretation of the constitution should consider not only the legal interpretation principles but also political and economic evaluations, is partly answered in the negative. *24 There are no cases in the practice of the Supreme Court in which the court’s reasoning has explicitly relied on the values prevailing in society, and where social science studies have been used to substantiate the court’s position. *25
In a situation in which the entire problem of constitutional law is considered to lie in the fact that nobody knows what counts as an argument *26 , and where the arguments used or methods applied are not reflected at least in full in the decision, substantiating judicial activism through them does not seem very helpful.
There is another classification proposed in the debate over the proper limits of the constitutional adjudication that may provisionally be placed under methodological activism. Namely, those activities of the constitutional court in which the court does not confine itself to the invalidation of a law or a part thereof (negative policy-making) but imposes detailed rules for restoring a situation that is in conformity with the Constitution on the legislator (positive policy-making), instead, have also been considered to be ‘political’ in nature. *27 The more detailed the precepts are, the more reason we have to speak of judicial activism. The so-called numerus clausus cases *28 serve as notorious examples of positive policy-making of the German Federal Constitutional Court , while in the United States , the determining of the temperature of showers in prisons or the inmate release rates by the courts has been referred to. *29 No similar example can be brought from the practice of the Supreme Court of Estonia.
3. Procedural activism — choosing form over content
The procedural approaches to judicial activism identify judicial activism according to procedural criteria without considering the substance of the matter. In this approach, judicial activism is defined as disregard for procedural limits or the interpretation of theirs that allows for more extensive intervention of the judiciary. The main procedural limits that are tackled within the framework of that dimension are the doctrine of standing, the case and controversy doctrine, and the doctrine of political question.
The political question doctrine serves particularly in the United States as an important lever to try to avoid intervention in politics by the US Supreme Court. The doctrine that David Beatty calls “by far the bluntest device that judges have developed […] to mark off broad areas of law which are declared to be immune to an attack on the basis that they violate people’s constitutional rights”, defined by the US Supreme Court in Baker v. Carr *30 in 1962, holds in essence that courts should abstain from resolving constitutional issues that are better left to other departments of government, mainly the national political branches. As one of the justiciability doctrines present in the US constitutional jurisprudence, it has, over the years, excluded from the scope of judicial review questions concerning foreign policy, national security, and the operational structures of government.
Estonian jurisprudence does not recognise the political question doctrine. Estonian procedural laws do not allow for rejecting an appeal in the stage of establishing its admissibility with a reference to non-justiciability, either. It seems that the idea that none of the areas of state activity is exempt from constitutional review as an obligatory requisite of a state based on the rule of law seems to have been taken over from the German legal doctrine. *31 This assumption also appears to apply to such areas as foreign and security policy, which have classically been regarded as ‘political’. *32
However, in the Estonian context, we can speak about the doctrine of standing, which as a general principle requires that the individual’s right of recourse to the courts be established in the legal system of the relevant country in order for the judicial control mechanism to be initiated, and of the case and controversy doctrine, according to which judges must settle only actual disputes, and refrain from settling hypothetical disputes, to objectively establish the constitutionality of a legal provision. In countries such as Estonia , where abstract constitutional review is recognised, the case and controversy doctrine is not fully applicable. *33 Yet one could consider as relevant also in the Estonian context the facet of the case and controversy doctrine that prohibits the settlement of issues not raised by the participants in the proceedings at the initiative of the courts. Namely, the Constitutional Review Proceedings Act prescribes that the matter before the court shall be settled only to the extent requested *34 , and that only the provision relevant to the settlement of the case shall be reviewed. *35
Thus, the constitutional court may adjudicate cases brought to it by persons having the right of recourse in the case, and do so to the extent requested from it. If the court adjudicates the request of a person who did not have the right to bring the matter before it, settles more or broader issues than those raised in the request, or verifies the constitutionality of irrelevant provisions, its action functio ns as procedural judicial activism.
The Supreme Court has unambiguously ignored the procedural limits in at least two instances. In Brusilov *36 , a person who considered himself to have developed the right to benefit from a more lenient penal code in relation to the terms of punishment reviewed during the penal law reform submitted a petition to the Supreme Court. Although according to the Code of Court Procedure Mr. Brusilov lacked procedural basis for a request to the Supreme Court *37 , the Supreme Court accepted the request on the grounds that Mr. Brusilov did not have access to effective procedure to protect his fundamental rights. The Supreme Court acted in a relatively similar manner in Veeber *38 , in which it recognised the right of recourse to the Supreme Court belonging to an individual with regard to whom a judgment of the European Court of Human Rights had entered into force in a situation in which the national procedural law did not allow for reopening his criminal matter on that basis. Insofar as these decisions admitted in principle an individual constitutional complaint not recognised by the Constitutional Review Proceedings Act, the relevant conduct of the Supreme Court may be considered highly activist under a procedure-based criterion.
At the same time, the Supreme Court has in several instances used the argument of procedural limits to avoid answering to sensitive questions. For example, in 2004, the Supreme Court dismissed the request of an administrative court to declare invalid the provision of the Health Insurance Act that imposed a transition period in connection with the expiry of the insurance cover of persons dependent of an insured spouse. The Supreme Court concluded that the contested provision prescribing the transition period was irrelevant, as its repeal would not restore the right of the person concerned to insurance cover, but rather shorten the coverage time by the transition period, which would deteriorate the complainant’s situation. *39 The Supreme Court noted that, although the procedural limits did not preclude the broadening of the object of the proceedings, arising from the fact that the provisions were inseparably interrelated, a situation could not be allowed in which the Supreme Court declares to be constitutional a provision whose constitutionality was brought before the court for review but then starts searching for an unconstitutional provision on its own initiative. *40 In this, the Supreme Court departed from a principle that it earlier had postulated itself, according to which it was the duty of the court to establish the actual will of the complainant. *41
Hence, the question of the constitutionality of the exclusion of a particular group of persons from the insurance cover did not receive an opinion from the Supreme Court, regardless of the fact that the actual object of the administrative action was the contestation of the expiry of the insurance cover that had extended to the person until that time, and a request for the recognition of the continuing insurance cover. Appealing to procedural limits, the Supreme Court in fact refrained from answering the question of whether the changes in the health insurance system were in compliance with everyone’s constitutional right to health protection.
4. Substantial activism — out of the frying pan into the fire?
This approach, supported by many contemporary scholars, calls for the analysis of the content of the decision in question rather than drawing of conclusions from the interpretive methodology used or procedural limits transgressed, arguing that, in essence, there is greater justification for the courts’ engagement in policy-making in some areas than in others. According to this approach, judicial activism or substantive policy-making involves the interference by the court in directing social processes in areas where it lacks the so-to-say privilege of policy-making. *42 Below, I will discuss the areas to which this privilege applies (‘routine constitutional review’), and will touch upon the category of activities that are fairly universally considered to be ‘interference in policy-making’ in the sense of the topic of the conference having given rise to this publication.
4.1. Preservation of the democratic process versus substantive policy-making
Firstly, a distinction is made between the preservation of democracy and substantive policy-making within the framework of this dimension. According to Bradley Canon, decisions related to the integrity of the democratic political processes, such as those involving freedom of expression, conduct of elections, and the nature of representation, are not to be treated as activist, as they do not directly affect substantive politics, while decisions falling outside the scope of that ‘privilege’ should be considered making substantive policy. *43
This special privilege of the courts to strike down laws concerning political processes without fear of being accused of overstepping the boundaries of the judicial power is inherent in the prerequisite of democracy.As Bojan Bugaric notes, this exception to traditional judicial statecraft emerges from the democratic ideal of popular self-government, well reflected in John Hart Ely’s representation-reinforcement theory of judicial review, according to which judicial review should primarily focus on strengthening the process of political representation, clearing obstacles to political change, and facilitating minority representation. *44 Drawing on that, any measure having impact on the political processes should be protected to a greater extent by not having been left to be decided by the parliamentary majority, often said to be apt to constrain the rights of minorities.
The Supreme Court has, by overruling the choices made by the legislator, repeatedly contributed to preservation of democracy in the above sense. Paradoxically, the first decision of this kind has received severe criticism in the Estonian press as one of the most political decisions in the history of the Supreme Court. This case merits discussion here.
In 2002, the Chancellor of Justice requested that the Supreme Court declare unconstitutional the provision of the Local Government Council Election Act that prohibited the participation of the citizen election coalitions in the election of the representative body of the local government. The Supreme Court granted the petition of the Chancellor of Justice, reasoning that the restrictions of the subjective right to vote must not prevent persons and groups who have real supporters from running as candidates, as thus the representative body would not be capable of becoming sufficiently representative. *45 In 2005, the Estonian parliament (the Riigikogu) prohibited the local election coalitions again and the Chancellor of Justice turned to the Supreme Court for the second time. The Supreme Court declared the provision prohibiting election coalitions partly invalid, due to conflict with the right to stand as a candidate and the principle of local autonomy. *46 Proceeding from the above-described privilege of policy-making, these two decisions of the Supreme Court were clearly aimed at the greater representation of the local representative bodies and thus at the strengthening of (local) democracy, and cannot hence be classified as activist on the scale of substantial activism.
In this respect, one has to pay attention to another decision of the Supreme Court dating from 2005, where, appealing to the principle of democracy, the Supreme Court decided on an important issue in an area in which — in the author’s opinion — it lacked the privilege of policy-making. In that matter, the President of the Republic *47 contested a provision that allowed for simultaneous membership of the Riigikogu and a local government council, on the grounds that such simultaneous membership of two representative bodies was in conflict with the principles of separation of powers, local government autonomy, and incompatibility of offices. *48 The Supreme Court granted the petition of the President of the Republic yet did not consider any of the grounds highlighted by the President of the Republic. The Supreme Court established instead that making amendments to the Election Code immediately before the elections was not in conformity with the principle of democracy. Such appeal to the principle of democracy and the prohibition of rapid changes derived therefrom in a situation in which the President of the Republic had instead pointed to a conflict with the principles that are diversely furnished in the practice of the European constitutional courts, such as separation of powers and local government autonomy, appears to the author to be cutting the Gordian knot to the disadvantage of the legislator in a situation in which the relation to the preservation of democracy is rather indirect, and hence an instance of judicial activism.
4.2. Universally accepted rights versus complex issues
In addition to the preservation of democracy, greater freedom of intervention for the courts has also been sought for activities protecting the universally recognised fundamental rights. According to this approach, the courts should afford greater protection to those principles that, according to universal consensus, deserve to be protected *49 , while decisions that regulate the non-political-process activities of groups, impinge upon people’s careers, lifestyles, or moral or religious values, and decisions making economic policy can be regarded as highly activist. *50
This far, the Supreme Court has not had to take a stand on highly sensitive issues, such as euthanasia, abortion, same-sex marriages, etc., in which the practice of democratic countries diverges. However, the decision of the Supreme Court en banc by which the institution of compulsory portion in the law of succession was furnished differently from the interpretation applied so far may be considered activist in this context. Namely, in 2005, the Supreme Court en banc established that the provision that provides for allocation of a compulsorily specified portion of the estate to the bequeather’s descendants who are incapacitated for work had to be interpreted such that it excluded from among the persons entitled to succeed to the compulsory portion those old-age pensioners who were not in factual need of support for their livelihood. *51 The Supreme Court arrived at the conclusion, after considering contradictory values such as freedom of intestacy and the hereditary succession of the family, to give greater weight to the former. Although the Supreme Court left it to the legislator to further develop the institution of the compulsory portion, the amendment of the long-term application practice as a result of balancing such ideologically loaded principles may be considered to be substantive policy-making and thus a manifestation of judicial activism.
As the world practice shows that such universal consensus does not exist, particularly with regard to issues that are actually addressed in constitutional courts, and since it is impossible to preclude the existence of a broad but perhaps morally questionable consensus on certain sensitive issues, this criterion, as well as many of its predecessors, seems to be relatively unreliable for judgment on judicial activism. However, broad scholarly consensus does seem to exist as to the ‘substantiveness’ of a specific area of policy-making.
Namely, the activities of the courts in areas where they lack both the necessary means and adequate preparation for rendering a decision, are rather uniformly considered as substantial policy-making. Such areas have been, above all, claimed to include economic policy, where the impact of a decision is predominantly not linear *52 , and issues such as the appropriate size of local government units. *53 Cass Sunstein warns that, because of the lack of means for settling such complex issues, the courts may, in such areas, produce unfortunate systemic effects, with unanticipated negative consequences that are not visible to them at the time of decision. *54 Those studying constitutional courts of post-Communist countries, in particular, severely criticise judicial policy-making that concerns transition issues as special cases of complex issues — that is, issues such as privatisation of state enterprises, reform of social security systems, and return of unlawfully expropriated property. *55 In addition to complexity, the trickiness of reform decisions by the court is further exacerbated by the nature of the reform as something that by definition changes the status quo. *56
The Supreme Court has not, over the years of its existence, engaged in economic policy-making or adopted positions on issues such as the appropriate size of local government units. The Supreme Court has, however, been involved in reform policy repeatedly. The conduct of the Supreme Court from the perspective of judicial activism as judged by the criteria presented in this section of the paper has not been uniform in that respect.
In 2005, the Supreme Court established in Desintegraator, which concerned compensation for damages incurred by a successor to a Soviet co-operative organisation and caused to it by the privatisation obligation in the course of the ownership reform, that “the legislator has a wide discretion for the protection of public interests upon transforming ownership relationships in the course of a wide-scale reform. The legislator is entitled to decide on essential expropriations and establish special means of compensation, fair from the aspect of transformation of relationships, which do not need to guarantee total compensation of market value to the owner of property.” *57 Thus, the Supreme Court expressly effected self-restraint in verifying the legislative choices made during the reforms.
However, the Supreme Court did not show such modesty concerning the other group of cases in the context of the ownership reform. Namely, in 2002, the Supreme Court declared unconstitutional a provision of the Principles of Ownership Reform Act according to which the issue of the return of the property of the people emigrating from Estonia to Germany in 1941 had to be decided by an international agreement, because of its conflict with the principle of legal clarity. The court did not declare the provision invalid because the property of the resettled people would have to be returned or compensated for as a result of the invalidation. According to the Supreme Court, the latter would have been “a political decision the court had no competence to make”. *58 In 2006, the Supreme Court still declared the same provision invalid *59 , as a result of which the principled decision — to return such property — was eventually made by the Supreme Court. *60
However, it must be admitted that the Supreme Court made what one could call a political substantially decision (to return the property) in circumstances in which the legislator for three years had been unable to decide whether to return the property to the group of aggrieved persons or not. The Supreme Court thus made use of its powers in a situation in which the legislator, on account of the issue’s sensitivity, did not wish to address it at all. For example, according to Canon, the absolute lack of interest on the part of the political branches of government in addressing an issue finally settled by the court legitimises powerful intervention of the constitutional courts. *61
In the opinion of the author, the steps taken by the Supreme Court in reforming penal law can be considered activist without reservation. Namely, in 2003, the Supreme Court established that, upon moderation of punishments within the framework of the penal law reform, the constitutional principle of applying a lesser punishment gave rise to the obligation to review the decisions concerning people who had been convicted by a court and were serving a prison sentence before the entry into force of the amendments to the Penal Code. *62 The obligation to extend the principle of application of a lesser punishment to those already convicted and serving an actual prison sentence cannot be found in international practice. Through such an innovative interpretation of the Constitution, the Supreme Court considerably restricted the legislator’s freedom to reform penal law. The dissenting opinion appended to the decision also points to the threat that, because of the decision, the legislator might, by way of autolimitation, give up the idea of reforming penal law in the future after all. *63 Thus, the development of national penal policy has been made problematic for the legislator.
To sum up, in its almost fifteen years of activity, the Supreme Court has not been obliged to answer exceptionally sensitive questions — disputes concerning, for example, same-sex marriages, euthanasia, abortion, and freedom of religion have not been brought before the court. Unlike its German and US counterparts, the Supreme Court of Estonia has so far also managed to escape from developing formulae for calculating specific ‘teaching unit capacity’ or regulating the shower temperatures in prisons. The decisions in Brusilov, Compulsory portion, Two chairs, and provisionally Resettlers aside, the Supreme Court has not shown particularly activist stance in shaping the life of the polity. Rather, the court has hidden behind procedural justifications in cases concerning sensitive issues in order to avoid answering, for example, the question of the extent to which the Constitution of Estonia ensures everyone’s right to health protection (Toom).
In the end, it must be noted that, although the proportion of activist, as defined by the author above, decisions among all constitutional review decisions of the Supreme Court is not large, all of these have been rendered in the past five years of operation of the Supreme Court. Hence, time will tell whether it is justified to speak of all the more noticeable appearance of the Supreme Court on the arena of policy-makers in Estonia .