Escalating or de-escalating populism: the role of courts in constitutional interpretation

Populists claim to be the better democrats and implementers of the ‘will of the people’ as expressed in elections or plebiscites vis-a-vis diffuse ‘elites’ to which they often consider courts to belong. Where constitutional or apex courts, at whatever level, oppose populist parties or governments, also by the means of constitutional interpretation, populists will naturally question the independence of courts and their interpretation and invoke the counter-majoritarian

An ‘Instrument of Government’ or ‘Instrument of Courts’? 59 dilemma - that unelected judges govern over and even against the ‘will of the people’ as represented by the majority in Parliament.^[1]

However, and quite apart from populist claims, many national and international apex courts have been confronted with similar criticism regarding their use of interpretation methods in recent years. Not all such criticism is n priori populistic or illegitimate. In many states, constitutional interpretation has increasingly become dynamic, to a degree that it can sometimes not be distinguished from constitutional amendment but for formal reasons. This complaint has nothing to do with the kind of antidemocratic ‘abusive judicial power’ that constitutional courts sometimes exercise - that they rather stick to the governing political power than to the opposition. Constitutional courts should not play the role of political partisans, on whichever side. But what is considered problematic here is rather a kind of abusive interpretation where, even despite a liberal purpose, the end cannot always justify the means.

This is the more problematic in cases where the respective constitution -and, analogously, the ECHR or primary EU law - cannot be amended easily (which at the same time stimulates courts to dynamic interpretation), so that it will be difficult to invalidate the prevailing interpretation by an amendment. A spectacular case has recently been the German Federal Constitutional Court’s response to a previous judgment of the ECJ criticizing it as ‘ultra vires’ because of‘objective arbitrariness’.

My final hypothesis is that it might de-escalate populism if courts neither overstretched constitutional interpretation nor their functional claim to

democratic legitimacy as guardians of the constitution.^[2] How far legitimate constitutional interpretation reaches may be questionable from case to case, but the entrenchment of written interpretation rules, as pointed out earlier, could be helpful here. Populist complaints that courts behave like undemocratic elites could thus perhaps not be eliminated but at least given no just reason. Even though the constitutional review of laws has an inherently political character that cannot be avoided completely, judges should be what they claim to be: independent, objective and law-oriented. By following the ‘political question doctrine’ in one way or the other, they contribute to a balanced separation of powers: where one power does not overreach, another power will have less occasion for doing so. Where populist governments enact overreaching measures, however, courts will then have better authority for striking them down. In other words: Neither shall courts themselves exercise ‘judicial populism’ nor shall they bluntly act as political antipodes that may interpret constitutions in whatever arbitrary way, only they must oppose a populist government. This does not at all mean that they need to play a generally deferential or wcak-form role towards populist governments, but that they may have stronger and more persuasive authority in the long run if they do not believe their interpretive role to be that of the political - not legal - opposition.

• [1] Sec Alexander Mordecai Bickel, The Least Dangerous Branch ( Yale University Press 1962). The genial argument expressed by Alexander Hamilton in the Federalist Papers - namely that even unelected judges manifest a prime democratic quality inasmuch as they defend the constitution which expresses the ‘will of the constitutional people’ against ordinary legislation that just expresses the ‘will of the people’ - is not part of the populist discourse. 2 Bickel (n 53); Alter (n 7) 249-250; Andrea Pin, ‘The Transnational Drivers of Populist Backlash in Europe’ [2019] 20 German Law Journal 225, 235; Brian Christopher Jones, ‘When Court Criticism Threatens the Rule of Law’ (Blog of the International Journal of Constitutional Law, 5 September 2018) http://www.iconnectblog.com/2018/09/when-court-criticism-threatens-the-rulc-of-law-a-three-part-test accessed 15 October 2019. With regard to the ECtHR Patricia Popelier, Sarah Lambrecht, and Koen Lemmens (eds.), Criticism of the European Court of Human Rights (Intersentia 2016). Jeremy Waldron, ‘The Core of the Case Against Judicial Review’ (2006) 115 The Yale Law Journal 1346, 1350; Richard Bellamy, Political Constitutionalism (Cambridge University Press 2007) 27ff; Alon Harel and Adam Shinar, ‘Between Judicial and Legislative Supremacy: A Cautious Defense of Constrained Judicial Review’ (2012) 10 International Journal of Constitutional Law 950, 951ff; Paul Craig, ‘Political Constitutionalism and the Judicial Role: A Response’ (2011) 9 International Journal of Constitutional Law 112, 112 ff. 3 David Landau and Rosalind Dixon, ‘Abusive Judicial Review: Courts Against Democracy’ (2020) 53 UC Davis Law Review 1313, 1313 ff. 4 See also Pin (n 54) 242. 5 EJC Judgment of 18 December 2018 (Grand Chamber), Weiss and Others, C-493/17. 6 German Federal Constitutional Court (BVerfG, Urteil des Zweiten Scnats vom 5. Mai 2020 - 2 BvR 859/15,2 BvR 980/16, 2 BvR 2006/15,2 BvR 1651/15).
• [2] Similarly, with regard to the ECJ and ECtHR Pin (n 54). Michaela Hailbronner and David Landau, ‘Introduction: Constitutional Courts and Populism’ (Blog of the International Journal of Constitutional Law, 22 April 2017) www.iconnectblog. com/2017/04/introduction-constitutional-courts-and-populism accessed 15 October 2019; Bilyana Petkova, ‘Populism and Judicial Backlash in the United States and Europe’ (Blog of the International Journal of Constitutional Law, 30 April 2017) www.iconnect-blog.com/2017/04/populism-and-judicial-backlash-in-the-united-states-and-europe accessed 15 October 2019. 2 According to Howse (n 1) 647, the frequency of counter-majoritarian decisions by courts is exaggerated. 3 Loughlin (n 15)929-930. 4 David Landau, ‘Courts and Support Structures’ in Erin F. Delaney and Rosalind Dixon (eds), Comparative Judicial Review (Edward Elgar Publishing 2018) 226,233; Meyer and da Rosa de Bustamante (n 38); Oder (n 38). 5 With regard to international law, see Hostovsky Brandes (n 47) 595. 6 See also Prendergast (n 52) 253f.