Low profile

The authority of a court depends not only on the substance of its decisions but also on the way in which they are reached and on how they speak to their audience. “Impressive” opinions at the end of an inclusive and publicly-followed proceeding certainly contribute to consolidating a court’s authority and prestige, both domestically and abroad. After all, a constitutional court’s jurisprudence can be seen as the best introduction to a nation’s legal culture because one can expect that a legal order’s most sophisticated doctrine is produced by its highest court. From this perspective, dissenting and concurring opinions can serve as an important tool to foster the court’s authority. Separate opinions, as Diletta Tega stresses in her contribution, can help to produce a clearer, more coherent, and transparent reasoning, which in turn simplifies dialogue with other institutional actors as well as with society.[1] The same applies with regard to direct engagement with legal scholarship: by quoting scholarly opinions in its decisions, a constitutional court shows that it is cognizant of academic debate and that it might even engage with the critical voices of its legal culture, which, ultimately, can strengthen the legitimacy of the institution itself. Maybe, it is not a coincidence that justices of the two most authoritative courts on both sides of the Atlantic - the U.S. Supreme Court and the German Constitutional Court - write separate opinions and engage explicitly with legal scholarship.

From this perspective, the Italian Constitutional Court does not shine at first sight. Neither dissenting opinions nor direct quotations of legal scholarship are at its disposal, or the Court has not yet resorted to either of those tools. Furthermore, proceedings before the Italian Constitutional Court are rather closed as far as third-party interventions and amici curiae are concerned. This is partly because of the procedural rules governing constitutional litigation and partly because of the Court’s own volition. In principle, this tends to insulate the Court from public debate and limits its grounding in society, whereas a more inclusive approach in principle bolsters a court’s authority, as Maartje de Visser notices in her contribution to this book.

It should not come as a surprise, then, that the very names of the Constitutional Court’s justices, including the Court’s president, are essentially unknown to the public. From this perspective, there could be no greater contrast to the United States, where the health conditions of a single justice can be top news in the media and gather the interest of common citizens.

The public visibility of the Constitutional Court is also far higher in Germany than in Italy. When exiting the Karlsruhe train station, there is no need to instruct a taxi driver on the address of the Constitutional Court, whereas this might be the case when exiting the station of Roma Termini, a result that does not solely depend on the different sizes of the two cities.

However, one should not ignore the other side of the coin by underestimating the advantages of a less visible power. Being unknown to the public certainly does not contribute to the legitimacy of the Court, but “judicial ego” can harm a court equally, if not more. The lack of dissenting opinions surely curtails a justice’s freedom of expression and makes it difficult for that justice to become a public character. But it protects all justices, and, more importantly, the Court as a whole, from accusations of political biases, thereby supporting their independence. While hiding single personalities, collegiality strengthens the anonymous Court. In his famous dissent in Obergefell, Justice Scalia questioned the legitimacy of the Supreme Court’s decision with these impressive words: “Today’s decree says that [...] the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court”.[2] This objection, however, loses part of its grip in a legal system like the Italian one, where “constitutional justice is a function carried out by a body, not by fifteen persons”.

Not quoting legal scholarship has some advantages as well. As Paolo Passaglia suggests, the authority of a decision can be jeopardized if references to legal scholarship are incomplete or imprecise. Furthermore, following the legal opinion of a certain law professor not only exposes the Court to the risk of being criticized for choosing a certain opinion over another, but also makes the judgment’s authority contingent, to a certain degree, on the fortune of the author’s opinion. This can be avoided by a “furtive” use of legal literature, as Marc Verdussen puts it.

Similar considerations apply to the openness of the constitutional proceedings. The practice of the Court described by Tania Groppi and Anna Maria Lecis Cocco Ortu - that is, paying attention to third-parties’ arguments and amici curiae despite their inadmissibility - has advantages. In this way, the Court is able to consider the broader interests that arise from society while it avoids placing the constitutional process at the center of the public’s attention, thereby relieving the judges from the pressure of public opinion.

All in all, the lack of separate opinions and of a direct dialogue with legal scholarship, combined with relatively closed constitutional proceedings, render the Court and its justices less visible to the public. But there are good reasons to think that no direct relationship exists between the visibility and the authority of a court. In the Italian case the opposite might be true. Especially during the last two decades, the Italian Constitutional Court was able to withstand a harsh confrontation with the political powers; but one could ask the question whether this happened despite its rather low-profile approach or because of it.

The Italian Constitutional Court’s style of reasoning also reflects this general approach and shares the advantages and disadvantages thereof. The forms and methods of constitutional interpretation that the Italian Constitutional Court deploys are not peculiar. As Giorgio Pino explains in his contribution to this book, the Italian Constitutional Court favors principle-oriented and value-oriented interpretation,[3] as do most constitutional courts in Europe. On this side of the Atlantic, neither the courts nor the scholarship value Originalism, which Jeffrey Pojanowski sees as quite paradoxical when considering the younger and more easily amendable European constitutions.50 Nevertheless, the way in which the judgments of the Italian Constitutional Court are phrased differs considerably from the style of its German counterpart.

In writing its decisions, the German Constitutional Court exhibits a scholarly approach, which is best expressed in its famous “paragraph C.I”. In this paragraph, which starts the decision on the merits of the case, the Court instructs the legislature (and the society as a whole) on the guiding constitutional principles in a certain subject area, making clear what is allowed and not allowed under the Constitution. In its tone and abstractness, paragraph C.I is closer to a constitutional law paper than to a traditional judicial decision, providing a general and comprehensive picture of the limits set by the Constitution. The actual decision of the case is presented as an application of such broad reasoning. Sometimes its reasoning even resemblés sermons celebrating the Constitution, essays on political theory, or public pedagogy.

By contrast, the style of reasoning of the Italian Constitutional Court very much corresponds to the U.S. Supreme Court Justice Alito’s description of the minimalist approach: “We decide the case before us and leave broader issues for another day”.[4] An example of this is the so called “absorption-technique” that is applied on a daily basis in the Italian Constitutional Court’s case law. When there are several pleas of unconstitutionality and the Court believes that one of these pleas suffices to strike down the impugned law, the Court examines the easiest plea first and declares the other pleas “absorbed” without reviewing them in substance.

This minimalist approach certainly testifies to the Court’s unwillingness to perform a pedagogical function towards the legislature and society. At the same time, as Sarah Harding stresses in her contribution following Cass Sunstein’s reflections, minimalism is also a form of dialogue with other institutions - notably with the legislature - because narrow decisions can be “important avenues for legal development”. Moreover, it must be noted that, in this dialogue, the Italian Constitutional Court enjoys a rather favorable position, as the two judgments on the immunity from criminal proceedings of the State’s highest officers of 2004 and 2009 prove.

In 2003, the ruling majority adopted a statute that suspended the criminal prosecutions pending against the state’s five highest officers. One year later, the Constitutional Court held the statute to be unconstitutional, pointing out that the law required all criminal proceedings to be suspended regardless of the accusation, and that the suspension was subject to no time limit. However, the Court did not address the question of whether, in general, laws expanding constitutional immunities must be adopted as constitutional amendments. This latter plea was considered to be absorbed by the aforementioned unconstitutionality. In 2008, the same majority replaced the unconstitutional statute with a second one of similar content, which this time took into account the remarks of the Court’s 2004 judgment. In a courageous judgment of 2009, the Court struck down the second statute as well, stating that the extension of judicial immunities for political authorities is only possible through a constitutional amendment.

This minimalist approach is certainly open to criticism. After all, the

Court could have already said in its first judgment that a constitutional amendment was necessary, thereby preventing the legislature from enacting a second law that was again unconstitutional. But it must be acknowledged that this careful strategy of not playing the highest card until it is strictly necessary - a strategy mostly alien to the German Constitutional Court - gives the Italian Constitutional Court a significant advantage in the dialogue with the legislature and avoids, to a certain extent, the need for the Court to have to reckon with difficult precedents in the future.

  • [1] See D. Tega, in this book. 2 See P. PASSAGLIA, in this book. 3 On the link between the lack of separate opinions and the quotation of legal literature, see P. PASSAGLIA, supra note 21. 4 25 See T. Groppi & A.M. Lecis Cocco Ortu, in this book. 5 See, for example, the titles of some articles in the major U.S. newspapers on 8 No
  • [2] U.S. Supreme Court, Obergefell v. Hodges, 576 U.S.___(2015) (Scalia, J., dissent ing); emphasis added. 2 D. TEGA, supra note 20. 3 P. Passaglia, supra note 21. 4 M. Verdussen, in this book.
  • [3] 2 ’°J.A. Pojanowski, in this hook. 3 51 For a strong critique of the structure of the German Constitutional Court’s decisions see O. LEPSIUS, Die maßstabsetzende Gewalt, in C. SCHÖNBERGER, M. JESTAEDT, O. LEPSIUS, C. MÖLLERS, Das entgrenzte Gericht, supra note 1, 161.
  • [4] ,2U.S. Supreme Court, NASA v. Nelson, 562 U.S. 134, 148 (2011). 2 See A. BONOMI, L’assorbimento dei vizi nel giudizio di costituzionalita in via incidentale, Naples, Jovene Editore, 2013. 3 M S. Harding, in this book. 4 55 See judgments 24/2004 and 262/2009.
 
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