Book Review: Robertson’s The Judge as Political Theorist

David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton University Press, 2010) 432 pages.

The sub-title of this book should really be “Constitutional Review in the Rest of the World” because its basic premise is that we can learn a great deal about contemporary judicial review by leaving the United States out and looking at what everybody else is doing.  This is a counter-intuitive gambit — if only because they have been in the game considerably longer than anyone else, American scholars have developed a powerful arsenal of research techniques, and their literature has worked through a series of critical issues with rigor and panache.  But that is precisely Robertson’s concern; Americans have developed a particular way of framing the discussion, and have organized themselves around some very specific problematics, but these are not necessarily the frame or the problematic at the heart of the practice of judicial review elsewhere.  Maybe the counter-majoritarian problem is not the first river we have to cross; perhaps an attitudinal approach to judicial votes and decisions will not open the most useful windows on what is “really” going on in the constitutional court conference room.  Robertson believes there is a different story waiting to be told, and this book introduces us to it.

The first chapter, easily the best part of the book, fully delivers on this promise.  In many countries, he suggests, a constitution is not understood as a list of discrete and separate elements, but rather as the embodiment of a pervasive core of values, such that it is the duty of the courts to make sure that those values are broadly and sympathetically applied.  This is the transformational element of modern constitutional review, and it is demonstrated by his exemplar countries, each of which underwent a critical major shift in its organization or its values, such that the constitutional mandate is as much to oversee change of a certain sort as it is to preserve a status quo.  This is clearly the case for South Africa and for the post-communist regimes of central and eastern Europe; it is arguably the case for Canada’s adoption of an entrenched Charter; it seems a little more of a stretch for him to begin the account with Germany and France.  But while one might quibble about the precise population of this zone of “constitutional review that is not simply a replay of the United States” one cannot suggest that it does not exist, and by the end of the chapter we have had a good look around.

Much of the book — five of the eight chapters, fully half of the pages — is devoted to the country specific (or, for the Eastern Europe chapter, region-specific) analysis and discussion.  They make interesting reading; but my problem is that the chapter relating to the country I know the most about (that is to say, Canada) is riddled with errors.  Some of the mistakes are rather small — discussing a set of reasons written by Justice Bertha Wilson, he casually assures us that she later became Chief Justice (she didn’t); and quoting a premier criticizing the Charter he describes him as “conservative” (he was a Liberal).  Other misstatements are more significant; for example, he cheerfully asserts that the SCC has been no more likely to divide on Charter cases than other cases, when I have spent the last twenty years writing about the exact opposite; and he clearly thinks that the only kind of division that really matters is dissent, although Canada’s “age of the Charter” has until very recently  been the age of the separate concurrence. He repeats several times that Dolphin Delivery, a 1986 case that walled common law issues off from Charter consideration, is a “real bedrock” decision that has yet to be revisited, although in fact the Supreme Court has long since repudiated it to declare explicitly that “the common law must be interpreted in a way that is consistent with Charter values” (Hill v. Church of Scientology, 1995).  Most seriously, he totally botches the description of an extremely important recent case, Chaoulli v. Quebec (2005).  He describes it as a somewhat rancorous 7-2 decision — it was actually a 3-1-3 split of a seven-judge panel.  He indicates that Deschamps wrote the leading reasons — she was the “1”, and the Supreme Court Reports do not identify any of the three sets of reasons as a judgment.  And worse yet, he quotes from Deschamps to illustrate the Court’s position on the Canadian Charter of Rights and Freedoms, although the critical and frustrating thing about this curious case is that while the other six judges split 3-3 on the question of whether the prohibition of private health insurance violates the Canadian Charter, Deschamps doesn’t mention the Canadian Charter at all but instead bases her reasons on Quebec’s completely separate provincial Charter. Note that I said “her” reasons — we are talking about Madame Justice Marie Deschamps — but Robertson uses the male pronoun throughout.  All in all, this is rather like the clock that struck thirteen — not only is it unconvincing in itself, but it casts doubt on all that went before, and makes me reluctant to lean too heavily on what he has to say in the other focused chapters.

That said, the book ends strong.  There is a powerful chapter on the ubiquitous problem of finding the limits to constitutional rights (and not only when they collide with other constitutional rights), although his treatment forgets the “leave out the Americans” premise and begins with the United States Supreme Court’s approach to this issue; and there is a somewhat unfocused concluding chapter.  But a basic problem remains: we began by setting aside the American experience as the natural but not always useful starting point, and instead focused on other constitutional courts that have more recently gotten into the rights business, and this allowed us to find an aspirational model that gives these courts a more transformational role.  To some extent, this is a heuristic device — if we just bracket the American experience and the agenda that they presuppose, then we can find and explore these other ideas.  But what pervades the book is a strong sense that this is not merely a different way or a newer way — it is also a better way.  Robertson never has a kind word to say about individual elected representatives or the legislatures in which they serve — legislatures are surely the most under-appreciated institution of this new century, and this book is a case in point. And whenever he trips over an American-style argument, he simply dismisses on the grounds that the writer has “missed the whole point.”

But this still leaves unanswered what we might think of as the basic American challenges:  is it not in the end a problem, in an age that values the notion of democracy, that courts are undemocratic institutions and the method by which they make their decisions are not democratic either?  Is it not also a problem that judges are people like the rest of us, that they have values and principles and philosophies and ideas that are shared by some but not all of their fellow citizens or even their fellow judges, such that the power to select the judges is to some extent the power to choose the outcome?  What happens if in the end not all of us are convinced by the rhetoric that cloaks the very real choices that these specific individuals are making?  It is not that these questions could not possibly have answers; it is just that they are questions that call out for direct and focused answers.  Robertson suggests that modern society is so divided, and traditional religion so much in decline, that the only thing left around which a national community might rally is the ideology, the value vision, embedded in its constitutional provisions, and the only people who can articulate this vision and grade the community on its progress toward its realization are the judges.  This is not an empty argument, but neither is pre-emptively persuasive, and is needs far more solid grounding than it receives.

Judges as political philosophers — the suggestion is provocative, but the reply is obvious. Aristotle never declared a statute unconstitutional; Hobbes never handed down a binding decision that extended his principles from one statutory context to another; Locke never protected property by overturning a government expropriation order; Rousseau never upheld a policy of military conscription.  The ideas of these theorists were unquestionably and undeniably massively influential, and changed the lives of many people who had never heard of them and would possibly not have understood them, but they did so through indirect means of persuasion or permeation, not through the direct application of decisive authority and power.  Robertson’s description is powerful and telling, right up to the point where the judges wind up their carefully reasoned argument with a conclusion that says “the court so orders.”  At that moment, they stop being philosophers and start being (sort of) kings — and Plato notwithstanding, this has never been a particularly useful or compelling combination.  Robertson never tells us why the philosophers should also be kings, why their reasons however powerful and challenge should trump other values such as the democratic, why other mechanisms for transforming society through a more genuinely participatory mode have suddenly become at best “second best” and at worst obstacles.  The book is provocative but not conclusive, fascinating but flawed; I recommend it (especially the powerful first chapter) but with some strong reservations.

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Peter McCormick is a professor of political science at University of Lethbridge in Lethbridge, Alberta.

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