THE POLITICS OF JUDICIAL DIALOGUE

1 THE POLITICS OF JUDICIAL DIALOGUE David S. Law and Mark Tushnet* Forthcoming in Mark Tushnet & Dimitry Kochenov (eds.), RESEARCH HANDBOOK ON THE POLITICS OF CONSTITUTIONAL LAW (Routledge, 2023). The idea of judicial dialogue entered into scholarly discussion in the late twentieth century and is used in connection with different phenomena at the transnational and domestic levels. In the transnational context, it refers to exchanges among courts and judges that belong to different national and international legal regimes. In the domestic context, judicial dialogue refers to interaction between courts and other branches of government, particularly legislatures. Each phenomenon is associated with a form of politics. Transnational judicial dialogue occurs in a literal sense when judges communicate and network with each other, but it also occurs in a figurative sense when judges engage in comparative legal research and consider each other’s work. Either way, it can resemble a specialized form of international relations, in which courts seek to bolster their own standing by affiliating themselves with more prestigious peers, and to exercise soft power and influence over less prestigious peers. Transnational dialogue is often opaque or invisible to outsiders and usually lacks domestic political ramifications. In a handful of settings, however, judges who make conspicuous use of foreign law by explicitly citing it in high-profile or controversial opinions can expect to face normative criticism for doing so. Dialogue at the domestic level is associated with alternative forms of judicial review that give legislatures the power to override or avoid judicial rulings of unconstitutionality. Such institutional configurations are said to strike a balance between legislative and judicial supremacy, and to take the sting out of the charge that constitutional courts are inevitably ‘countermajoritarian.’ Scholarly use of the dialogue concept envisions a discursive form of constitutional politics that is differentiated from, and superior to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can be achieved in practice. On the one hand, if ‘dialogue’ is defined in a thin fashion as including any back-andforth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics. On the other hand, if ‘dialogue’ is defined in a thick fashion as substantive exchange on the merits of constitutional questions, there may be no country capable of satisfying the definition. The case of Canada, often held up as the leading example of judicial dialogue, illustrates the severe definitional challenges surrounding the concept. E. James Kelly, Jr., Class of 1965 Research Professor of Law and Courtesy Professor of Politics, University of Virginia; William Nelson Cromwell Professor of Law Emeritus, Harvard University. © David S. Law & Mark Tushnet, 2023. * 2 17 Introduction ................................................................................................................... 2 17.1 Transnational Judicial Dialogue ................................................................................... 3 17.1.1 The Types and Characteristics of the Dialogues that Do Occur .......................... 3 17.1.2 ‘Measuring’ Transnational Judicial Dialogues ..................................................... 5 17.1.3 Why Transnational Judicial Dialogue? ................................................................. 7 17.1.4 Controversies Over Judicial Use of Foreign Law................................................ 12 17.2 Domestic or inter-branch judicial dialogue................................................................ 15 17.2.1 The Case of Canada ............................................................................................. 17 17.2.2 Do Dialogues Actually Occur? ........................................................................... 20 17.2.3 What Counts as a Dialogue? ............................................................................... 20 17.2.4 The Effects of Dialogue on Courts ...................................................................... 22 17.2.5 The Effects of Dialogue on Legislatures ............................................................. 23 17.2.6 The Political Viability and Sustainability of Dialogue ........................................ 24 17.3 The Future of Scholarship on Judicial Dialogue ........................................................ 25 17.4 References ................................................................................................................... 26 17 Introduction The idea of judicial dialogue entered into scholarly discussion in the late twentieth century in connection with two distinct phenomena – one transnational, another domestic. The transnational variety of judicial dialogue occurs among judges in different countries, particularly on topics of a supposedly universal character such as human rights. 1 The domestic variety takes place among apex courts and the political branches within a particular jurisdiction. 2 Each form of dialogue is associated with a form of politics. To oversimplify, judicial dialogue of the transnational variety has been associated with efforts by apex courts, especially constitutional courts, to strengthen themselves by affiliating themselves with prestigious courts and exerting soft power over courts elsewhere. Domestic interbranch dialogue by contrast has been associated with efforts to defend and justify the role of courts vis-à-vis other government actors. In democratic polities, the idea of judicial dialogue bolsters the position of the courts by taking the sting out of the charge that they are being too active and thus behaving in ‘countermajoritarian’ or ‘antidemocratic’ ways. 1 2 See, e.g., Slaughter (2004); Slaughter (2000); Waldron (2005); Law (2015), at 946, 958 (citing examples). See, e.g., Hogg & Bushell (1997); Kavanagh (2016); Law & Hsieh (2022), at 188–90, 192–96, 211–12. 3 Conversely, in transitional or hybrid regimes and other settings where political conditions might favor judicial timidity, the notion of dialogue might instead be used to defend the courts against the charge of being too passive and thus failing to do their duty.3 17.1 Transnational Judicial Dialogue Constitution-making in the second part of the twentieth century had several growth spurts: after 1945 in the defeated Axis powers and some of the nations they had occupied, the 1950s and early 1960s with decolonisation, in the 1970s with the demise of many Latin American dictatorships, and in the 1990s with the end of the Soviet empire. These growth spurts produced and were supported by a utopian project that envisioned a universal legal order capable of regulating and restraining armed conflict, advancing the rule of law, and promoting democracy and fundamental rights. 4 Domestic constitutional law would work hand in hand with public international law toward these goals, mirroring and reinforcing each other in their respective spheres. This post-war project was carried out by state actors in every sector of government, including foreign affairs and trade ministries. As constitutional courts gained domestic power, typically gradually,5 they enjoyed growing opportunities to advance the project by participating in transnational exchanges of their own. Cast in a utopian light, courts and judges could be pioneers in pushing the frontiers of the new order through sincere, egalitarian, and discursive dialogues with counterparts and colleagues around the world. The realities of international relations and domestic politics alike, however, rendered that outcome highly unlikely. 17.1.1 The Types and Characteristics of the Dialogues that Do Occur The dialogue metaphor encompasses more than one type of behavior and thus obscures a number of analytical distinctions. One distinction concerns the type of actors involved in the dialogue. Dialogue can occur among individuals, institutions, or some combination of the two; in the judicial arena, we might distinguish between judge-to-judge (‘J2J’) and court-tocourt (‘C2C’) dialogue, either of which can involve politics in multiple senses of the word.6 At the C2C level, for example, courts may jockey for position and influence vis-à-vis each other on an international stage, as when the Korean Constitutional Court takes the lead in forming an Association of Asian Constitutional Courts and decides who will be tapped to join the club.7 The same type of politics can be observed at work in the J2J setting whenever a coterie of judges decides who will be invited to their latest conference and who will not. See, e.g., Yap (2015), at 22–27; Tew (2020), at 92–106. For a description and critique of this project, see Moyn (2010). 5 Tate & Vallinder (1995). 6 Mak & Law (2022), at 237. 7 Law (2015), at 975. 3 4 4 In the J2J context, however, the politics of transnational dialogue can become more complex and explosive because they have the potential to interact with the internal politics of the court. Participation in transnational networking activities may be highly uneven even among members of the same court. Almost by definition, the participants are likely to be somewhat more cosmopolitan in orientation than their stay-at-home colleagues. These intra-court differences can reinforce existing fissures or generate new ones. Disagreement over the question of whether and when to consider foreign law can become yet another front in the battle among the judges to shape domestic law. A further distinction must be drawn between judicial dialogue of the literal and figurative varieties. 8 Judicial dialogue of the literal variety refers to actual interaction and communication among judges. The mere fact that apex court judges from different countries meet with each other is incontestable and not especially controversial. Professionals in every field interact with foreign counterparts, and there is no obvious reason why judges would constitute an exception. Nor is advancement of a utopian project always on the agenda: mundane questions about effective judicial administration are a frequent topic of discussion, especially at the C2C level. The most visible venues for judicial dialogue in a literal sense include various international and regional organisations of constitutional and apex courts 9 and informal scholarly meetings such as the long-running Yale Global Constitutional Law seminar. To use a metaphor made popular in the late 1990s, there are indeed networks of constitutional court judges.10 The plural matters, though. Judicial dialogue tends to be fragmented and cliquish rather than global and inclusive.11 Most of the networks overlap with others at only a few points, and what matters to participants in one network may be of little interest to those in another. Judicial dialogue of the figurative variety is the focus of a much larger literature, most of it normative, and refers to situations in which judges consider and engage in some sense with what their counterparts elsewhere have said or done. That engagement can involve emulating and endorsing foreign law, or criticizing and rejecting foreign law, or some combination thereof. There is no guarantee that this engagement will occur explicitly, as in the form of a citation to a foreign authority; it can also occur behind closed doors, or in ways that may be visible only to an insider or a trained observer. In many settings, judicial engagement with foreign law is routine or even automatic; in others, such as the United States, it can be highly controversial. Generally speaking, the greater the discretion that Mak & Law (2022), at 236–38. For a partial list of such organisations as of 2009, see Final Declaration, World Conference on Constitutional Justice, Capetown, 22–24 January 2009, available at https://perma.cc/E4B9-DGM4; see also Law (2015), at 975–76; Mak & Law (2022), at 237–38; De Visser (2022). 10 For an analysis of the network metaphor, see Riles (2000). 11 It is even possible for the same court to be divided into multiple cliques, as in the case of the Canadian Supreme Court, where anglophone and francophone judges have access to different transnational networks that track linguistic lines. 8 9 5 judges have in deciding whether to consider foreign law, the more they open themselves to potential criticism for doing so. ‘Dialogue’ is not an especially apt metaphor for this sort of behavior. There may not be any intention on the part of any court or judge to actually communicate with a foreign counterpart. A citation in a judicial opinion is typically intended for the consumption of a domestic audience, not a foreign audience. That remains the case even if the citation is to foreign law. The metaphor of dialogue is also misleading because it conjures up a picture of mutual learning and enlightenment among participants equally empowered to speak and be heard. In reality, the conversations are often not terribly egalitarian – perhaps better described as monologues than dialogues, or transmission from one side to another. 12 Participants carry into these venues the baggage of their nations of origin: those from nations with longer experiences of constitutional review will understandably have a larger ‘data base’ from which they can draw ideas than will those from nations with shorter experiences – and the length of experience correlates with other dimensions of international power. As in other domains of comparative constitutional law, participants from the Global North are likely to dominate the discussions. Even when some judges from the Global South offer novel ideas – such as the idea of enforcing social and economic rights through domestic dialogues and ‘engagement’ remedies13 – their colleagues from the Global North often resist or seek to transform the ideas in ways that limit their transformative potential.14 In other words, this so-called dialogue is saturated with core-periphery dynamics and has a tendency to replicate and reinforce existing hierarchies. In spite of its misleading qualities – or perhaps because of those qualities – the metaphor of dialogue has stuck. It has become the dominant shorthand for the transnational circulation of legal norms, ideas, authorities, and arguments among courts and judges. Its appeal and its power may very well lie in its lack of realism: it is, at root, a utopian metaphor in service of a utopian project. 17.1.2 ‘Measuring’ Transnational Judicial Dialogues That constitutional court judges meet and talk with each other is a mildly interesting fact. The utopian project hopes that the dialogues will have some effects. Determining whether they do is difficult, both at the base level – can we discern any effects of transnational influences? – and at the level of evaluating the significance of the effects we might be able to see. Scholars often use citations to non-domestic decisions as a measure of transnational influence. In practice, the value of doing so can be questioned. Scholars from the common law world might be particularly inclined to rely upon citationtracking. Even within common law systems, this might be misleading. Citation-tracking has the potential to both overestimate and underestimate the influence of foreign See, e.g., Chang & Law (2011), at 528. On engagement remedies, see, e.g., Ray (2016); Rossi & Brinks (2022), at 263. 14 For a discussion, see Davis (2015). 12 13 6 jurisprudence. Overestimation can occur because foreign law citation does not equate to foreign law influence. Some relatively cosmopolitan judges might include such citations as decorations to show how erudite they are. A frequent concern, at least on the normative level, is ‘cherry-picking’: judges decide what they believe is the best interpretation of their constitution, then search the world for materials that support that predetermined conclusion. In such cases, foreign jurisprudence has no effect on judicial deliberations or reasoning and serves merely as window-dressing. Conversely, underestimation can occur because absence of foreign law citation does not equate to absence of foreign law influence. Political sensitivities surrounding judicial use of foreign law may lead to what might be called stealth comparativism, meaning that foreign law is influential but judges make a point of avoiding smoking-gun evidence in the form of explicit citations.15 Underestimation is likely to be especially severe with respect to constitutional courts operating within a civil law tradition in which citations of any sort are sparse or nonexistent. In such contexts, even a foreign opinion that has been genuinely influential may leave no trace in the domestic opinion that is visible to an untrained foreign observer. The constitutional courts of South Korea and Taiwan are cases in point. Both routinely survey foreign law: many of the justices and most of the clerks on the Taiwanese court have studied law overseas, while the Korean court has multiple research arms and a variety of staff charged with surveying various aspects of non-domestic law on issues of interest.16 All of this knowledge and research may actually affect the substance of the decision yet is unlikely to manifest itself in the form of explicit citations to foreign material.17 Even when citations occur, their significance can be exaggerated. For example, Niels Petersen cites the interaction between the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR) as evidence that judicial dialogue is not always a ‘one-way street,’ even between courts of admittedly unequal influence. 18 Empirically speaking, the exchange between the two courts is a heavily lopsided one in which the latter court routinely cites the former, but not vice versa. Petersen seizes upon the IACtHR’s recognition of positive state obligations to prevent violence against women, and the ECtHR’s subsequent citation of that decision in the course of adopting a similar approach, as evidence of genuine dialogue between the two courts as opposed to mere monologue. Even in this isolated case, however, the relationship between the two courts smacks more of master and apprentice, or core and periphery, than of dialogue between equals: the high-prestige court does the big-picture work of fashioning an overall framework for equality jurisprudence, while the sidekick fills in the details of that framework in the specific context of violence against women. The master draws the lines; the apprentice colors within the lines. See, e.g., Law (2005), at 738 (citing the Canadian example of Justice Ivan Rand’s use of U.S. free speech jurisprudence). 16 For a description, see Law (2015), at 964–73. 17 Chang & Law (2011), at 533; Law (2015), at 700. 18 Petersen (forthcoming). 15 7 Empirical studies have identified some features of citation practices, with some implications for understanding the politics of these processes. Within Europe, most courts have a ‘favourite’ source for non-domestic citations: Ireland to the United Kingdom; Austria, Spain, and Switzerland to Germany; Belgium and Italy to France.19 These patterns are not random but instead reflect historical relationships of prestige and power, if not imperialism and outright colonialism. Thus, in Asia, Hong Kong and Singapore look to English-speaking common law courts, while Taiwan and South Korea continue to take at least some of their cues from Germany – an enduring vestige of the choices made by their Japanese colonial masters. Language skills are a major reason why judges cite some courts but not others, a fact that leads Gelter and Siems to offer the policy prescription that ‘countries should provide English translations of their highest court decisions.’20 This would reinforce the role of English as the new lingua franca, reproducing Imperial Rome’s transnational power in the modern era.21 The empirical literature on citation practices is relatively thin and tends to focus on the same handful of countries, mostly in the Global North.22 The studies do suggest that the ‘usual suspects’ – the ECtHR, the German Federal Constitutional Court, and the apex courts of Canada, the United States, and the United Kingdom – are the major ‘providers’ of citations or exporters of jurisprudence, although some are more influential within a particular network or peer group. Hirschl suggests that these choices ‘reflect the judicial image of the “right” culture and “suitable” set of values the borrowing polity ought to follow.’ 23 The resulting engagement, he continues, ‘is at least as much an identity-constructing political phenomenon as it is a juridical one.’24 17.1.3 Why Transnational Judicial Dialogue? The main reasons for which constitutional judges engage in TJD can be divided into four broad categories: (i) legal and institutional, (ii) functional, (iii) normative, and (iv) diplomatic. Motivations can also vary according to the type of actor. Individuals and institutions are not always aligned in their approach to foreign law; nor are individuals within the same institution. Individual judges may embrace or reject TJD for reasons that are not shared by their respective colleagues or institutions, and such divergence generates its own species of intra-institutional politics. (i) Legal and institutional reasons. The twentieth-century proliferation of transnational legal regimes has ensnared domestic and transnational courts alike in a complex web of legal and institutional relationships that incentivize or require them to deal with each other on a regular basis. This entanglement potentially exists to some degree Gelter & Siems (2012). The article examines non-constitutional as well as constitutional courts. Ibid, 93. 21 See van Parijs (2011). 22 Hirschl (2014), at 39; Groppi & Ponthoreau (2013). 23 Hirschl (2014), at 39. 24 Ibid, 76. 19 20 8 wherever national courts must contend with international law and international tribunals – which is to say, everywhere – but is most obvious and extensive in Europe 25 and also prominent in Latin America, 26 both of which are home to overlapping and sometimes competing regional courts. The coexistence of multiple legal orders that pursue shared goals such as rights protection and economic integration calls for courts to coordinate as well as compete with each other. The resulting genre of judicial politics involves a mix of vertical and horizontal interaction, much of which might be described in some sense as dialogic. Vertical interaction – meaning interaction of a hierarchical variety – occurs for example when domestic courts are formally obligated to respond to decisions by regional courts. Often, these responses amount to nothing more than routine efforts by domestic courts to faithfully apply governing law that happens to be transnational in origin. Sometimes, however, these responses occur in terms that might be described as inviting or constituting dialogues of the sort described in Section 2 of this Chapter. Even when transnational and domestic courts stand in a hierarchical relationship to one another, their interaction often involves a measure of give-and-take as opposed to command-and-control.27 Transnational courts may have limited means at their disposal for compelling national courts to do their bidding, while national courts may have both the motivation and the means to resist claims of supremacy by transnational courts. Instead of wholesale capitulation, for example, national courts may reserve themselves the right to impose national constitutional limits on the reach of transnational law.28 The result is a backand-forth – some might say dialogue – over questions of ultimate legal power and authority. Horizontal interaction – meaning interaction among coordinate institutions – can occur among courts anywhere. By their very nature, however, transnational legal orders and regional integration projects tend to place courts that cannot command each other in the position of having to coordinate and cooperate with each other. Extensive yet nonhierarchical interaction can be expected among domestic courts that belong to different countries but operate within the same supranational legal framework, and transnational courts that belong to different transnational legal orders but operate within the same territory (e.g., the ECtHR and the European Court of Justice (ECJ)).29 Much of this interaction is uncontroversial insofar as courts are merely trying to teach and learn from each other. Highly developed transnational legal orders like the European Union and Council of Europe presuppose judicial mastery of substantive law across dozens of borders and languages, and the development of such mastery calls for copious inter-judicial See, e.g., Mak & Law (2022), at 251–52. See, e.g., Alter & Helfer (2017), at 103–10. 27 Lübbe-Wolff (2019). 28 See, e.g., Mak & Law (2022), at 253–54 (discussing the German ‘Solange’ doctrine and the 2013 Melloni case). 29 Ibid, 249–51. 25 26 9 communication. This pedagogy frequently occurs behind the scenes through formal and informal networks and channels of communication; some of it occurs publicly through the medium of judicial rulings. Extracurial comments can also play a part in this pedagogy. For example, national judges on the European transnational courts not infrequently address their domestic counterparts to explain and justify what the transnational courts do. In so doing, they function almost like diplomatic envoys. Representatives of the political branches act similarly with respect to matters within their purview. Other instances of horizontal interaction, however, more closely resemble political power struggles in which coordinate courts fight over turf out of self-interest; the clash between the ECJ and the ECtHR is a case in point.30 In these situations, courts can be expected to attempt something resembling dialogue as opposed to diktat, for the simple reason that diktat is not an option. Such dialogue partakes more of bargaining and negotiation than didacticism and pedagogy, and it is foreseeable if not inescapable whenever the legal and institutional environment requires competing courts to coexist and cooperate. (ii) Functional reasons. The most innocuous normative justification for TJD – and a justification that judges themselves tend to give31 – is functionalist in character and proceeds from a fairly straightforward and plausible empirical premise. In Justice Breyer´s pithy formulation: ‘Judges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances.’32 Their fundamental and pervasive similarities mean that they have much to learn from each other, much as skilled professionals and elites in other fields stand to learn from colleagues and peers elsewhere. To elaborate, all constitutional court judges perform roughly similar tasks, both in giving specific content to general protections of human rights and in attempting to develop systems of governance that work effectively to promote the welfare of their respective peoples. They have roughly similar training and today have roughly similar outlooks on their duties as constitutional interpreters. And, in general, they face roughly similar constraints on what they can do, both political (all know that they cannot get too far out of line with the positions taken by the political branches lest they face irrelevance or worse) and functional (all know that they are better at dealing with what Lon Fuller called bilateral conflicts than with polycentric ones).33 There clearly is something to this, but arguments familiar from the field of comparative law show how much work the word ‘roughly’ is doing here. Differences in the overall institutional settings within which courts operate can have profound consequences for the applicability of foreign experience and the suitability and viability of judicial transplantation. For example, courts in parliamentary systems face different constraints from those in presidential and semi-presidential systems; so do courts in systems with wellorganised, stable, competitive multi-party systems as opposed to those in systems with See, e.g., ibid, 250–51, 256–58 (discussing the European Court of Justice’s rejection of EU accession to the European Convention on Human Rights). 31 See, e.g., Breyer (2015), at 249–80; L’Heureux–Dubé (1998). 32 Breyer (2003). 33 Fuller (1978), at 371. 30 10 chaotic party structures or single-party dominance. Historical traditions matter in shaping judicial understandings about what is acceptable and achievable: judges operating under the traditional French suspicion of gouvernement des juges, for instance, will experience more constraint than common law judges accustomed by tradition to thinking of themselves as lions under the throne. Most of the institutional historical, and doctrinal features that constrain and empower judges are matters of degree, and the number of dimensions along which variation can occur means that dissimilarities might overwhelm the functional similarities to which Breyer points. (iii) Normative reasons. The ongoing post-war utopian project embraces TJD as a mechanism for bringing about an enlightened legal order that transcends borders. This project is defined to no small degree by an impulse to articulate universalistic claims about human rights, and to encourage a brisk international traffic in such claims. Precisely because human rights inhere in humans as such, anyone deliberating about such rights – including courts – has as much warrant as everyone else and can provide insights and information about the content of fundamental human rights. As Jeremy Waldron among others has suggested, transnational judicial dialogues accumulate to produce a modern ius gentium, a new natural law that does not depend upon the endorsement through pre-existing statutory or constitutional law by any individual national government.34 In constructing the new natural law, courts have every reason to engage with each other. Conversely, though, universalism means that no court has more warrant than any other in articulating the content of fundamental rights. A domestic court can fairly say that its own rational deliberation about that content leads it to conclusions at odds with those drawn by other courts, which (on its view) have made a moral-deliberative error. Universalist invocations of foreign law are also open to the standard comparative-law argument that the concretisations of abstract human rights should be sensitive to local conditions. For example, the specific national histories of Germany and other nations that have produced genocides might reasonably lead their courts to disregard the conclusions about the permissibility of hate speech regulation drawn by courts in nations with no such histories (or lesser or more remote ones). The utopian project can at best pin its hopes on the prospect that constitutional courts will over time converge on ‘rules’ at a perhaps intermediate level of specificity/generality (for example, a suspicion of broad bans on hate speech, perhaps, coupled with an acknowledgement that narrow ones might be consistent with fundamental human rights). At present, however, such convergence is difficult to discern save perhaps on a few issues, such as hate speech regulation and the need for some system of effective remedies for violence against women. (iv) ‘Diplomatic’ reasons. As already suggested, the asymmetry of various forms of TJD – from institutional interconnections to citation practices – reflects and constitutes power relations. By every obvious measure, cross-fertilisation, mutual learning, and judicial 34 Waldron (2005), at 132. 11 dialogue of both the literal and figurative varieties manifest and reinforce well-established Global North/South dynamics.35 Ambitious judges are aware of these power relations and their place in the world, and they seek to climb the ladder by keeping the right company and cultivating the right relationships. Relations with foreign courts and judges become a vehicle for the pursuit of power and influence both at home and abroad. The phenomenon of judicial diplomacy is unremarkable in the sense that courts and judges are simply behaving like other state actors. It is not obvious why judges would or even should be wholly indifferent or oblivious to the same kinds of goals and considerations that motivate other government actors and institutions in their interactions with foreign counterparts. This jockeying for position within established hierarchies occurs among not only courts and judges, but also other prestige-minded actors such as elite institutions of higher education – law schools and university departments and programmes – which compete to host gatherings of apex court judges. The educational institutions hope to gain status from hosting these events, and the judicial participants hope to gain status among their domestic peers by demonstrating their affiliation with prestigious foreign and international institutions that have high reputations at home. The reputational benefits of virtue by association – running with the right crowd – may be particularly great for judges in countries with weakly established judiciaries, and among peers who have attended these elite institutions themselves. These cosmopolitan judges may not be representative or typical, however, and there is consequently a risk that their public preening and intellectual climbing can backfire. The ‘stay at home’ judges who do not participate in such networking activity may bristle at anything that smacks of foreign idolatry or cosmopolitan elitism and disdain the efforts of colleagues to capitalize on their foreign connections. Within these transnational networks, prestige and credibility are commodities that courts and judges pursue and bestow in service of a variety of goals that go well beyond the adjudication of cases or the enhancement of judicial reasoning. The result is a distinctive species of judicial politics, which we might call ‘prestige-trafficking.’ Prestige-trafficking can occur horizontally among peers (for example, via the formation of exclusive clubs that reinforce the status of all involved) or vertically among courts of unequal status. Like other commodities, prestige can be either exported or imported. Exportation occurs when a high-prestige donor court or judge cites a lower-prestige court in order to bolster the domestic standing of the court being cited. This is a form of ‘judicial foreign aid’ flowing from a well-endowed nation to a less well-endowed one, wherein the From time to time, these dynamics can be reversed, and influence can run from periphery to core. Even in those rare cases when it is lower-prestige courts that innovate and higher-prestige courts that emulate, however, the effect can be to consolidate rather than disrupt the pecking order: the dominant courts may treat the innovations as akin to the contributions from talented students who show talent and promise but do not reach the height or threaten the position of their seniors. See, e.g., supra text accompanying note 18 (distinguishing between the leadership role of formulating overarching frameworks and the supporting role of applying and fleshing out the framework in specific contexts). 35 12 recipient benefits from virtue by association. The cited court benefits from being treated like a peer institution by the citing court, but it benefits from this treatment precisely because it is not, in fact, a peer institution. The greater the prestige gap, the bigger the potential boost for the cited court – and the higher the risk too that the citing court will attract criticism for stooping below its station.36 Importation occurs when a lower-prestige or weaker court cites a high-prestige one. In this scenario, the citing court might hope that its domestic audience will view the domestic court as aligned or affiliated in some weak sense with another court, and that the resulting halo effect will strengthen the court domestically. Alternatively, or additionally, the citing judges might see themselves as something like envoys from a weaker nation seeking approval or validation from a stronger one. Potential benefits to the citing court include the prestige of appearing to belong to a prestigious club and the validation that comes from adopting a respected external benchmark and obtaining the implicit endorsement of the cited court. This kind of aspirational behavior by a lower-status court is mutually beneficial: the higherstatus court benefits as well from the appearance of being influential and playing a leadership role. Courts almost invariably stand to benefit from being cited with approval, but the benefit for the cited court is likely to be greater when the citation goes against the pecking order and the citing court has greater prestige than the cited court. Prestige-trafficking can in some cases generate tangible connections and judicial networks of the type Slaughter identified37 and transform figurative dialogue into literal dialogue. An aspirational citation, for example, can lead to an invitation to participate in a conference of high court judges, and a ‘foreign aid’ citation can lead to an invitation to deliver a highvisibility lecture in the recipient nation. 17.1.4 Controversies Over Judicial Use of Foreign Law Controversy over judicial comparativism is rare but not random. In most of the world, the practice of adverting to non-domestic law is either routine or uncontroversial on those few occasions when it occurs. Nevertheless, in the 1990s and early 2000s, a curious political controversy broke out in the United States over the use of references to non-U.S. law in constitutional adjudication. 38 Singaporean judges similarly insisted that their constitution had to be interpreted within the ‘four walls of domestic sources. 39 Risk factors for controversy include both the type of case and the manner of usage. Thus, for example, Justice Breyer explained his citation of a Zimbabwe Supreme Court decision as a way of trying to give that court ‘a leg up,’ and in the face of criticism for doing so, he later confessed to ‘tactical error’ in citing to the case law of a country that is ‘not the human rights capital of the world.’ Stephen Breyer & Antonin Scalia, Assoc. Justices, Supreme Court of the United States, A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication, Discussion at the American University Washington College of Law (Jan. 13, 2005), available at https://perma.cc/KV2T-3ATG. 37 See, e.g., Slaughter (2000); Slaughter (2004). 38 See Law (2005), at 699–701. 39 Lee (2007), at 124–33. 36 13 With respect to the type of case, consider a statute challenged as inconsistent with a fundamental human right inscribed in the domestic constitution. In these situations, the stakes are inherently high – a human rights claim on one side, legislation and principles of democratic self-government on the other – and the potential for controversy rises accordingly. Suppose further that there is no obligation or authority on the part of the domestic courts to look at jurisprudence from elsewhere. (In other words, this is not the case of a national court interpreting a binding regional or international human rights instrument over which courts elsewhere exercise interpretive authority; nor is it the unusual case of a national court explicitly empowered to take non-domestic law into account. 40 ) Instead, advocates or judges choose entirely of their own accord to identify foreign laws or decisions that suggest that the domestic statute is consistent or inconsistent with an international consensus or an emerging trend. Here, the consideration of foreign law courts a greater risk of normative criticism because it is voluntary, in the sense of lacking any mandate in domestic law or perhaps even international law. In terms of manner of usage, foreign law can influence the process of deliberation, the process of justification, or both. First, consideration of the foreign decisions may shape the thinking of either or both sides and weigh in favor of a conclusion that the statute is consistent or inconsistent with a reasonable understanding of the domestic constitutional provision. Second, either or both sides may cite these foreign decisions to support their conclusion one way or the other. These two behaviors can and do occur independently of each other. It is possible for foreign law to influence the way judges think about a problem without leaving visible traces in their output, or alternatively to serve as ex post justification for conclusions that judges have reached on other grounds. Comparativism of the type that occurs only within the process of deliberation is inherently unlikely to attract controversy, for the simple reason that it is largely invisible. Courts may fail to acknowledge the influence of foreign law for a variety of reasons. A desire to avoid controversy or resistance is one possibility, 41 but it is far from the only explanation. The reasons may be as banal or innocuous as a traditional aversion to the use of citations – foreign or otherwise – or an aesthetic objection to the mixing of roman and non-roman characters.42 Closet comparativism of this type is more common in the civil law world than in the common law world, in no small part because civil law courts are much less inclined on average than common law courts to cite case law of any kind – foreign or otherwise. This difference in citation practices means that judicial comparativism runs a higher risk of criticism in common law countries than in civil law countries. The greater citation transparency of common law countries could explain why controversy over the practice has in fact been confined to a small number of common law countries. Even if explicit judicial The Constitution of South Africa § 39 (1) directs national courts to consider foreign law when and to the extent that it is relevant: ‘When interpreting the Bill of rights, a court, tribunal, or forum … must consider international law; and … may consider foreign law.’ 41 See, e.g., Law (2005), at 738 (citing the example of Canadian Supreme Court Justice Ivan Rand’s use of American free speech jurisprudence). 42 See Law (2015), at 947, 962, 976–77 (citing Taiwan and Korea as examples). 40 14 citation of foreign law is a necessary condition for controversy to occur, however, it is not a sufficient condition. The well-worn comparative law distinction between common law and civil law countries cannot by itself explain or predict when and why controversy erupts. Most of the common law world has no problem with judicial usage of foreign law, of either the deliberative or justificatory variety. Indeed, the common law tradition is in some ways inherently more conducive to the practice due to an understanding of the common law itself as inherently transnational in character, a heritage that is shared freely and reciprocally among the mother country and her progeny. In addition, a number of structural factors render controversy over judicial comparativism unlikely in common law and civil law countries alike. In much if not most of the world, a substantial dose of instruction in comparative law is de rigueur for all lawyers. Looking outside the nation’s boundaries for material that might be instructive in solving a problem is part of the ordinary lawyer’s toolkit. Moreover, even when critical attention does turn to the practice of judicial comparativism, the functionalist argument offers what would appear to be a universally applicable rejoinder: in seeking to solve a problem, why should judges close their minds from the outset to information that might help them think about the best available solution? That is a powerful argument on its face, but there are at least two ways in which prevailing notions about the proper (or exclusive) mode of constitutional interpretation might nevertheless preclude looking elsewhere. The Singaporean ‘four walls’ approach illustrates one possibility – namely, that conditions everywhere else are deemed so dissimilar as to render all foreign experience irrelevant and uninstructive. 43 Judges in Singapore have expressed the view that circumstances there are so distinctive that nothing can be gained by looking elsewhere.44 The practical result is to legitimate an approach to civil and political rights that is relatively stingy by both Western and common law standards. This result is unsurprising in light of the constitutional politics of Singapore, which are characterized by judicial deference to an entrenched semi-authoritarian government that has little reason to support judicial limits on its own authority.45 Another possibility, relevant mainly in the United States but on occasion elsewhere, 46 centres around the concept of originalism, which in all its many forms directs primary, and sometimes even more forcefully exclusive, attention to the precise historical circumstances of the nation’s adoption of its constitution. Academic constitutional theory sometimes influences judicial practice, and in the United States, it has become a weapon in partisan contention over constitutional interpretation. For reasons peculiar to the United States,47 Lee (2007), at 124–33. Ibid. 45 Tew (2014), at 825. 46 See, e.g., Tew (2014), at 801 (discussing Malaysia and Singapore); Greene (2009), at 40–61 (discussing Australia); Varol (2011), at 475 (discussing Turkey). 47 TerBeek (2021); Teles (2008). 43 44 15 originalism took on a conservative coloration.48 Originalism directs attention backward and inward: in other words, it tends to lock in existing practice and lock out external influence. References to foreign law are by contrast seen as tilted toward liberals, especially when used to support arguments about a practice’s unconstitutionality. Comparativism’s ideological association with the left was reinforced by the fact that the growing conservatism of the U.S. Supreme Court increasingly placed it at odds with its foreign counterparts, which were generally moving in a liberal direction (or at least were staying put as the U.S. Supreme Court moved to the right). Controversy over references to non-U.S. law peaked in the early 2000s, then basically disappeared as the composition of the court shifted and such references became confined to liberals’ dissents or disappeared altogether.49 17.2 Domestic or inter-branch judicial dialogue Judges around the world have long understood that their words do not merely resolve disputes among litigants but also have an audience beyond the courtroom.50 Their rulings double as vehicles for instructing and informing the public about civic virtue and more.51 Constitutional court judges in particular may feel a unique sense of responsibility for advancing popular understanding and acceptance of the nation’s legal foundations. In recent decades, many became enamored of the possibility that such didacticism might give way to dialogue. The idea, and the hope, was that the public could legitimately talk back to the courts – not simply by repudiating their decisions via constitutional amendment or the selection of more congenial judges, but in a real dialogue that engages both the courts and the public (or at least their legislative representatives) in a deliberative conversation about the constitution’s meaning.52 Scholarly interest in the possibility of such dialogue was piqued when a handful of common law countries began to experiment in the 1980s and 1990s with nontraditional or ‘soft’ forms of judicial review that called upon courts to render rulings of unconstitutionality yet at the Despite its inevitable focus on the past, originalism need not be conservative. Some South African constitutionalists contend, for example, that adhering to the original understanding of that nation’s constitution would produce a transformative constitutional order. See Davis & Klare (2010). Brazil’s constitution, as originally adopted in 1988, was explicitly progressive and transformative, and so an originalist approach might be expected to yield progressive and transformative results. Moreira (2022), at 351, 359–61. In the case of Turkey, originalism would entail a firm commitment to secularism that is anathema to conservative religious forces. Varol (2022), at 474, 477, 488. 49 For a conspicuous counterexample, see e.g. Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228, 2270 (2022) (citing the practices of other countries to help justify the elimination of the constitutional right to abortion prior to viability); ibid, 2312 (Roberts, C.J., concurring in the judgment) (same). 50 See, e.g., Lerner (1967) (describing early efforts by US Supreme Court justices to discuss politically freighted official actions, mostly instructions given to local grand juries, in ways that publicized and conveyed their understanding of why the US Constitution deserved citizens’ respect). 51 The increasingly widespread practice of televising or live-streaming arguments in constitutional courts and the announcement of decisions is a modern manifestation of this judicial didacticism. Sombra (2016). 52 To avoid cluttering the text, we refer to the domestic dialogues dealt with in this section simply as dialogues. They should not be confused with the transnational dialogues discussed in Section 1. 48 16 same time gave legislatures the formal power to override, modify, or avoid those rulings. It was argued that such arrangements could strike a balance between the problematic extremes of legislative and judicial supremacy and take the sting out of the charge that constitutional courts are inevitably “countermajoritarian.” The idea of constitutional dialogue fit comfortably within a late twentieth-century understanding that contemporary constitutionalism required and produced a ‘culture of justification.’ 53 Contemporary constitutionalism is simultaneously characterized by rampant rights talk and by equally widespread acceptance of the need for limitations on constitutional rights. The result is an endemic need for the justification of rights limitations. The dialogic conception of constitutional law offers, on its face, a normatively attractive model of how such justification might occur: namely, the process might encompass courts and legislatures alike, and it would not give the last word to any particular actor but instead invite a back-and-forth between good-faith actors with shared responsibility for upholding the constitution. In other words, this model envisions a discursive form of constitutional politics that is differentiated from, and preferable to, the usual politics surrounding judicial review. However, it is unclear whether such a distinctive and elevated species of politics can actually exist in practice. The difficulty of realizing these normative ambitions becomes apparent when one attempts to define “dialogue” in concrete terms and identify actual examples. On the one hand, if “dialogue” is defined in a thin fashion as including any back-and-forth on constitutional questions between legislatures and courts, the concept becomes so broad as to be indistinguishable from ordinary politics and ordinary practice. For example, courts frequently enforce laws while at the same urging legislators to amend or repeal them, and legislators frequently heed such calls to action. Likewise, courts often strike down laws while suggesting ways in which the same objectives might be pursued within constitutional bounds, and legislators are often happy to take the hint. Whether through dicta, advisory opinions, decisions with delayed effect, or other mechanisms, judges have long found ways of communicating to legislators and inviting a response. Nor is there anything novel about legislators expressing their constitutional views to courts. It is a time-honored view in American constitutional theory, known as departmentalism, that upholding the constitution entitles and even obligates each branch of government to interpret the constitution for itself and to explain its views. If all of this and more counts as “dialogue,” then the concept offers nothing new and nothing that transcends ordinary politics. On the other hand, if “dialogue” is defined in a thick fashion as substantive exchange on the merits of constitutional questions, it is unclear whether any country qualifies. There is widespread disagreement over what qualifies as dialogue and how prevalent it happens to be, but to the extent that any country makes the cut, it would appear to be Canada. As an instrument for facilitating inter-branch dialogue, section 33 of the Canadian Charter of Rights and Freedoms – known also as the notwithstanding clause – has drawn considerable 53 Mureinik (1994), at 32. 17 scholarly attention, 54 and some modest political attention, though it has not been much emulated in recent constitutions.55 At the same time, however, there is a running debate over whether even Canada qualifies as having genuine dialogue. If the definition is sufficiently thick – and it may not need to be especially thick – then even Canada flunks. 17.2.1 The Case of Canada In 1997, Canadian scholars Peter Hogg and Allison Bushell argued that Canada’s constitutional arrangements had created the opportunity for dialogue between courts and legislatures, and – more important perhaps – that such dialogue had actually occurred. 56 Hogg and Bushell pointed to two features of the 1982 Canadian Charter of Rights and Freedoms: its inclusion of a general limitations clause in section 1 stating that the rights the Charter contained were subject to parliamentary limitation when such limitations were ‘demonstrably justified in a free and democratic society’; and section 33, giving the national and provincial parliaments the power to ‘expressly declare’ that one or more of their acts ‘shall operate notwithstanding’ several of the Charter’s rights-guaranteeing provisions for a five-year period (the term being long enough to encompass an election between the time of the declaration and the time when it might be renewed). The political origins of these provisions deserve note. In negotiations over the Charter, the federal government favored an entrenched bill of rights that would be binding upon the provincial and federal governments alike, whereas the provinces generally did not and feared that judicial enforcement of the Charter might unduly limit the scope of provincial legislation. The federal government initially sought to assuage the provinces with a limitations clause as opposed to a legislative override but was ultimately forced to accept some version of both.57 The general limitations clause was modeled upon a provision in the International Covenant on Economic, Social, and Cultural Rights (1966) (Article 4: ‘such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society’) and is an example of the modification of off-the-shelf constitutional provisions to fit local circumstances.58 The notwithstanding clause was a ‘classic example of raw bargaining’ that found its way into the Charter at a very late stage at the insistence of the provinces as a condition of their approval.59 Several provincial leaders were expressly concerned that the Charter would displace parliamentary supremacy with judicial supremacy. The federal An early and influential account is Tushnet (1995). Most prominently, critics of the liberalizing tendencies of the Supreme Court of Israel after its ‘constitutional revolution’ in 1995 have recurrently proposed to introduce legislative override clauses into the country’s Basic Laws. See Cohen & Shany (2023). For a comparative discussion of Canada and Israel, see Weinrib (2016). 56 Hogg & Bushell (1997); see also Hogg, Bushell Thornton & Wright (2007). 57 Hiebert (1996), at 1–31. 58 Frankenburg (2010). 59 Romanow, Whyte & Leeson (1984), at 211. 54 55 18 government relented but secured the compromise that any legislative override of Charter rights would have to be reenacted after five years.60 Judicial opinions typically offer justifications for their outcomes. A dialogic understanding of the constitution created the opportunity for legislatures to collaborate with courts in doing so as well. So, for example, the Canadian general limitations clause invited parliaments to offer justifications for the limits it placed on constitutional rights and, again more important to Hogg and Bushell, to respond to a court decision striking down a limitation by reenacting it (or some close substitute) and augmenting the legislative record with a stronger ‘demonstration’ that the limitation is indeed justifiable in a free and democratic society. Dialogue could occur as well with the notwithstanding clause. Parliament would enact a statute; the court might hold it unconstitutional based on its interpretation of some constitutional provision; and parliament could respond by reenacting the statute with an express declaration that parliament interpreted the constitutional provision differently. On this understanding, dialogues would have at least three rounds: a legislative initiative, a judicial response, and a legislative reaction – perhaps followed by another round in the courts. The requirement that any legislative override must be renewed after five years potentially pulls the public into the dialogue as well by giving it a chance to respond at the ballot box. Domestic dialogues of these sorts actually occurred, according to Hogg and Bushell. When the court struck down regulations on advertising by dentists as overly broad, for example, Hogg and Bushell described a subsequent legislative enactment of narrower regulations, which the court upheld, as dialogic. They treated legislation modifying existing statutes to eliminate provisions the court held unconstitutional similarly. And, in an important example, they discussed legislative responses to judicial decisions holding that legislatures had unconstitutionally denied some protected groups benefits provided to others, and remedying these equality violations by 'reading up' the relevant statutes to extend the benefits to the excluded groups. Hogg and Bushell acknowledged that legislatures could respond to the ‘reading up’ remedy by denying the benefit to everyone, though they also observed that political pressures would typically lead legislatures to acquiesce in reading up. At least in principle, sometimes the financial costs of reading up a benefits programme could sometimes lead to repeal of the programme entirely, or, alternatively, extension of the benefit to all but also reduction of its size, also to all. For Hogg and Bushell, acquiescence was ‘a policy choice.’61 Hogg and Bushell included in their article’s title a sly parenthetical: ‘Perhaps the Charter of Rights Isn’t Such a Bad Thing After All.’ Why might some have thought it a bad thing? Because it was enacted against a background tradition of parliamentary supremacy and had been resisted by leaders of some Canadian provinces for the very reason that it appeared to replace parliamentary supremacy with judicial supremacy. For Hogg and Bushell, dialogues within the overall constitutional system would produce a hybrid of parliamentary and 60 61 Ibid; Leeson (2001), at 297, 312. Hogg & Bushell (1997), at 91. 19 judicial supremacy. The Charter wasn’t such a bad thing because it did not empower the countermajoritarian courts to conclusively determine constitutional meaning; indeed, some might say that dialogue took off the table the very claim that the courts were countermajoritarian. Much of the initial literature on domestic inter-branch dialogue focused on a group of common law countries – including not only Canada, but also the United Kingdom and New Zealand – that sought to institutionalize (or stumbled into) mechanisms for reconciling the post-World War II popularity of judicial review and entrenched rights with their own long traditions of parliamentary sovereignty. 62 These countries settled on some form of what Mark Tushnet calls ‘soft’ as opposed to ‘hard’ review, where softness and hardness refer to the degree of ease or difficulty with which legislatures may lawfully prevail over courts on constitutional questions.63 In a system with even softer review than Canada, for example, the courts might lack the power to set aside laws even provisionally. They might be limited merely to declaring that a law is unconstitutional, or giving a limiting construction to questionable laws, and the legislature would then decide in the first instance whether to do anything about it. Inertia thus favors the legislature, but this arrangement is still dialogic in the sense that both the legislature and the judiciary have the opportunity to weigh in. This is the situation in Gardbaum’s other examples of the United Kingdom and New Zealand.64 Conversely, in a system of ‘hard’ or ‘super-hard’ review, the legislature cannot override the courts and must amend the constitution in order to prevail, and even then, it might face a further response in the form of judicial invalidation of the constitutional amendment.65 This too can be characterized as dialogue. Indeed, it might even be considered an especially rich or sustained form of dialogue, in the sense that the possibility of judicial review of constitutional amendments adds yet another round of inter-branch back-and-forth over what the constitution permits. The problem that comes into view is, of course, that the concept of dialogue occupies a slippery slope and threatens to swallow everything. It is hard to imagine any system that lacks dialogue in the sense that courts and legislatures have no opportunity to respond to and disagree with each other. The thin definition does not demand or assume the adoption of ‘soft’ review.66 Instead, it is satisfied anywhere that the legislature and the judiciary act to any extent as checks and balances upon each other. In other words, it is satisfied by every country that has any kind of constitutional politics. That describes every constitutional Gardbaum (2013) (lumping together Canada, the United Kingdom, and New Zealand); Gardbaum (2001). Tushnet (2003a), at 2781–82. 64 Gardbaum (2013), at 135–38, 159, 169–74. 65 Law & Hsieh (2022), at 186–88 (distinguishing among ‘soft,’ ‘hard,’ and ‘super-hard’ varieties of review). 66 Almost none of the instances of dialogue identified by Hogg & Bushell (1997) involved any actual or threatened use of the legislative override power. On their account, most dialogues consist of the legislature modifying a judicially impugned law so as to address the court’s concerns in some way, which can occur just as easily in countries with traditional ‘hard’ review. 62 63 20 democracy in the world, and quite a few non-democratic countries as well. Yet there is nothing inherent in the inherently loose metaphor of ‘dialogue’ to rule out such a definition as wrong. 17.2.2 Do Dialogues Actually Occur? Political scientists Christopher Manfredi and James Kelly challenged Hogg and Bushell’s claim that genuine inter-branch dialogue has actually occurred in Canada.67 They argued that Hogg and Bushell defined the category of dialogue too broadly – for example, by ‘counting every legislative sequel [as] evidence of dialogue,’ and by minimising judicial supremacy by saying that legislative tweaks to bring a statute into line with the court’s requirements were dialogic.68 Perhaps the most important challenge, though, arises from the fact that what Canadian scholars call ‘in your face’ responses to court decisions are rare – and have been given a pejorative name at that.69 An ‘in your face’ response is a direct challenge to what the Court has held. One of the most prominent Canadian examples involves a Supreme Court decision holding unconstitutional a common law rule that prevented a criminal defendant charged with sexual assault from negating the usual intent requirement by showing that he was drunk when the assault occurred. 70 Parliament responded with an ‘in your face’ statute enacting into law almost every component of the common law rule. After the Supreme Court invalidated the new legislation, Parliament responded with a halfway measure, allowing liability where the defendant was negligent in becoming intoxicated. 71 Yet even that particular example might not count as a constitutional dialogue between legislature and court because the court’s initial decision rested on an analysis of the common law’s constitutionality and did not deal with a statute that had some democratic warrant supporting it. 17.2.3 What Counts as a Dialogue? Some of the disagreement about the extent of dialogic constitutionalism arises from disagreement about what counts as a dialogue. How should dialogue be defined, and what scenarios satisfy that definition? A thin definition answers such questions by treating all interaction between courts and legislatures as dialogic, but at the cost of rendering the concept meaningless. Once one attempts to give the concept any teeth, many questions about what counts as dialogue prove to have no straightforward answer. For example, what if the court and the legislature do not even appear to be addressing the same question or do not even purport to disagree over the meaning of the constitution? If the legislature accepts Manfredi & Kelly (1999). Ibid, 519. 69 Roach (2006). 70 R. v. Daviault, [1994] 3 S.C.R. 63. 71 R. v. Brown, 2022 SCC 18; Bill C-28, enacted 23 June 2022. 67 68 21 or expresses no view on the court’s interpretation of the constitutional rights at issue and simply wishes to override those rights, does that count as dialogue? This is far from an obscure hypothetical. Section 33 itself does nothing to guarantee that a legislative override is the product of disagreement over constitutional meaning. It grants the legislature the power to enact laws ‘notwithstanding a [specified] provision’ of the Charter, which is different from saying, ‘notwithstanding a court’s interpretation’ of that provision. The legislature may use this power not only if it disagrees with judicial interpretation of the Charter, but also if it simply does not wish to be bound by the Charter – which is precisely what happened when the Quebec government enacted a blanket override applicable to all laws.72 In what sense, if any, can this be called dialogue? Consider for example the question of whether legislative acquiescence to a judicial decision should be counted as dialogic. The answer unfortunately is: ‘sometimes yes, sometimes no.’ Consider a minor provision in a larger law held unconstitutional. The provision might have slipped in almost unnoticed and even if noticed enacted without any legislative consideration whatever of its constitutionality. Any constitutional violation in this scenario is inadvertent and reflects what Dixon calls ‘legislative blind spots.’73 Legislative acceptance of the court’s decision could reflect a considered judgement that the court correctly identified a problem that the legislature overlooked – an example of dialogue. Acquiescence, though, might reflect surrender to superior force or the impossibility of mustering a political majority to respond more aggressively or even override the court’s decision – an example of judicial monologue. Scholars could use their political judgement to classify legislative failure to respond as dialogic or monologic, but judgment calls of this kind are not very compatible with serious quantitative scholarship. Hogg and Bushell’s example of ‘reading up’ statutes that violate equality principles offers another occasion for wondering how to interpret legislative inaction.74 They say that reading up is a policy choice but acknowledge that there are often strong political pressures to acquiesce in a judicial decision leveling up unconstitutional inequality. It would not be unfair to describe such acquiescence as a legislative surrender to superior force. Another question is posed by prospective overrides. Here the legislature anticipates a judicial decision invalidating a legislative proposal and insulates it from that result by including an override provision. Only one party, the legislature, speaks and yet the other party, the judiciary, appears to have some role in shaping the statutory and constitutional outcome. Should prospective overrides be counted as dialogic? The question is complicated by the fact that the legislature might be wrong in its prediction of what the courts might do. In several Canadian cases, a provincial legislature enacted a statute, a lower court held it unconstitutional, and while the case was on appeal the legislature added a quasi-prospective override provision – and in the end the appellate court reversed the lower court on the Ford v. Quebec, [1988] 2 S.C.R. 712. Dixon (2017), at 2208–09. 74 See supra note 61. 72 73 22 merits.75 Dialogic or not? Perhaps the answer turns on whether the appellate court’s decision on the merits appears to be strongly defensible (or the lower court’s decision appears highly questionable).76 If so, there is no dialogue but simply the application of the governing law on the merits, but if not – that is, if one might fairly think that the appellate court’s decision was influenced by the override provision – perhaps a dialogue. Responding to the concerns about judicial supremacy that the theory of dialogue seeks to diffuse, some scholars have been tempted to treat as dialogic constitutional amendments and nominations of judges who, the appointing authorities believe, disagree with specific constitutional decisions.77 It is clear that constitutional amendments can be dialogic at least in the sense of reflecting substantive disagreement over constitutional meaning. For example, the US Supreme Court at one point believed that the US Constitution properly interpreted allowed one state’s citizens to sue another state in the national courts; 78 the Constitution was amended to provide that ‘the Judicial power of the United States shall not be construed to extend to’ such suits. 79 This is a textually explicit repudiation of the Court’s prior interpretation. Likewise, the first amendment to the Indian Constitution rejected the Indian Supreme Court’s interpretation of free speech in the context of laws barring seditious advocacy.80 To treat constitutional amendments as dialogic, however, might stretch the metaphor past its breaking point. A constitutional amendment that overrides a court decision is in some sense part of a dialogue with the court, but the conversation ends with the assertion of superior force rather than with deliberative agreement. For this to qualify as dialogue, one must fall back on a very thin definition of dialogue – thin enough to encompass efforts to silence one’s interlocutor. The result is a slippery slope: it becomes difficult to see which countries, if any, might be said to lack inter-branch dialogue, or what, if anything, distinguishes “dialogic” constitutional politics from an ordinary battle of wills conducted with ordinary regard for legal niceties. 17.2.4 The Effects of Dialogue on Courts The effects of interbranch dialogue on judicial behaviour are unclear and open to conflicting predictions. One hypothesis is that courts will be emboldened to act aggressively in a world of constitutional dialogues. They can offer what they believe to be the best interpretations of the constitution without having to worry about the possibility of legislative retaliation or about loss of popular legitimacy because the next step in the dialogue provides the opportunity for reasoned disagreement rather than retaliation, and for reinvigorating parliamentary and constitutional supremacy (and so, indirectly, the court’s legitimacy as See, e.g., City of Toronto v. Attorney General of Ontario, 2021 SCC 34. As was the lower court decision in the City of Toronto case cited above in note 75. 77 See Friedman (2009); Perreti (1999). 78 Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). 79 US Constitution, Amend. 11 (1795). 80 Constitution of India, Amend. 1 (1951). 75 76 23 well). It is equally plausible, however, that dialogue could induce precisely the opposite behaviour. Some judges might reasonably believe that legislative overrides are a form of undesirable criticism and might shape their opinions in ways that will reduce the possibility of overrides. On this view, judges and legislators alike attempt to anticipate what the other side will do and act strategically to avoid potential defeat. Just as legislators enact prospective overrides to forestall rejection by the courts, judges temper their positions to forestall rejection by the legislature. It is probably impossible to determine empirically when the ‘emboldening’ or ‘tempering’ hypotheses of dialogue’s effects on judges are accurate, or whether one or the other is more accurate more of the time. Both hypotheses posit strategic motivations for decisions that are presented as honest representations of the judges’ best efforts to interpret the constitution honestly. Disentangling strategic and sincere behaviour is notoriously difficult, though sometimes one can find relevant evidence in intracurial communications if they are available. 17.2.5 The Effects of Dialogue on Legislatures The prospect of judicial review can alter the language of justification employed by lawmakers. Such judicialization of discourse – wherein legislators speak in the terms articulated and emphasized by courts – might be considered evidence of dialogue. Thus, for example, Hogg and Bushell point to the fact that legislators engage in ‘Charter-Speak,’ 81 meaning that they advert to Charter provisions in the course of defending or attacking legislative proposals. Similarly, political scientists have shown that ministries charged with vetting legislative proposals cast their analyses in court-influenced terms.82 They cast their advice in terms of ‘litigation risk,’ from ‘none’ to ‘likely to be held unconstitutional.’ Treating ‘constitution-speak’ as evidence of dialogue is problematic, though. The invocation of constitutional arguments by legislators may be a façade cloaking pure policy positions: those who think a proposal wise will argue that it is constitutionally permissible, while those who think it unwise will argue that it would be unconstitutional if enacted. 83 ‘Constitution-speak’ may amount in reality to the expression of ‘mere’ political disagreement with judicial interpretations in constitutionally sanctioned form, as opposed to deliberate consideration of whether those interpretations are good ones. There is also a problem of expertise: many legislators will be unfamiliar with how courts use doctrinal language and will mouth judicial tests without understanding them. As Manfredi and Kelly put it, such legislators are more like ventriloquists’ dummies than active participants in a conversation. 84 Yet another problem is that ‘constitution-speak’ is often Hogg & Bushell (1997), at 101. Hiebert & Kelly (2015); Tushnet (2003b). 83 Schauer’s comment is cited in Tushnet (2003b), at 461 n. 53. 84 Manfredi & Kelly (1999), at 521. 81 82 24 precisely not dialogic but rather an act of preemptive compliance. In real dialogues, the possibility of disagreement is always in the air. 17.2.6 The Political Viability and Sustainability of Dialogue An often overlooked but critical question about the constitutional politics of judiciallegislative dialogues is whether they are politically sustainable over the medium to long run in the face of both contemporary human-rights culture and the realities of democratic politics. Sustained inter-branch dialogue is not necessarily a stable equilibrium. There are reasons to suspect that it may be prone to tipping into either de facto legislative supremacy, on the one hand, or de facto judicial supremacy, on the other. The challenge from legislative supremacy focuses on an argument made initially by Robert Dahl in 1957 with respect to the US Supreme Court and repeated regularly by scholars with respect to other constitutional courts.85 According to Dahl, the US Supreme Court has never found itself in disagreement with a governing coalition for a sustained period and is unlikely to ever do so. Many qualifications are built into that formulation, the most important of which is that there must be a governing coalition in place for a sustained period. Taking that and other qualifications into account, though, political scientists have mostly found support for Dahl’s argument.86 Whether it is because governing coalitions are invariably able in the long run to reshape the courts, or because judges choose of their own accord to bend before they break, the implication is that dialogues always terminate with the legislature prevailing. The talk that occurs in between plays no real role in shaping the constitutional order. The challenge from judicial supremacy is captured most clearly in the claim that the Canadian notwithstanding clause has been politically discredited and now lies largely dormant as a result.87 It was used early on by the Quebec legislature to insulate essentially all of that province’s constitutionally problematic legislation from potential invalidation.88 That move located section 33 within the then-highly contentious politics of Quebec independence and gave it a somewhat shady cast.89 Not only is section 33 rarely invoked, but its use has also been prone to miscalculation, as in the form of prospective overrides predicated upon erroneous predictions about what the courts would do with legislation already subject to challenge. In 2006, the Liberal candidate for prime minister, trailing in the polls, sought to improve his prospects by pledging to remove the blemish of section 33 Dahl (1957). Indeed, subsequent work has suggested that the Supreme Court may if anything be more responsive to public opinion than Dahl depicts. See Harvey (2013) (finding as an empirical and historical matter that the Court is unlikely to act aggressively when doing so would place it at odds with congressional preferences, defined as majority control of the House of Representatives). 87 See, e.g., Law (2013), at 248–49 (describing section 33 as a ‘zombie provision’); Yakabuski (2023) (noting strong popular support outside Quebec for eliminating section 33). 88 Ford v. Quebec, [1988] 2 S.C.R. 712. 89 More recent invocations of the notwithstanding clause have likewise occurred at the provincial level and done little to restore its legitimacy. Economist (2022); Yakabuski (2023). 85 86 25 from the Canadian constitution.90 The response was that this was an act of desperation (he and his party lost the election anyway) and that section 33, though not all that important, should be preserved as a potential safety valve for future use. This was not a robust defense of the override power. Seen in comparative perspective, the Canadian Supreme Court is today one of the world’s most powerful constitutional courts, which suggests that the court is more monologic than dialogic. The notion of dialogue, then, might be attractive to academics but not to judges, who prefer judicial supremacy, nor to legislators, who prefer legislative supremacy coupled with the ability to foist difficult political problems onto the courts. 91 Indeed, it may not even be attractive to ordinary voters, who tend to like rights and thus might frown upon efforts to overcome judicial protection of rights, even if those efforts are made in their name by elected officials. If so, then dialogue theory may have little enduring political support from anywhere within the overall system of government. The notwithstanding clause’s origins as a solution to a pressing political problem at the Charter’s origin raises the possibility that it – and perhaps the existence of domestic constitutional dialogues generally – arises from contingent and perhaps transient political conditions, the contours of which deserve further attention. 17.3 The Future of Scholarship on Judicial Dialogue The time is ripe, Ryan Black and Lee Epstein have observed, for a research agenda ‘devoted to understanding the exchange of law among nations.’92 This agenda would include tracing ‘the origins of borrowing,’ describing ‘contemporary practices and patterns,’ and identifying when judges are willing or reluctant ‘to import from other societies.’93 Much of the agenda Black and Epstein describe calls for scholars to broaden and deepen their collection of information beyond what is now available. Existing research sketches some lines of inquiry about the political contours of transnational judicial dialogues – specifically, their role in creating and reproducing power hierarchies seen in other areas of international relations. Following up in a sustained way on this initial research, and expanding the focus to include courts in the Global South, would enable us to develop more nuanced and balanced accounts of the practice. The research agenda on domestic constitutional dialogues is similarly promising but in need of firmer empirical as well as conceptual moorings. First, we must reach agreement, or at least make explicit our disagreements, about what counts as domestic dialogue. With an explicit and well-defined concept of dialogue in hand, we can extend the range of nations in which domestic dialogue is examined, with the caution in mind against extending the metaphor too broadly. The ultimate positive goal for the study of domestic constitutional dialogues would then be to determine their political origins and effects. Prominent among Yakabuski (2023). Graber (1993). 92 Black & Epstein (2007), at 792. 93 Ibid, 804. 90 91 26 the latter would be to ascertain whether and under what conditions inter-branch dialogue has ‘emboldening’ or ‘tempering’ effects on judicial review, and to determine the effect, if any, of dialogic arrangements upon the political vulnerability and responsiveness of constitutional courts to the age-old charge of countermajoritarianism. 17.4 References Alter, Karen J. & Laurence R. Helfer. Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice (Oxford University Press, 2017). Black, Ryan & Lee Epstein. (2007). ‘(Re)-Setting the Scholarly Agenda on Transnational Judicial Communication,’ Law & Social Inquiry 32: 791–807. 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