Global Constitutionalism 2022: Weighing Judicial Authority

This 2022 e-book, Weighing Judicial Authority, for Yale’s Global Constitutionalism Seminar, is the eleventh e-book in a series that began in 2012. We compiled this volume amidst the ongoing challenges of climate change and COVID as well as the intense debates about democratic practices and restructuring courts, about family arrangements and personal life, and about the responsibilities of constitutional jurists to address these issues. Through a series of chapters previewed below, this volume offers windows into how courts have in recent times responded.

The chapter Climate, Changing will be discussed in a roundtable led by Doug Kysar, Susanne Baer, Laurent Fabius, and Syed Mansoor Ali Shah. The readings, edited by Dan Esty and Doug Kysar with contributions from members of the Seminar, map the many times that judges have been asked to hold governments accountable for their action or inaction related to climate change. In some jurisdictions, courts have opened their doors to claims filed against government officials obliged to implement climate policy and against private actors alleged to be responsible for some of the harms. From these rulings, a trans-jurisdictional law about the rights of and remedies for climate change is emerging. Yet, as also discussed, some courts have concluded that the litigants lack standing to bring cases, that no duties exist, or that the judiciary is not an appropriate and effective venue for addressing these harms.

Just as climate change is a site of disagreement about the judicial role, so too is the ongoing struggle over how to address the pandemic. In the chapter Covid-19: Waves, Mandates and Public Health, edited by Abbe R. Gluck, Daphne Barak-Erez, and Marta Cartabia, the Seminar returns for a third year to consider the legal implications of COVID-19. The materials explore this emergency’s impact on the structure of government and as courts respond to litigants contesting executive action or inaction. We draw examples from conflicts over vaccine mandates, religious liberty, and the constitutional rights to care of people in detention. During the last year, with the ebb and flow of COVID-19 waves and a growing body of scientific evidence, courts have sometimes analysed issues under the rubric of constitutional rights and at other times by turning to administrative law. This chapter continues to probe questions with which we began three years ago. What are the powers of governments to try to protect health risks? Who balances the harms of health and the harms of rules limiting activities such as work, schooling, and prayer? Has COVID-19 affected conceptions of how judges should respond to emergency actions taken under significant uncertainty?

The next topic, Constituting and Reconfiguring Families, explores how constitutional law intersects with the structure and formation of families, the regulation of marriage, and decisions to become parents. Litigants have long argued to courts that equality, autonomy, privacy, and liberty require respect for their decisions about these matters. The materials, edited by Douglas NeJaime, Goodwin Liu, and Francesco Viganò, provide vivid examples of how various technologies of reproduction and shifting social norms offer new opportunities to bring families into being and raise new questions about law’s regulation of families. In recent years, judges have addressed the status, authority, rights, and duties of more than two people to be parents of a child, as well as the rights and interests of children in various family relationships. Also under consideration is the impact of decisions in one jurisdiction on the law of another, as some countries recognize more diverse family configurations than do others. In several cases, judges debate whether to resolve the question or defer to the legislature.

Another facet of family life is the decision about whether, if pregnant, to have a child. In Abortion: Rights in Motion, Linda Greenhouse, Reva Siegel, and Daniela Salazar Marín examine how this question has come to the fore as an issue for constitutional law around the world. The chapter (to be accompanied by an addendum relating the decision in the U.S. to overturn a fifty-year-old precedent providing constitutional protection for abortion) selects a few illustrations of approaches of jurisdictions as many—pressed by social movements—have revisited their laws on abortion. Protests have called for decriminalization of abortion in Latin America, a predominantly Catholic region. Although abortion in the region continues to be subject to criminal prohibition, reconsideration is underway in several jurisdictions responding to legislators and litigants asserting constitutional and human rights. In contrast, some countries in Eastern Europe have imposed new restrictions on abortion; those limits have in turn prompted mass protests arguing that self-determination in matters of personal life parallels self-determination in political life. By reading the 2022 U.S. abortion decision along with other rulings excerpted in this chapter, the question of access to abortion within and across jurisdictions’ borders becomes vivid.

A theme across all these chapters is the role of courts. The final chapter, The Independence and Integrity of Courts, edited by Kim Lane Scheppele, Carlos Rosenkrantz, and Philip Sales, makes plain that these longstanding issues have new saliency, as arguments arise over whether judges have too much or too little “independence.” As the examples illustrate, judiciaries are creatures of constitutions and statutes that often specify methods of selection, obligations of judges, courts’ authority and procedures, and methods for removal. Judiciaries are hence dependent on the governments that deploy them even as judges sit in judgment of public officials. The materials document the complexity of identifying licit forms of oversight and accountability and necessary levels of insulation. Considering recent developments, one focus is on removal of judges, either individually or en masse, sometimes in the name of rejuvenation and other times as discipline for perceived misconduct. Also considered are mechanisms for appointment grounded in accountability and shadowed by concerns about the undue influences of the appointing powers, as well as issues of reappointment and the length of tenure in office.

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