Magister iuris, Lecturer on Constitutional Law, University of Tartu, Estonia
Judicial Activism in Constitutional Review Decisions of the Supreme Court of Estonia
The choice of the subject of the international conference organised by the Supreme Court of the Republic of Estonia and dedicated to the 15th anniversary of the Constitution of the Republic of Estonia - Political Questions in Constitutional Review: What is the Dividing Line between Interference in Policy-Making and Routine Constitutional Review? - implies that the highest court in Estonia seems to feel somewhat uncomfortable about its task of constitutional review2. The Estonian Supreme Court is by no means exceptional in this regard. All over the world, constitutional courts or their counterparts entrusted with the review of the constitutionality of the decisions adopted by a democratically legitimised legislator must test the bases and the limits of their existence from time to time.
In the course of such fight for the right of existence of constitutional courts (and sometimes against it), a number of scientific works have been born. These can be broadly divided into three categories. Some researchers are dedicated, in line with their understanding of the substance and limits of the modern concept of the separation of powers, to advocating or criticising the interference of the constitutional courts in policy-making. A second school attempts to rank the constitutional courts of the world by the degree of their interference in policy-making. The third, predominantly social science approach, declares the search for the proper boundaries of the power of the courts and the relevant classification utterly useless3. Regardless of the approach taken, the discussion upon the appropriate limits of constitutional adjudication employs the notion of judicial activism, which has become one of the key concepts of modern constitutional law4. This article enters the discussion mentioned above, trying to answer the question about the degree of activism of the constitutional court closest to the author - the Supreme Court of Estonia (hereinafter the Supreme Court).
Since there are practically as many definitions of judicial activism as there are commentators 5 , everyone taking up this task - to say something rational about the degree of judicial activism of a particular constitutional court - must first of all state what he or she means by judicial activism. In the light of the above, this paper aims to serve two goals. The first is to present different approaches to judicial activism and assess them from the perspective of their explanatory power. Secondly, the paper sets out to apply the explanations of judicial activism thus analysed for assessing the degree of judicial activism in the constitutional review decisions of the Supreme Court.
In presenting the different approaches to judicial activism, I have taken as the basis for the discussion the fact that the majority of the definitions of judicial activism are centred around three relatively distinguishable axes. I have referred to the dimensions thus created as methodological, procedural, and substantial activism. Further to that, I will introduce the classical concept of judicial activism standing outside this proposed division in three.
Although defining judicial activism as a mere conflict with other policymakers is not too prevalent in modern scholarly discussion upon constitutional courts, it should be mentioned in the interests of completeness. This is particularly the case because the only international study thus far on the activism of the Estonian Supreme Court, although proceeding from the perspective of political science, makes use of this approach.
Namely, Shannon Ishiyama Smithey and John Ishiyama published in 2002 their article 'Judicial Activism in Post-Communist Politics' 6 in Law and Society Review, in which they examined how the structure of the society influenced the occurrence of judicial activism in post-Communist countries. The percentage of the judicial activism of each country was calculated by dividing the number of cases where the court nullified a law or policy by the total number of nullification opportunities that the court had7. By doing so, the authors proceeded from the most classical definition of judicial activism, according to which a constitutional court is considered activist each time its decisions come into conflict with those of any other political policymakers8. Such an approach, directly rooted in the theory of democracy, considers illegitimate any change in public policy that does not stem from democratically elected legislature9.
According to this approach, whichever constitutional court is unavoidably activist each time it uses its powers to strike down laws assigned to it for review (in Estonia , on the basis of the Constitution itself). Such an approach is contradicted by the contemporary understanding of constitutional democracy with the human rights concept inherent in it as well as of its control mechanism, constitutional review10.
In the Estonian context, it is obligatory to refer also to the nature of the first constitutional decisions of the Supreme Court. For example, in the 1990s, the Supreme Court invalidated the provision that enabled security police officers to use operational and technical special measures without any legal basis if given the written consent of the Justice of the Supreme Court appointed by the Chief Justice of the Supreme Court11. In such cases and similar ones that have now become virtually extinct among the constitutional decisions of the Supreme Court, the Supreme Court rather played the role of a reminder of basic principles of law that were not familiar in the previous legal formation, and it does not appear to be justified to speak about particular judicial activism.
Having said this, one has to move on to approaches that take more account of the modern context when substantiating judicial activism.
One of the most attractive approaches, probably because of its simplicity, to judicial activism analyses activism through the lens of the methods and arguments used in constitutional interpretation, relying on the assumption that it is possible to distinguish between legal and non-legal arguments, and the premise that some arguments and interpretive theories are more suitable than others for avoiding interference in policy-making.
In this vein, the notion of judicial activism has been used in many comments to signify judicial argumentation that does not entirely rely on the text of the Constitution 12 , or which diverges from the intention of the authors of the Constitution, i.e., the will of the 'fathers of the Constitution'13. Reliance on allegedly non-legal arguments, such as value arguments, consequential reasoning, and references to history and traditions 14 , or on ambiguous and abstract principles that require a value-oriented assessment (such as human dignity, equality, and a state based on the rule of law) is also considered activist under this approach15.
As Keenan D. Kmiec has critically noted, "Although judicial activism is often equated with the failure to use 'proper' interpretive tools, divergences of opinion over what constitutes an appropriate interpretive tool make it difficult to distinguish principled but unorthodox methodologies from 'activist' interpretation"16. In addition to this, it is impossible to declare the orthodox interpretation methodologies, such as loyalty to the original intentions of the authors of the Constitution - commonly referred to as "originalism" - apolitical17. Moreover, those who study the US Supreme Court have described the attempt to implement the will of the 'fathers of the Constitution' as one of the manifestations of conservative judicial activism18. By the same token, teleological interpretation, which is often described as a stronghold of judicial activism for not meeting the requirements of objectivity and mechanical applicability 19 , and c ontemporaneous interpretation (i.e., interpretation taking into account the principles and values prevalent in a given society at a given time) are becoming more and more established also in the Romano-Germanic legal tradition, which has traditionally been considered positivist20.
The use of abstract principles of law and value arguments in reasoning as a manifestation of judicial activism has also been severely criticised. Firstly, it is not possible to claim that the 'ambiguity' of the principle of legal certainty outweighs the 'ambiguity' of a provision of the Constitution prescribing a fundamental right. As Christopher Wolfe has elegantly pointed out, "Ambiguity is the raison d'être of modern judicial review"21. Secondly, one could argue the shift from the traditional perception of law as a set of rules to the understanding of law as a set of values and principles22. The importance of constitutional values and principles is particularly evident in Estonian legal doctrine, where the second sentence of § 152 of the Constitution provides thus: "The Supreme Court shall declare invalid any law or other legislation that is in conflict with the provisions and spirit of the Constitution" (emphasis added).
However, there is a category of arguments, in the 'non-legalness' of which there seems to exist a more uniform agreement. This...