In the Shadow of Judicial Supremacy: Putting the Idea of Judicial Dialogue in Its Place

• Author: Ming‐Sung Kuo
• DOI: http://doi.org/10.1111/raju.12093
• Published date: 01 March 2016
• Date: 01 March 2016

In the Shadow of Judicial Supremacy:

Putting the Idea of Judicial Dialogue in

Its Place

MING-SUNG KUO*

Abstract. I aim to shed theoretical light on the meaning of judicial dialogue by

comparing its practice in different jurisdictions. I f‌irst examine the practice of

dialogic judicial review in Westminster democracies and constitutional

departmentalism in American constitutional theory, showing the tendency toward

judicial supremacy in both cases. Turning f‌inally to continental Europe, I argue that

the practice of constitutional dialogue there is reconciled with its postwar tradition

of judicial supremacy through the deployment of proportionality analysis-framed

judicial admonition. I conclude that constitutional dialogue may take place amid

the judicialization of constitutional politics, albeit in the shadow of judicial

supremacy.

1. Introduction

The idea of dialogic judicial review has gained currency in constitutional scholar-

ship (e.g., Bateup 2006; Waldron 2004). Yet, the meaning of (institutional) dialogue

in theories of judicial (or constitutional) dialogue is not clear. Does it simply refer

to the fact that legislature or other political departments respond to the results of

judicial review? If so, there is little added value inhering in the idea of judicial

dialogue. After all, each decision by judicial review is part of the process of

constitutional politics involving different departments of constitutional power and

thus subject to modif‌ication rendered by statutory changes or constitutional revi-

sion if necessary (Tremblay 2005, 644–45; Tushnet 2009, 209–15). If the idea of

judicial dialogue is not simply an alternative expression for the traditional rela-

tionship between the courts, and legislature as well as the executive power, how do

we make sense of it in terms of its implications to the political vs. judicial

institutional dynamics in constitutional democracy?

This paper aims to shed theoretical light on these questions by comparing the

domestic contexts of constitutional politics in which contemporary constitutional

theory takes the dialogic turn: the emergence of the “new Commonwealth model

of constitutionalism” in traditional Westminster democracies, the recent resurgence

* This paper has drawn upon Kuo 2013.

Ratio Juris. Vol. •• No. •• •• 2015 (••–••)

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sion if necessary (Tremblay 2005, 644–5; Tushnet 2009, 209–15). If the idea of

courts

for

in Its Place

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of constitutional departmentalism in the United States (US), and the practice of

constitutional dialogue in continental Europe. I argue that upon closer inspection,

these comparative constitutional experiences show that the dialogic approach does

not hold up in the face of the prominent role of judicial review in constitutional

democracies. With more and more political and policy issues resolving into

questions of constitutional interpretation through judicial review of executive/

administrative and legislative acts, contemporary constitutionalism has become

associated with the judicialization of politics. As judicial review stands out as the

def‌ining feature of constitutional democracy, judicial supremacy, instead of

departmentalism or judicial dialogue, is characteristic of the practices of constitu-

tional interpretation. A closer look at the post-World War II (WWII) practice of

judicial review in continental Europe, however, suggests that underpinned by

proportionality analysis-framed judicial reasoning, “admonitory judicial decisions,”

which center on the management of inter-branch relations in constitutional

decision-making, seem to indicate another form of judicial dialogue under the

continental tradition of judicial supremacy. Taken as a whole, judicial dialogue and

judicial supremacy are not contradictory; rather, judicial dialogue takes place in the

shadow of judicial supremacy.

2. After Parliamentary Supremacy: Taking the Path of Judicial Dialogue

in Westminster Democracies?

In this section, I f‌irst analyze how bills of rights in Canada, New Zealand, and the

UK bolster the power of judicial review with the provision of new robust inter-

pretive mandates. I then discuss the distinct features of this new type of bolstered

judicial review in Westminster democracies and suggest that the practice of judicial

review in these countries falls short of the expected model of judicial dialogue and

moves in the direction of strong-form judicial review instead.

2.1. Interpretive Mandate and Judicial Empowerment: Bolstering Judicial

Review in the Shadow of Parliamentary Supremacy

The powers conferred on the courts by the bills of rights in Canada, New Zealand,

and the UK can be classif‌ied into two major types. The f‌irst type is the authori-

zation of judicial review by way of interpretive mandate, which is provided in

Section 6 of the Bill of Rights Act of New Zealand (NZBoRA)1and Section 3 of the

Human Rights Act 1998 of the UK (UKHRA).2At f‌irst blush, courts are simply

given an interpretive mandate to construe the statute in question in a way

otherwise allowed in ordinary interpretive methods. Nevertheless, this interpretive

mandate amounts to a form of (quasi)constitutional/judicial review to the extent

that it “gives the courts an effect on policy that is different from the effect they have

1“Wherever an enactment can be given a meaning that is consistent with the rights and

freedoms contained in this Bill of Rights, that meaning shall be preferred to any other

meaning” (NZBoRA, s. 6).

2“So far as it is possible to do so, primary legislation and subordinate legislation must be

read and given effect in a way which is compatible with the Convention rights” (UKHRA, s.

3 (1)).

2Ming-Sung Kuo

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