Abstract
When unelected judges strike down legislation that a democratically elected parliament passed, this creates a problem for democratic theorists, which has been extensively discussed under the headline of the ‘counter-majoritarian difficulty’. Political scientists in the United States have sought to resolve the problem by pointing to evidence that judicial review, in practice, is often majoritarian, as courts tend to stay in step with public preferences. But is this the case in Central Eastern European (CEE) countries as well? In his monograph, Benjamin Bricker discusses three ‘visions’ that could reconcile judicial review with democratic theory. He tests these visions empirically in four countries, which have rarely occupied the spotlight of the international literature: the Czech Republic, Latvia, Poland and Slovenia.
Following the introduction, Bricker develops his three ‘visions’ from the (predominantly American) literature. The majoritarian vision resolves the problem by stating that the actions of courts advance majority interests. Bricker subdivides this vision further to discuss the role of the preferences of the median judge in relation to the legislature’s, the salience of public support for the court and career incentives that judges face. This can be contrasted with the second vision: the liberal or rights-protecting vision sees the role of constitutional courts in their ability to enforce constitutional limits onto the government to protect the rights of citizens. Finally, the legalist vision, which is most popular in the legal academy, expects impartial judges to observe the law and behave as neutral umpires that adjudicate conflicts using legal doctrine without advancing own policy-preferences.
In chapter 3, Bricker provides the reader with context to his four case studies. This is particularly important as few readers will be familiar with the history, political structure and legal procedures in the four countries. The obvious question the reader will ask is why Bricker selected the four cases he did. While the four cases have received relatively little attention to date, the unusual selection would have warranted a more detailed discussion.
A challenge for Bricker’s study is to devise tests from the American literature, but adapt them to the CEE context. He does this skilfully, but a few caveats should be added. First, limited data means that Bricker did run several of his tests only on subsets of data. For example, public support for the Constitutional Court data was restricted to Poland between 2003 and 2010. Second, in chapter 7, Bricker uses a left–right measure which only captures some of the cleavages of parties in Poland. This leads him to group very much opposite parties such as ‘Law and Justice’ (PiS) – which, on an economic dimension, is left to the centre, but socially very conservative – and ‘Civic Platform’ (PO) – an economically right, but socially liberal party – together in some of his tests. The one-dimensional left–right axis masks ideological distance between the parties, whereas the GAL-TAN dimension might have been more salient or could have produced different insights if used also. In the same chapter, Bricker uses additional evidence from interviews with staff and judges at the Polish Constitutional Tribunal. While this has informed the design of his hypothesis tests, Bricker has passed on the opportunity to use interviews as a source of inferential leverage.
Overall, Bricker finds ample support for the majoritarian vision of judicial review. The constitutional courts tend to strike down legislation produced by oversized coalitions which are far from the median legislator or voter. They become more activist when equipped with solid public support and tend to strike down legislation produced by ideologically distant governments. Younger judges also respond to career incentives which lead them to change their behaviour in the last years of their tenure. The rights-protecting and legalist visions, on the contrary, find only little support in the study. Citations to precedent were found to be dependent on the ideology of judges, and judges were shown to protect their own rights (i.e. judicial independence) vigilantly.
In conclusion, Bricker’s book looks at old questions in a new and novel context for which very little literature exists. The study has smaller problems, such as a bibliography from which many reference entries are missing, an underdeveloped rationale for case selection and the sole use of a one-dimensional left–right scale. Most of the findings are not very surprising to scholars of judicial politics, yet are much needed for validating existing theories beyond their primal scope. With its original data set, the book makes an important contribution that would be of interest to area studies specialists, comparativists and scholars interested in public law.
