Proceduralism and the epistemic dilemma of Supreme Courts

Abstract

Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in virtue of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists.

Keywords:

• Proceduralism
• epistemic peerhood
• epistocracy, Supreme Courts
• judicial review

Acknowledgements

This paper was originally discussed during the Workshop “Deliberation after consensus: Democracy, epistemic quality and public discourse”, held in Paris in November 2014. We thank the discussants Andrew Knops, Henrik Friberg-Fernros and the audience for their valuable comments. Revised versions were presented in May 2015 at a Workshop on Proceduralism held at the Hoover Chaire d’èthique économique et sociale – Université Catholique de Louvain and in September 2016 at the 30th Conference of the Italian Political Science Association in a panel focused on the role of expert in democracy. We thank Pierre-Etienne Vandamme, John Pitseys, Hervé Pourtois, Giulia Bistagnino and Enrico Biale for insightful discussions on several points we discuss here. We are also grateful to two anonymous referees who provided precious suggestions and criticism on a previous version of this manuscript. During the early realization of this joint project, Daniele Santoro was a fellow at the Institut Méditerranéen de Recherches Avancées (IMéRA) - Marseille, and Federica Liveriero was a visiting scholar at Boston College. We wish to thank these institutions for their support during our research.

Notes

1. For instance, Estlund (2008: 89) claims that democratic procedures have a better-than-chance probability of identifying right policies, and are better at doing so than other forms of governments.

2. Saffon and Urbinati (2013, 20–22) include responsiveness among the main features of their account of procedural democracy along with uncertainty; openness and contestation; participation, emendation, and non-triviality.

3. Jeremy Waldron (1999) has shown that as long as neutrality among citizens is concerned, tossing a coin and the majority-rule solution would both be procedurally valid; therefore, neutrality per se does not grant fairness. The responsiveness criterion provides an answer to the tossing the coin objection, because the majority rule incorporates the commitment of giving equal weight to every member’s claim and preference, a feature that lacks in random selection.

4. On this debate, see Estlund’s (2008) critique of the presumed strictly procedural value of responsiveness, which he refers to as “aggregativity”, and Mackie’s (2011) incisive reply to it.

5. See List and Goodin (2001, 177) for a formulation of this view: “The hallmark of the epistemic approach, in all its forms, is its fundamental premise that there exists some procedure-independent fact of the matter as to what the best or right outcome is. A pure epistemic approach tells us that our social decision rules ought be chosen so as to track that truth”.

6. Estlund (2008, 48) takes the acceptability requirement necessary for political legitimacy, but not sufficient for it. See also Enoch (2009, 38) for an interpretation along these lines.

7. For two other views that look at disagreement as a valuable aspect of contemporary democracies, see Anderson 2006 and Bohman (1996, 2006).

8. The normative value of dissent is central to agonistic versions of democracy (Mouffe 2000; Tully 2004) and dialogical forms of deliberation and negotiation (Bellamy 1999; Bohman 1996).

9. Peter (2013a) argues that, in conditions of pervasive disagreement, the appraisal of evidence is always mediated. On the same point, Sosa (2010) claims that the full-disclosure-assumption of first-order evidence is too strong since evidence is often “too complex” to be fully grasped by a single agent.

10. Competence is also Mill’s chief argument in favour of plural voting. See Mill ([1859] 1977, CW, v. 19, 324, 325).

11. For more standard definitions of epistemic peerhood, see Gutting (1982) and Kelly (2010).

12. Such account of epistemic peerhood is consistent with the description of political equality as a range property (Carter 2011; Rawls 1971). In fact, the normative request of recognising my fellow citizens as epistemic peers appeals to the democratic ideal of granting to everybody the default position of equal respect, rather than assessing the actual cognitive, moral, practical (etc.) abilities of each citizen.

13. See Bohman (2006, 183) referring to Neurath’s boat metaphor.

14. See, for instance, Brown v. Board of Education, 347 U.S. 483 (1954), the US Supreme Court landmark decision during the Civil Rights movement, and more recently, Obergefell v. Hodges, 576 U.S. (2015), where the Court established the right to marry to same-sex couples. Both cases invoked equal protection under the Fourteenth Amendment. In the Europe Union, a homologous function is exercised to some extent, by the European Court of Justice (ECJ). A recent landmark decision by ECJ on the right to privacy over data published on the internet (the so-called “right to be forgotten”), is Google Spain v AEPD and Mario Costeja González (C-131/12 2014), in which the Court held that an internet search engine operator is responsible for the processing that it carries out of personal information which appears on web pages published by third parties.

15. Judicial review includes also the power to overthrow decisions made by lower Courts. As Dworkin puts it, judicial review is “the power of judges not simply to ensure that citizens have the information they need to properly assess their own convictions, preferences, and policies, or to protect citizens from an incumbent government anxious unfairly to perpetuate its mandate, but actually to strike down legislation whose majoritarian pedigree is undeniable”, (2011, 396).

16. Some scholars have challenged the progressive function of the Supreme Courts in the USA history. See for instance Christiano (2008, 281), who shares the same scepticism expressed by Dahl (1956) and Tushnet (1999). For the opposite view, see Bickel (1986), who stresses the constitutional uniqueness of judicial review in US constitutional history. Pacelle (2002) argues that the appropriate role for the Supreme Court in the USA should be based on the doctrine of judicial restraint.

17. Habermas (1996) claims that liberal rights and democracy are co-original and provides a reconstruction of this historical process to show how such interdependence is mediated by the progressive constitutionalisation of these rights.

18. James Madison urged that the instability of government due to factional conflicts is actually linked to the tyranny of the majority, for measures to solve these conflicts are often not decided according to “rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority” (Hamilton, Jay, Madison, (1787) 2009, The Federalist papers, No. 10, 49–54).

19. Pacelle (2002) also claims that US Supreme Court poses a dilemma for democratic theory, but of different nature: the dilemma does not concern the very existence of a court, but its role as historically accorded to by judicial activists, namely those who defend the de facto legislative initiatives of the Court.

20. Ferrajoli (2011) is a strong advocate of this view of constitutionalism. Yet, it should be noted that not every form of Constitutional interpretation is meant to be critical of the status quo, or push progressive measures of reform. US Constitutional history is a paradigmatic case of the difficult struggle for the advancement of rights (see Ackerman 2014). But, whether one favours a progressive or conservative interpretation of Constitutional Courts, the choice should not affect the fundamental argument that constitutional interpretation does not run unrestrained.

21. This is not to say that the dilemma vanishes, but that we can dispel it on an appropriate refinement of the proceduralist view.

22. We want to thank one of the anonymous reviewers to urge us to clarify our position on such matters on this important exchange.

23. This is the bulk of Christiano’s argument about judicial review. However, it must be noticed that Christiano does not undermine the role of democracy as such, but only of the idea that majoritarian procedures are sufficient to legitimise democracy. Democracy is valuable because it contributes to realising public equality, and the core content of public equality is expressed by that set of classical liberal rights. In a nuanced argument against Waldron, he also argues that democratic and liberal rights are indeed equivalent. Thus, the constitution of equality is tantamount a democratic constitution for there cannot be democratic rights without liberal rights. The converse does not hold however: liberal rights trump democratic rights when the former can be protected only at the expense of the rule of the majority. See Christiano 2008, 284, 285.

24. To elaborate more on this point, Brettschneider (2011, 3) argues that, in order “[t]o determine when judicial review is justifiable … we must balance two duties: first, the duty to uphold the substantive values which underlie democratic procedures and, second, the duty that comes from the fact that a law was passed by a democratic procedure”. There is nothing wrong in this argument, and we agree with Brettschneider that the authority of democratic decisions is not completely undercut (pace Christiano) by the fact that they might run afoul with the cluster of values that grants the legitimacy of democracy. However, what lacks in Brettschneider’s argument is exactly an account of the criterion needed for adjudicating among the values in balance. We argue that such criterion is epistemic, because striking the best balance requires both detailed and legal knowledge of the cases in point, as well as the political wisdom of foreseeing and pondering the long-term consequences of upholding one value over the other. Therefore, if we agree that judicial review is justifiable, at least in some cases, it is a matter of which legal facts and consequences of the matter are at stake in the decision. Moreover, striking a balance in the sense suggested by Brettschneider cannot but ultimately rest within the power of the Courts: the reasoning for this claim is that the balance that justifies an act of judicial review must fall within the scope of the Constitution, and only Constitutional Courts can ensure that this constraint is fulfilled. Our argument here is that a precautionary attitude should prevail: since we cannot know if a law in the future may be passed that undermines a substantive democratic value, judicial review is prima facie justified as a safeguard measure in circumstances when procedures fail.

25. An objection against this argument is that Justices should actually have special moral powers in order to fulfil their higher responsibilities, and thus be chosen according to their moral qualities, not only their legal expertise. The view underlying this objection seems to be that higher moral powers enhance persons’ capacity for good judgement, which is essential for being a good judge. Like professional airline pilots must pass physical and psycho-attitudinal tests that are not required for the average car driver, likewise judges must be able to stand to higher standards of moral reasoning and personal integrity. In response to this objection, we should notice two things: first, there is no agreement on the whether there are objective standards of moral excellence, and which they are supposed to be. Disagreement over moral standards is too wide to request tests of moral integrity more stringent than those which apply to ordinary people. Second, the very idea of a special moral power seems to be inspired by perfectionist conceptions of morality as a pursuit of personal excellence. Although this view is attractive in many ways, it is not concerned with the standards of accountability for public officials in the exercise of their duty of office. Admittedly, we want judges to be citizens in good standing, but not more than for any other citizen appointed to a public office. A good judge does not to be a moral Hercules. How good a judge is will rather depend on other essentially epistemic qualities, including the capacity for coherence in reasoning and proper justification. We may add: if there we are to identify a form of integrity that is specific of constitutional judges, that should be constitutional integrity, or better said a practice of ruling inspired by a unifying conception of the Constitution. The idea that a constitutional judge does not need to be a Herculean hero can also help to better clarify the distinction we draw between privileges and prerogatives. An analogy with law enforcement officials can help: the power of cops to use coercion, and even physical violence in some cases, is a prerogative of the authority conferred upon them by a State, not a privilege they have in virtue of any special moral quality. Their power of coercion comes with constitutional restrictions protecting the freedom of individuals, and requires accurate knowledge of the statutes and regulations that specify when force can be used legitimately, along with the know-how acquired by experience and the discernment of what is appropriate to do in critical situations. If the power of law enforcements officials were a privilege associated their personal qualities, even the nicest of cops would exercise her power arbitrarily.

26. Or, at least, some of them. Paradigmatic cases of unconditional rights include those listed in the First Amendment to the US Constitution that is the freedom of religion, speech, and the press from government interference; the right of the people to peaceful assembly, and to appeal the government for redress of grievances. We can also add the right to privacy, and the legal guarantees of habeas corpus, and due process.

27. Saffon and Urbinati nicely phrase this view by saying that constitutionalism prevents democracy from incorrect outcomes, where the notion of correctness does not exclusively depend on the formation of democratic majority, but on the constitutional checks imposed on the validity of its decisions (2013, 8, 9).