Judicial Review and Strategic Behaviour: An Empirical Case Law Analysis of the Belgian Constitutional Court

As its title reveals, this is a book on judicial review. However, it is unlike any other book on judicial review, for two reasons. First, it has a very limited scope: it only considers the Belgian Constitutional Court (my long-term relationship with this court is most probably the reason I was solicited to write this review). But before you stop reading at this point, here is the more important reason. The book has a most original approach to judicial review: it is not primarily based on traditional normative scholarship but on an empirical study of the judgments rendered by the mentioned court. This approach is of universal interest.

The empirical approach, as a research method, implies an evaluation of evidence on the factors determining the outcome of judicial decisions. For this purpose, the author built an extensive database on the case law of the Belgian Constitutional Court, including all 3145 cases since its inception in 1985 until 2015. A total of fifty-five variables were coded, categorized in four sets of variables. The first set collects information on the key features of the procedure, such as the type of legislation under review or the nature (annulment/preliminary) of the procedure. The second set identifies who participated in the review procedure. A third set of variables registers the content of each ruling, looking into the reference norms that were invoked and the cited authorities. The final set of variables collects information on the case outcome (p. 6). In addition, the author could rely on a media database, provided by the Belgian Constitutional Court for academic purpose. This database contains information on the extent of news media attention for cases that were brought before the Court.

Although the research is primarily based on this empirical analysis, it results in more than stats and figures. The value of the book is that it integrates the empirical findings in a traditional normative approach to judicial review, helping to reveal the dynamics of the decision-making within a constitutional court. How does this work?

The first part of the book explores the role of constitutional courts in democratic systems. It develops the normative framework, based on insights of theories of deliberation. In the second part the author shows that the Belgian Constitutional Court has gradually developed into “a fully-fledged human rights court with robust deliberative features” (p. 5). The author identifies five key features enabling deliberation (deliberation being understood as an ongoing dialogue between various institutions, centered on producing high-quality outcomes): (1) the provision of an inclusive forum, (2) the Court’s internal deliberations/debates, (3) resulting in a transparent written decision, (4) justified by rational arguments, and (5) enhancing constitutional dialogue (pp. 34, 328).

Against this normative background, the author intends to unveil the strategic behavior of the Constitutional Court by testing different hypotheses using the empirical evidence. The main hypothesis is “that, in salient cases, the Court acts strategically, adapting certain aspects of its ruling, in order to maximise its effectiveness as a policy-maker” (p. 2). Step by step, in the third and most comprehensive part of the book, the case law of the Court is analyzed from both a strategic and a deliberative perspective. Ultimately, the Belgian Constitutional Court emerges as a court that balances principled decision-making and a degree of pragmatism in its jurisprudence (p. 123). To some degree, of course, this is true for many constitutional courts.

In the first chapter of this third part (chapter 4), the concept of “case salience” is defined by a set of variables: media coverage, the size of (and diversity within) the group of litigants, and panel size (regular or plenary session). Those variables allow the author to identify fifty-seven “highly salient” cases in the case law of the Belgian Constitutional Court (pp. 161–165).

The following three chapters each center on one specific aspect of the Court’s case law. In particular, the book scrutinizes the case outcomes (chapter 5), the citation practices (chapter 6), and the application of the proportionality analysis in fundamental rights cases (chapter 7). Each of these chapters follows the same structure. First, the chapter discusses how the Court should shape its case law in light of the deliberative expectations that weigh on it. Special attention is paid to the reason-giving requirement and the engagement in dialogue. Next, the chapter executes a descriptive analysis to reveal certain patterns in the Court’s case law. When there is discernible evolution over time, graphs illustrate it. In addition, the chapter explores correlations between each judicial practice and other case characteristics. Next, a statistical analysis aims to lay bare which factors may influence the Court’s behavior. A number of hypotheses are tested regarding strategic actions in salient cases. After examining the presumed strategic model in a broad range of cases, the results are illustrated with isolated case examples (pp. 7, 126).

Hypothesis 2a, for instance, reads as follows: “When more media articles are published on the case prior to the judicial decision, it is more likely that the case will lead to a modulated outcome” (p. 207). Modulated outcomes indicate how the legislation should be interpreted or altered in order for it to be applied in a constitutional way (substantive modulation) or temper the retroactive effect of an invalidation (temporal modulation). Hypothesis 2b: “When the Court deliberates in plenary session, it is more likely that the case leads to a modulated outcome” (p. 208). The empirical test of these hypotheses leads to the conclusion that when a case is perceived as salient by the judges (plenary session), they are indeed inclined to proclaim an attenuated ruling rather than to bluntly disapprove of the challenged legislation. However, the author notes that extensive media attention is an even stronger incentive for the Court to use declarations of constitutionality and temporal modulations. Thus, the Court acts prudently in cases that are under increased public scrutiny, independently of whether there has been a request for a plenary session (p. 220). The so-called marijuana-case (case no. 158/2004) is mentioned as an example (p. 221). These findings are summarized as follows: “Proclaiming a simple invalidation in politically controversial cases may be met with resistance, which can eventually threaten the Court’s institutional standing or result in loss of public support. The findings imply that the Court, when anticipating this risk, strategically resorts to an outcome that is phrased in less outspoken terms” (p. 330).

Throughout the book, the judicial practice of the Constitutional Court is, quite naturally, considered a deliberative process. However, the individual preferences of (certain) judges might be underestimated in that evaluation. This can be illustrated by a few examples, from my own experience, with regard to the citation practices. Until the beginning of the twentieth century, for instance, one of the judges firmly opposed any references to case law, because each judgment, in his opinion, should be based on reasonable arguments rather than authority. This individual influence may help to explain the increase of references to case law after his retirement. Yet, the reason for inserting references to case law is to develop a certain consistency in the case law rather than to legitimate the judgment. Another judge (or his law clerk) tends to read the legislator’s intentions in the text of the law itself, without mentioning the parliamentary preparatory documents. This preference puts the author’s statement that the Court “refers almost automatically to these documents” into perspective (p. 293). In other words, the influence of individual judges on the case outcome could be an interesting field for additional empirical research.

The most interesting chapter, in my opinion, is the last one, concerning the proportionality analysis. This four-stage analysis, also described as the “justification test,” implies an evaluation (i) whether the policy objective is legitimate (legitimacy test), (ii) whether there is a causal relation between the challenged provision and this objective (rationality test), (iii) whether the least restrictive means were chosen to further that objective (necessity test), and (iv) whether the relation between the objective and the provision is proportional (proportionality test) (pp. 45, 283). Although this four-stage test, as the author points out, has become the most prominent method for adjudicating in fundamental rights cases around the world, the Constitutional Court quite systematically reduces the four stages of the test to three. The necessity test (third stage) is only very rarely applied, as far as I know, because it is not the Court’s task to reject a measure that meets the proportionality test (fourth stage), even if a less intrusive measure exists. The choice between two appropriate measures, both being proportionate, is a policy decision. Hence, not applying the proportionality to its full extent is not a matter of strategic vagueness, as the author suggests (p. 285), but a genuine attitude of judicial restraint. Yet, the results show that the Court considers it a better strategy to be precise rather than vague in order to stimulate compliance with the ruling (p. 331).

The overall conclusion drawn from the three main empirical analyses is that strategic considerations in salient cases usually result in more substantive and temporal modulations, more citations to external authorities, and more precise references to the different stages of the proportionality analysis. Although this does not mean that all rulings enjoy transparent, clear, and rational underpinnings, according to the author, such behavior does not conflict with the deliberative ideal (p. 333).

“If you torture data long enough, it will confess to anything,” economist Ronald Coase said in his famous quote.¹ It would be inappropriate—of course—to contradict a Nobel Laureate. But his saying was definitely not the author’s attitude in her doctoral research. The results of that research in this book shed more light on judicial review and offer new insights—to end with a quote of the author herself—“into how judges adapt their rulings in order to stimulate compliance” (p. 3). This book is highly recommended reading.

Footnotes

1

“Ronald Coase,” cited in Wikiquote. See also R. H. Coase, Essays on Economics and Economists (1994).