Towering Judges: A Comparative Study of Constitutional Judges (Cambridge University Press 2021), edited by Rehan Abeyratne and Iddo Porat

Introduction

This volume introduces and critically examines a new topic in comparative constitutional law: Towering Judges. The volume discusses nineteen judges of apex and constitutional courts from fourteen jurisdictions. Within their particular settings, each of these judges made a significant impact on the trajectory and development of constitutional law. These judges towered over their peers to distinguish themselves in the local context and, in some cases, globally. Some of these judges became well-known public figures, cultural icons, or political leaders.  Some acted in crucial moments in their country’s constitutional history or led their court in a new direction. Others acted in less fraught times and were known primarily within the legal profession. Some were uncontrovertibly respected and valued, while others were complex figures that were subject to debate and criticism. All of them, however, were able to shine individually to an uncommon degree in a profession where individualism is not always looked on favorably.

In this post, we will introduce the concept of towering judges, discuss its various manifestations, and place it in institutional, historical, and political context.

When we began this project more than two years ago, our first challenge was to decide what to call this concept. We considered a few options: the first was Herculean judges, following Dworkin’s hypothetical judge, Hercules. Other candidates were Hero Judges or Super Judges. We finally opted for Towering Judges, which we believe captures the essential characteristics of the phenomenon while allowing enough variance not to exclude too many important examples. At a minimum, a “Towering Judge” is in some respects “taller” than other judges, and therefore individually distinguishable from them. Thus, there is something individualistic about a towering judge that we think is essential to the phenomenon. This means that the judiciary in which such a judge operates is no longer impersonal and uniform. Rather, there is one (at times more than one) judge that draws disproportionate attention and has some disproportionate influence. Towering also connotes not just a little bit taller, but taller in some important or substantial way. But this still leaves, intentionally, a lot open: it does not say or determine in what way the judge is taller than other judges. It also does not say whether taller is necessarily better – is he or she taller in a good or in a problematic way? Our conception also allows different degrees of toweringness. Towering judges could be those that completely reshape the judicial, legal and even societal landscape, but their impact need not be so far-reaching to be viewed as such.

We added one more important qualification – we only included judges that towered mostly, or substantially, in the field of constitutional law. There are two reasons for this. One is practical, as we wish to make a contribution in the field of comparative constitutional law. The other is more substantive. Constitutional law is inherently more political than other areas of law and its stakes for the broader society are usually higher. Judges, particularly those who aim to influence the course of their societies, often do so through constitutional law. Thus, we might expect the phenomenon of towering judges to be particularly well-represented in this area. As a result of this choice, most of the judges in the volume operated in the past half-century. The global rise in the power and influence of constitutional courts is a relatively recent phenomenon in most parts of the world, beginning in earnest only after World War II. Finally, we also aimed to include judges from a variety of legal systems and geographical areas, as well as from both the Global North and Global South so as to provide a wide case selection for comparative analysis and to make the volume as inclusive as possible.

Following these guidelines, we explore in this volume the legacy of the following judges (ordered here alphabetically by jurisdiction and including tenures on their respective apex or constitutional courts): Australia (Chief Justice Sir Anthony Mason, 1972-1995); Chile (Judge Eugenio Valenzuela, 1981-1989/1997-2006); Columbia (Justice Manuel Cepeda, 2001-2009); Hong Kong (Chief Justice Andrew Li, 1997-2010; and Justice Kemal Bokhary, 1997-2012); Hungary (President László Sólyom, 1990-1998); India (Chief Justice PN Bhagwati, 1973-1986); Ireland (Chief Justice Hugh Kennedy, 1924-1936); Israel (President Aharon Barak, 1978-2006); Nepal (Chief Justice Kalyan Shrestha, 2005-2016); Singapore (Chief Justice Chan Sek Keong, 2006-2012); South Africa (Chief Justice Arthur Chaskalson, 1994-2005); United Kingdom (Lady Hale, President of the Supreme Court, 2009-2020); United States (Chief Justice Earl Warren, 1953-69; Chief Justice Charles Evans Hughes, 1930-41; Justice William Brennan, 1956-1990; Justice Hugo Black, 1937-1971; and Justice Owen Roberts, 1930-45); and Vietnam (Chief Justice Truong Hoa Binh, 2007-2016).

Towering Judges in Comparative Context

We believe there are three dimensions along which a judge may be towering – political, institutional and jurisprudential. Political towering judges are those that promote a particular ideological, moral or political agenda or change. This change can be liberal, rights-protecting, or globalist (Barak, Mason, Bhagwati, Warren); tied to particular circumstances, such as helping to oust an autocratic regime (Valenzuela); or to integrate the country into the EU (Sólyom). Institutional towering judges leave a lasting legacy in terms of the legal institutions they create, enhance or protect. This includes judges that help establish and solidify a new court (Chaskalson, Shrestha) and those that help perfect or protect a court from outside pressures (Cepeda). The last category is the most familiar – judges who leave a jurisprudential or intellectual mark on the court, through the force, legal craft or sheer number of their opinions (Kennedy, Chan) or by marshalling their colleagues to move the law significantly in a particular direction (Mason, Warren). Of course, judges could tower in more than one of these categories and most of our selected jurists do precisely that.

As this volume is comparative in scope, it examines towering judges on a spectrum of very different settings.  This can tell us much about the phenomenon as well as the various settings themselves. We discuss three main comparative, contextual factors that affect the phenomenon of towering judges: institutional, historical, and political.

Institutional conditions are likely the most important factor in determining whether towering judges emerge in a particular jurisdiction. For instance, note that there are no judges from continental Western Europe. This is probably due to the absence of suitable institutional conditions to foster or to allow for the emergence of towering judges in Europe. Such conditions would include sufficient time on the court. Practically all constitutional courts in Europe have limited terms for judges, which span between two 3-year terms in Spain, 9 years in Italy, and 12 years in Germany. Having a limited term can substantially constrain judges’ ability to have long-term effects on their respective courts or to build towering intellectual reputations. Common law judges, on the other hand, including in apex courts, typically have unlimited terms, terminated only by a set retirement age (or life tenure in the U.S.). In these jurisdictions, judicial terms of 20 years are not unusual. Other institutional arrangements that can curtail the incidence towering judges are: courts not having signed opinions, not publishing dissenting opinions, and having short, cursory decisions, as in France. A fragmented court that has two senates, such as in Germany, can also hamper the formation of a single towering judge, as can the alternation of Chief Justice each year, as in Colombia.

Another contextual aspect that can shape, and even induce, the emergence of towering judges is the historical moment in which they operate. In some cases, the moment almost necessitates judicial leadership and special judicial capabilities. Such is the case when the judiciary faces external threats or in times of political transition or constitutional foundation.  Chief Justice Chaskalson was handpicked by President Mandela to build a court within a new constitutional system as the first Chief Justice of the South African Constitutional Court. This placed him in a strong position to become a towering judge. Moments of constitutional transition or revolution – as was the case of President Sólyom in Hungary, Justice Cepeda in Colombia, Chief Justice Shrestha in Nepal, and Chief Justice Li and Justice Bokhary in Hong Kong – are conducive to towering judges.

Such conditions, however, are neither sufficient nor necessary to produce these judges. Poland went through a democratic revolution akin to that in Hungary, but there does not seem to be a clear candidate for a towering judge in Poland. In addition, several of the judges surveyed in the volume did not operate in times of exception. This is true for President Barak in Israel, Chief Justice Warren in the US, and Sir Anthony Mason in Australia. While these countries all experienced some societal transitions, their constitutional orders remained relatively stable when these towering judges emerged.

A third contextual aspect concerns the relationship between the judiciary and the political system; in particular, the perceived or actual strength and effectiveness of the political system vis-à-vis the judiciary. Several of the towering judges in the volume operated at times when the political system was weak or ineffective, or at least perceived to be so. In these situations, courts, led by towering judges, filled the void. And, in the process, these courts increased their popular legitimacy. For instance, Aharon Barak led the Israeli Supreme Court to become an activist institution against the backdrop of an ineffective and crippled parliamentary system that characterized Israel in the 1980s. Similarly, Sir Anthony Mason’s promotion of human rights and aboriginal rights occurred, in part, because of his diminished faith in Parliament to protect minority rights. In other countries, governance breakdowns were more severe. For instance, the Colombian Constitutional Court, led by Justice Cepeda expanded the tutela mechanism, which expanded the Court’s extensive administrative and managerial capacities in the face of bureaucratic failures with respect to internally displaced persons (IDPs) and the healthcare system. Similarly, Justice Bhagwati’s entrenchment of public interest litigation (PIL) in India capitalized on severe governance failures and the public’s loss of faith in political leaders

These and other insights on towering judges are further developed in the volume. We hope that it sparks discussion and debate on the role of individual judges in bringing about constitutional change.

Posted by Rehan Abeyratne and Iddo Porat