– Diego Werneck Arguelhes
Suspending legislative deliberations on a bill on the Senate floor, and sending it back for consideration by the House of Representatives. Suspending the appointment, by the President, of a new Chief of Staff. Establishing that the Constitution does not allow secret voting for legislators choosing their Speaker.
These are just a few examples of recent judicial interventions, by Supreme Court judges in Brazil, on the functioning of the political branches of government. While the content of these decisions would be controversial in itself, their most remarkable feature lies elsewhere. These high profile injunctions were the outcome of collective decision-making by the Supreme Court. They were all individual judicial rulings, made by different Supreme Court Justices acting alone.
We typically assume “courts” are collective decision-making institutions, which filter the individual preferences of their component parts through some voting mechanism. Much of the scholarship, ideas, and controversies in constitutional theory and comparative constitutional law focus on this image of courts as collective decision-makers; even when there is internal disagreement, and even when this disagreement is voiced through formal dissents, individual members of a court can only affect the outside world by first achieving some sort of internal majority – of the plenary court, or in one of its senates, chambers, or panels.
As my colleague Leandro Ribeiro and I have argued in a recent piece, however, this assumption does not necessarily hold across countries. And this point is arguably connected to a broader, comparative research agenda in which Brazil and India could engage in dialogue.
Consider the case of Brazil. The Constitution states that a Brazilian court can only perform judicial review by a vote of the absolute majority of all its members (or of the members of one of its composing units, like a chamber or panel). There is no provision in the Brazilian Constitution ascribing any power whatsoever to individual members of the Supreme Court. In practice, however, the combination of rules of procedure, judicial custom, and strategic judicial behavior has led to the development of a handful of mechanisms by which individual Justices can exercise power by themselves – including judicial review.
Whenever a case enters the Brazilian Supreme Court’s docket, one of its Justices is assigned as that case’s rapporteur. When the court meets to decide that case, rapporteurs are expected to summarize the facts and arguments involved in the case, as well as an extensive opinion on the merits. Most importantly, however, rapporteurs have two powers that they can use before the court can even deliberate on the case.
First, they can issue provisional rulings if they consider that urgent measures are needed; these measures can include the suspension of a law or administrative act. Second, and although these injunctions are expected to be confirmed or suspended by the plenary court as soon as possible, rapporteurs decide when the case is ready for collective deliberation and decision. In theory, these “emergency powers” are a controlled delegation of collective power to individual judges – “controlled”, because a future collective decision, which can come as soon as the next court session, can always nullify a wrongfully issued injunction. In practice, however, because rapporteurs have agenda-setting powers, they can choose if and when a collective decision on their own injunction will be made. This gives them an incredible amount of unsupervised, unchecked power.
In practice, then, if not in theory, Brazil accepts the possibility of individual judicial review in its highest court. This has serious implications in terms of constitutional theory. To begin with, individual judicial review is impossible to reconcile with contemporary deliberative justifications of constitutional review. And, while one can argue that an independent judicial veto can decrease the change that legislation will violate rights, no one would seriously suggest that such vetoes should be endlessly multiplied. A veto on democratic decision-making is an acceptable exception in a constitutional democracy, but it is an exception nonetheless. While the Brazilian system includes only one Supreme Court, it gives each of that Court’s eleven judges the possibility of directly interfering with the political process if one of them happens to be assigned as the case rapporteur.
Moreover, individual judicial review undermines the equality of the Justices, of the presidents that appointed them, and of the voters that elected these presidents. Indeed, a single well-positioned rapporteur, appointed by a single president, might easily have more impact on how the law develops over time than a majority of justices appointed by many other presidents over time. Furthermore, this arrangement greatly increases the risk of capture of judicial power by private interests or specific political factions. A judge in a court like the Brazilian Supreme Court – with its high level of independence and unchecked judicial review powers – becomes much more valuable for potential “capturers” than in courts where a single judge counts only as one vote among many others.
As a matter of constitutional theory, then, individual judicial review in this sense seems to be unjustifiable. Still, the phenomenon is on the rise in Brazil. Individual injunctions are becoming more frequent even in constitutional review cases, and high profile individual decisions by Supreme Court Justices are now commonplace in the news.
The main explanation offered by the Court and commentators lies in the explosion of the Supreme Court’s workload since the 90s. In 2006, the Court received more than 100,000 cases, and issued more than 100,000 decisions. While judicial reforms have partially succeeded in lowering these figures, the Court still received dozens of thousands of new cases per year. Historically, a large share of these lawsuits was the result of mass, repeated litigation on a very limited number of actual legal controversies, many of which had already been decided by the Court in previous years.
Unsurprisingly, then, more than 90% of the decisions made by the Surpeme Court since 1988 are individual rulings, by which the Justices summarily dismiss “repeat litigation” and clearly unsound appeals, by simply enforcing the Court’s case law. Individual decision-making powers are therefore expanded and justified due to the Court’s large docket, and as a mechanism to deal with a large number of “unimportant” cases. But the cases of individual review that do matter – or the very important cases that rapporteurs simply choose never to take to the full court – are camouflaged in the thousands of individual decisions that are necessary to manage the Court’s vast docket.
Indian readers of this post must have already noticed many similarities between the two Courts. I am not very familiar with the Indian judicial system, but the “polyvocal” character of the Indian Supreme Court has travelled globally. The idea of a Court that does not speak with a single voice has perhaps become mainstream. Interestingly, in a very similar way to what we see in Brazil, Gautam Bhatia has observed informal dynamics of the court – the low weight of precedent, the ascendancy of more senior judges over their junior colleagues in two- and three- judge panels, and very flexible mechanisms for case selection – creating a scenario in which the authority of the Indian Supreme Court often manifests itself through the preferences of a single judge.
If we want to understand the distribution of power within a given court – what explains the rise of these arrangements over time, how they affect the court’s relationship with politics, and if and how they can be better designed – it might be a good idea to move away from the usual suspects of comparative constitutional scholarship. Although courts like the U.S. Supreme Court, the German Constitutional Court, and the South African Constitutional Court have also seen their dockets increase in size since their creation, they do not appear to have dealt with this phenomenon by delegating decision-making power to their component parts.
The Brazilian and the Indian cases show that such delegation can often happen informally, due to institutional details and customs that are not typically the stuff of constitutional law textbooks, or even of national debates on judicial review. Perhaps a dialogue between scholars of the two countries can help understand the causes and implications of growing individual powers in multi-member courts, as well as to build much needed reform proposals to deal with the perverse effects of such delegation.
The author is Professor of Law at Fundação Getulio Vargas (FGV), Rio de Janeiro, Brazil.