In late March, I attended the most recent roundtable discussion by Nordic Horizons at the Scottish Parliament. As I have mentioned in a previous post, the group is dedicated to raising awareness of Nordic governance as a possible example for Scottish reforms. This week the spotlight was on Iceland’s new draft constitution, which was being debated that evening in the Icelandic parliament. Professor Thorvaldur Gylfason, one of the authors of the draft constitution, presented an outline and took questions after.
As Professor Gylfason made clear, the underlying principle of the entire draft constitution is the importance of popular sovereignty and the accountability of the parliament to the people, in a way that was lacking in the years running up to the financial crisis that nearly destroyed Iceland’s economy and led to criminal trials for its most senior leadership. For over sixty years, Iceland has been ruled under a provisional constitution passed soon after its independence during World War Two. In the opinion of Professor Gylfason and the other reformers, it was the hastiness of the constitution’s passage in 1944 that is responsible for the loopholes that allowed such abuses of power. The 2012 draft constitution seeks to correct this.
The event was held during the same week as the US Supreme Court hearings on the Affordable Care Act (ObamaCare) in the United States, amidst dire predictions that the court would overstep its limits and strike down a law with which it disagreed on political as opposed to constitutional grounds. When it was my turn to ask a question, I asked Professor Gylfason to speak to the question of judicial independence in a parliamentary democracy. In particular, I wanted to know, how could judicial independence be preserved while also subordinating the entire government to popular sovereignty, and how could the judiciary be monitored for corruption and over-reach while still maintaining its independence?
His response sounded familiar to American ears. Since Iceland became independent, Gylfason explained, it has been ruled by two parties. These parties have populated the judiciary with their political appointees, damaging the credibility of the current Icelandic judiciary. While he did not go into detail on the draft constitution’s provisions for addressing this problem, he did note that all twenty-five members of the drafting committee were aware of it, and that they had taken steps to restrain the nominating process in the future so as, hopefully, to depoliticize it.
When asking my question, I framed it as motivated by events in the US, but I also noted that Scotland’s judiciary has historically enjoyed an independence similar to that in the US. While the Crowns of England and Scotland were unified in 1603, and the Parliaments were unified in 1707, the Scottish judiciary was never merged with the English courts and retains an independent jurisdiction to this day. In the centuries between the Union of 1707 and the devolution of restricted powers to a new, inferior Scottish parliament in 1999, the judiciary emerged as the sole independent institution in Scottish political life. It used its authority and prestige assertively, with senior judges such as Lord Kames, a member of the Court of Session in the 1700s, arguing that in the absence of a parliament the judiciary had the right and responsibility to craft judge-made law.
Kames’ ideas were widely influential at the time of the American Founding, and echoes of his ideas may be heard in the early jurisprudence of Supreme Court justices such as James Wilson, a Scottish lawyer who emigrated to America on the eve of the Revolution, and John Marshall, the Chief Justice who began the tradition of the Supreme Court’s right of judicial review on constitutional matters. It is this right that the Court has invoked over the past twelve years in order to decide the outcome of a presidential election (Bush v. Gore), to expand the definition of free speech to include corporations (Citizens United v. Federal Election Commission), and potentially to overturn a democratically-enacted law and deny Congress the authority to exercise one of its enumerated responsibilities, regulating the interstate economy (the Obamacare cases).
The difference, of course, is that while Kames and the other Scottish jurists were operating in an environment in which Parliament was a remote institution not actively concerned in Scottish affairs, meaning that the judiciary was often thrown back on its own resources, no similar situation exists in America today. Congress is dysfunctional but actively present – the Supreme Court is located across the street from the Capitol – but this has not prevented the Court from asserting authority similar to that of a third (and supreme) house of the legislature. Justice Antonin Scalia and Chief Justice John Roberts even went so far as to muse on legislative strategy in open court during the oral arguments. It could not be clearer that the Supreme Court, supreme in its independence as well as its jurisdiction, is an example of what happens when the ideal of judicial independence is taken to an extreme, with judges with life tenure expanding their own authority without check or balance, unaccountable not just to the people’s representatives but the people themselves.
The Icelandic draft constitution may be the opposite case (I say may because I have yet to find an English translation to confirm details). If, in the effort to combat corruption, the Icelandic judiciary is stripped of its independence, Iceland may confront the problem of a malleable judiciary unable to dispense justice because of its own insecurity. Should that happen, the Icelandic judiciary may not resemble the US federal judiciary so much as that of American states such as Maryland and Texas, in which the judiciary is elected and officials openly court public opinion when exercising their judicial duties.
Should Scotland become independent, it too will have to decide how much independence to allow its judiciary, lest it wind up in the position of the United States and Iceland in which judges advance narrow, partisan interests from the protection of their unaccountable courts. Scotland will not be able to look for guidance to England, a country ruled under the principle of parliamentary sovereignty and which therefore has no independent judiciary, and which did not even have a Supreme Court until the last decade. Will Scotland look for advice to its Nordic cousins? Will it look to the Continental courts of France and Germany? Will it adopt an American model of judicial impunity? All three countries – America, Iceland, and Scotland – will need to address the role of their judiciaries in the coming years.