Strong Courts: Judicial Statecraft in Aid of Constitutional Change

ROSALIND DIXON*

Strong courts have the capacity to issue powerful and effective orders that create wide-ranging legal and constitutional change. But what determines institutional strength of this kind? The external legal and political environments for judicial review are both clearly important. But so too is a court’s own approach to the scope and substance of its rulings, the giving of reasons, and the framing of its decisions.

Strong courts, this Article argues, tend to frame decisions in ways that effectively deploy various tools and techniques of judicial “statecraft”—i.e. that adopt a form of: (1) democratically sensitive timing; (2) a judicial voice that speaks directly to the losing party in a case; (3) a narrative that combines global and local elements; (4) reasoning that shows a posture of respect toward the losing party; and (5) engagement with government and civil society actors as partners in the implementation of constitutional requirements. Weaker or less effective courts, in contrast, often overlook the importance of these same considerations of judicial timing, authorship, narrative, comity, and collaboration in framing their reasons and orders.

To make this argument, this Article draws on social science literature, as well as a comparison of two well-known decisions in which the Supreme Courts of South Africa and India attempted reform customary or personal laws in a more gender-equal direction: the Bhe and Shah Bano cases. In Bhe, the South African Constitutional Court effectively enforced relevant constitutional commitments and remained sensitive to considerations of timing, judicial voice, narrative, comity, and collaboration. In Shah Bano, by contrast, the Indian Supreme Court was both less effective in promoting relevant legal change and less sensitive to these same kinds of concerns. These distinct outcomes cannot solely be attributed to differences in background contexts, as there were in fact significant similarities between the two cases and their legal and political contexts. The lesson for constitutional judges, this Article suggests, is that judicial strategy and statecraft matter—and that there are valuable lessons to be learned from the South African Constitutional Court’s approach for courts seeking to create a strong and effective constitutional jurisprudence.

* Professor of Law, University of New South Wales, Faculty of Law. The author thanks David Bilchitz, Sam Bookman, Manuel Cepeda, Maartje De Visser, Evelyn Douek, Coel Kirkby, Stephen Gardbaum, Jeff Gordon, Ivo Gruev, Aileen Kavanagh, Liora Lazarus, Siddarth Narrain, Kate O’Regan, Elizabeth Perham, Aruna Sathanapally, Scott Stephenson, Brian Tiajanco, Mark Tushnet, Mariana Velasco, Sergio Verdugo, Kevin Walton, the participants at the Comparative Constitutional Roundtable December 7–8, 2019, and participants at the Sydney Law School JSI Institute seminar on November 28, 2019, for helpful comments on previous versions of the article. A special note of thanks to Matthew Clifford of the Columbia Journal of Transnational Law and to Melissa Vogt for outstanding editorial and research assistance.