Court Intrigue

In a nation of laws, courts are essential to a free and fair society, but there’s more than one way to build a judiciary. Northwestern legal scholar Erin Delaney on comparative judicial design and power

By Matt GolosinskiNovember 19, 2018

We live in the Judicial Era, says Erin Delaney, Northwestern Pritzker School of Law professor and associate dean. Courts and judicial review have grown more important in constitutional government over the past three decades, a trend she associates with an increased global focus on constitutionalism and human rights.

But is the law inscribed in stone and settled? Or is it written in something softer, more malleable — even fragile? 

Alexander Hamilton famously called America’s judiciary the “least dangerous” branch of government. Established by Article III of the Constitution, the federal court system exists in relationship with state courts and decides the constitutionality of laws passed by Congress, but lacks “the power of the executive branch and political passions of the legislature.”

Anyone who has stood before a judge might be forgiven for thinking of the courtroom in starker terms, with the balance of power completely favoring the black-robed arbiters of law, especially at the US Supreme Court, the apex court in our federal constitutional system. SCOTUS has been the subject of Delaney’s analysis in publications such as “Becoming Supreme: The Federal Foundation of Judicial Supremacy,” which posits how the Supreme Court, by ruling in disputes involving states relative to the national government, assumed both “vertical” and “horizontal” authority within the multi-level federal system.

Whether at the federal or state levels, though, Hamilton’s assessment rings true: the courts are subject to social and political pressures and must maintain their authority carefully, says Delaney, an award-winning scholar who researches court function and design in a comparative global context, including how higher courts interact with lower ones to achieve (or not) judicial legitimacy. Drawing on both her political science and legal training, she has studied judiciaries in the United Kingdom, Canada, the European Union, Australia, South Africa, and the United States. Her current work includes a large research project on judicial design in Africa as well as a new edited volume, Comparative Judicial Review, that offers an interdisciplinary, comprehensive, and global perspective on its subject. A forthcoming book chapter will examine Canadian judicial federalism and how the special status of Quebec influences court structure there.

“People think ‘Well, you just apply the law,’ but every time you bring a claim you’re engaging with the construction of the law,” she says. That construction integrates broad political and social pressures. “It’s all about effective power: When the court speaks, do people listen?”

While case precedent buttresses subsequent legal interpretations, Delaney says, those interpretations involve vigorous, ongoing conversations among groups of people — lawyers, certainly, but also elected officials and members of the public — all intent on balancing competing notions of right and wrong in a socially fluid environment.

This circumstance may displease those who seek absolute finality on judicial matters, but Delaney says such tensions and dialogue are to be expected in an institution asked to walk the fine line between making and applying law. At the heart of this challenge, she says, is what’s known as the counter-majoritarian difficulty, a dilemma involving the challenges of judicial review in a democratic system.

The Pull of Powers

“Constitutionalism presents what I call in class the counter-majoritarian aspiration,” says Delaney, who joined Northwestern in 2012 and has earned distinction as an outstanding professor and mentor, teaching and researching constitutional and immigration law. “We have this idea that the Constitution, because it has rights embedded in it, will protect against negative, problematic majoritarian impulses. Independence allows a court to push back against the government to make sure that rights or constitutional provisions are being upheld. But the challenge that the court has is that it is unelected, and so if in its rulings it gets too far ahead of society, then people and the elected branches of government are going to try to rein it in.”

This potential backlash against unelected judges thwarting the will of the popular branches presents a threat to judicial independence, a quality Delaney calls a “hallmark of democracy and the rule of law.”  It is a danger faced by all courts due to their very institutional nature —having, again in the words of Hamilton, “neither force nor will, but merely judgment.”

Even in the United States, the Supreme Court has seen challenges to its independence. The 1930s were a “terribly dramatic decade” for the Supreme Court, Delaney says.  In the face of decisions striking down key elements of his New Deal, President Franklin Roosevelt ran “against” the Court in his 1936 Presidential campaign. After a sweeping victory, he proposed legislation that would increase the size of the Court to allow him to appoint new justices that would rule favorably on new laws. The bill, considered an attempt to “stack the court,” was ultimately not enacted. But court-packing has become a model for majoritarian control over the judiciary. Recent backlashes against courts in Hungary and Poland, for example, have drawn on these court-packing methods.

Judgement Delayed: Stalling for Success

“The Court has always been in the crosshairs,” as it maneuvers between counter-majoritarian aspiration and difficulty to try to exert effective judicial power and legitimacy, says Delaney. But she says the Supreme Court has a variety of tools that justices can use to navigate some of these tensions to maintain credibility. One of those tools, as she has written in “Analyzing Avoidance: Judicial Strategy in Comparative Perspective,” is simply not to decide on contentious issues. Thousands of cases are presented to the Supreme Court each year, but only about 75 are typically heard. (The nation’s 94 district and 13 circuit courts don’t have as many tools as the Supreme Court to avoid hearing cases, Delaney notes.)

“One explanation for this practice is that a court can postpone reaching decisions that might threaten its institutional viability,” she says. “Avoidance creates delay, and that can permit productive dialogue with and among the political branches.” These conversations can lead to a democratic resolution outside the court system, while also helping bolster the court’s institutional legitimacy and security by allowing it to step back from deeply polarizing issues.

“As lawyers, we push the law in various ways — by making arguments, by not making arguments, by choosing to bring cases or not,” says Delaney, who recalls first becoming interested in comparative constitutional studies around the eighth grade, when she entered an essay contest, writing about political philosopher Montesquieu and the Preamble to the Constitution. “But I also want my students to realize that acting and being engaged politically, sharing your viewpoint and trying to convince people through the political process, is also important. We can’t just be a government of lawyers.”

For Northwestern student Mehwish Shaukat (Law ’18), Delaney’s courses have proven transformative. She says Delaney helped her understand the many value judgements inherent in law and how these are prioritized. “As a Muslim hijabi with an intersectional identity, these value judgements were often harrowing to internalize,” says Shaukat. “Professor Delaney refused to let me slip into hopelessness and, instead, taught me how to harness my passion to interrogate the law and demand more from the caretakers of our Constitution.”

Similarly, Bianca Serrato (Law ’18) calls Delaney an engaged mentor and teacher who brings the law to life in the classroom: “We discussed cases that were before the Supreme Court in real-time and she challenged us to understand such decisions within the larger, historical context of immigration law in the US, allowing us to see how what we were learning in class actually played out in the challenging immigration system.”

Questions and Comparative Frameworks

An expert on how governments create and maintain judicial power, Delaney earned her doctorate in International Studies from the University of Cambridge, where her dissertation “Promoting Federation: The Role of a Constitutional Courts in Federalist States” won the prestigious Walter Bagehot Prize. She went on to earn her law degree at New York University School of Law, before clerking for Supreme Court Justice David H. Souter and US Court of Appeals Judge Guido Calabresi. As a clerk, Delaney says she learned the importance of precision and concision with language as well as the value of empathy to understand the perspectives of all involved in a case, a skill that she says helps to construct robust counterarguments.

Delaney sees great value in comparative legal scholarship. By examining different judicial structures, she says one can sharpen the ability to question, evaluate, and reevaluate ideas and assumptions, a practice she believes is fundamental to the legal profession.

“In constitutional design, you’re rarely looking for some platonic ideal,” she says. “You’re looking for something that works in the context and for the people for whom the system is being designed.”

For example, Delaney and research assistant Michael Gajewsky (Law ’18) conducted archival studies of several African Commonwealth countries to uncover the origins and evolution of the practice of “judge sharing” that occurs across national borders in the Commonwealth. They discovered that several countries adopted similar language in their post-independence constitutions. “This work was important and interesting because it gave lots of insight into the care (or lack of care) with which post-independence African judiciaries were crafted and the assumptions and views underlying their creation,” says Gajewsky. He considers himself very fortunate to have learned from and collaborated with Delaney, despite her “notoriously difficult exams” and reputation as “one of the most-feared cold-callers at the Law School.”

The reputation doesn’t bother Delaney, who takes her role as teacher and mentor as seriously as she does her research mission.

“I tell my students that a free and fair society requires everyone to be engaged and vigilant at all times,” she says. “[Legal decisions] are never truly done.” Think of Plessy v. Ferguson, she says, the “separate-but-equal” ruling that allowed state-sponsored segregation but that was later overturned in the landmark Brown v. Board of Education reevaluation.

“I challenge my students not to take things at face value, but to engage, question, and determine for themselves what they think about legal decisions. Constitutionalism must be nurtured. It’s a mixture of politics and law — and above all, requires engagement by the people.”