The ghost of the results-oriented constitutional review

Donald Bello Hutt, Flanders Research Foundation (FWO) Postdoctoral Fellow, Institute of Philosophy, KU Leuven, Belgium; Visiting Researcher at the Tarello Institute for Legal Philosophy, University of Genoa, Italy

Andrej Kristan, Assistant professor, University of Genoa, Italy; Fellow of its Tarello Institute for Legal Philosophy; Member of the European Research Network for Law and the Cognitive Sciences (LACS)

 

Introduction

Judicial psychology made it to the front pages in Slovenia. This is due to a recent dissenting opinion of the Constitutional Court characterising the majority’s decision-making as ‘results-oriented.’^[1] Further accusations from all sides rapidly spread the fire. Here, we focus only on what sparked it off.

The dissent holds that both theory and comparative constitutional scholarship consensually reject outcome-driven decision-making as a highly reproachable practice; it violates judicial independence and impartiality as understood in the Western liberal democratic tradition.^[2]

We call this argument a ghost. It shows a scary picture of how judges decide. In reality, however, the portrayal is misleading. The ghost, as it happens, does not exist. In what follows, we refute the argument after elaborating it in charitable terms.

The Fear of Post-hoc Rationalisations

The reasons to believe that judicial independence and impartiality preclude results-oriented decision-making are simple. The principle of independence reigns in the institutional domain. It derives from the principle of separation of powers. It sets a guarantee that judges apply only recognisable legal sources and not the partisan or personal interests of the executive or the legislators. Results-oriented decision-making, however, does not satisfy this guarantee. Judges compromise it when they reason from the outcomes and then mask these preferences with legal jargon, instead of arguing from the law governing the case, towards a solution. This post-hoc rationalisation opens the door for a potential invasion in the judicial domain of extra-legal considerations possibly imposed even by members of other branches. This explains why results-oriented decision-making is considered to conflict with the guarantee of judicial independence from the legislative and the executive powers.

Judicial impartiality, by contrast, frames the relationship between the judge and the parties of a case. These restraints are of two kinds.^[3] On the one hand, they regard the subjective state of mind of the judge and preclude her prejudice or bias. Results-oriented decision-making seems to indicate the opposite, for the determination of what laws to use in the justification comes after the judgement itself. On the other hand, the requirement of impartiality has to do with appearances. Courts in a democratic society must inspire confidence in the public. They must not only be impartial but appear as such objectively. This image, too, is compromised when judges reason from a predetermined outcome towards its rational justification based on the facts of the case and the sources of law, not the other way around.

The preceding story fills the gap in the argument from the dissent above, between the rejection of results-oriented decision-making and the principles of judicial independence and impartiality. Nonetheless, as the next section shows, the claim in question is still indefensible for three reasons. First, it is not true that the results-oriented decision-making is rejected by common accord of theorists and comparative constitutional scholars. Second, proscribing mental processes is unacceptable in the Western liberal democratic tradition. Third, it is not true that results-oriented decision-making necessarily violates judicial independence and impartiality.

The Emptiness of the Reproach

Our first charge is easy to prove. Results-oriented mental processes in judicial decision-making are not unanimously taken as reproachable.^[4] As it happens, at least since Hutchenson’s ‘Judgement Intuitive’ (1929), important work has been carried out in the psychology of judging and, more recently, in the neurosciences, as well. On this basis, mere intuitions have been carefully distinguished from judicial hunches, and these have been provided with epistemological justifications that save them from arbitrariness. There is no need to scrutinise these claims, here. Their existence suffices to reject the view that post-hoc rationalisations of judicial decisions are consensually regarded as a reproachable practice.

Second, any repudiation of mental processes conflicts with the achievements of the liberal democratic tradition the dissent itself extols. Barring some perfectionist strands, liberalism generally precludes not only legal but even moral intervention in one’s thought processes. Accordingly, thoughts are governed by the principle of individual autonomy, where public dictates cannot enter. Only external behaviour may be the object of normative interventions inasmuch as it bears on intersubjective relationships between individuals. In the judicial domain, this translates into the distinction between motives as psychological causes of a decision, and its justifying reasons. Whereas the latter are susceptible to criticism, the former are not.

Finally, the argument from the dissent would not succeed even if it wasn’t confined to the liberal democratic tradition. Indeed, by centring its criticism on personal thought-processes expressed behind closed doors, the dissent makes a categorical mistake of conflating the person holding an office with the institution of the judiciary. Qua individuals, judges are entitled to follow intuition, hunch or insight inasmuch as these do not constitute the grounds of the decision; that is, that they are not included in the text as dispositive elements. As institutions, judges are constrained by the civilising force of hypocrisy; i.e. they must form their preferences in law-ruled ways, namely, by subjecting their reason-giving to formal requirements of justification. To the extent that the justification of the decision offered to the parties and to the citizenry evinces that their preferences are attentive to the parties’ arguments, account for the evidence they provide and are framed in the language of the law, the impartiality and independence of the judiciary are not jeopardised by us accepting that judges follow hunches, intuitions, or even that they prefer a given outcome over another before offering a public justification.

Conclusion

Fears tend to dissipate once we understand their causes. The dissent builds a ghost. As spooky as it may seem, results-oriented decision-making as a psychological process is not to be feared. We have attempted to show, in this short blog post, that post-hoc rationalisations are constrained by the institutional safeguards that shape judicial processes. The requirements of impartiality and independence do not ask from judges to be alien to personal insight, hunch, or intuition, as biased as these may be. Neither are the principles at hand thought to impede judges from preferring an outcome from the start.

The authors wish to thank Richard Albert for his comments on an earlier version of this text.

^[1]  See the Slovenian Constitutional Court decision in the case of constitutional review of the Aliens Act: Decision No. U-I-59/17-32 from Sept. 27, 2019 (judge Jaklič, dissenting, based this accusation on discussions held behind closed doors).

^[2]  Here is the original wording: ‘V teoriji in primerjalni ustavni stroki je namreč rezultatsko odločanje soglasno sprejeto kot nekaj najbolj zavržnega, saj gre za kršitev sodniške neodvisnosti in nepristranskosti.’ (US RS, U-I-59/17-32 from Sept. 27, 2019; judge Jaklič, dissenting at page 6).

^[3] See, for example, the ECtHR decision in the Piersack case and its progeny distinguishing subjective and objective elements of impartiality: Piersack v Belgium (1983) 5 EHRR 169.

^[4] See, inter alia, Bartosz Brożek, The Legal Mind. A New Introduction to Legal Epistemology, Cambridge, Cambridge University Press, 2019; Diana Richards, ‘When Judges Have a Hunch: Intuition and Experience in Judicial Decision-Making’, Archiv für Rechts- und Sozialphilosphie, Volume 102, Number 2 (April 2016), pp. 245-260; Mark C. Modak-Truran, ‘A Pragmatic Justification of the Judicial Hunch’, University of Richmond Law Review, Volume 35 (2001), pp. 55-89; John E. Simonett, ‘The Use of the Term “Results-oriented” to Characterize Appellate Decisions’, William Mitchel Law Review, Volume 10 (1984), pp. 187-211.