II. The Necessity of Political Calculation

The legitimacy of a court rides on the belief of its constituents that the court has the right to exercise its authority in a certain domain.3 The legitimate domain of a court is set by a system of three boundaries: 1) legal discourse; 2) constitutional rules; and 3) politics. These boundaries are nested: constitutional rules limit the boundaries of legal discourse; and politics limit the boundaries of the other two.4 A court is limited in its action by its method of legal discourse. If it is interpretive and elastic (such as the US Supreme Court or the WTO Appellate Body), then it has wide latitude in its decisions. But, regardless of its method of legal discourse, the scope of action is constrained by the constitutional rules of the court. Moreover, regardless of the constitutional rules, the courts breadth of action will be limited by political reality. Therefore politics, must be a consideration of any court.

III. Case Studies

In an effort to further understand what it looks like to operate within political limitations, we will examine the United States Supreme Court and the WTO Appellate Body. Each of these judicial systems have wide latitude in action under the limitations of legal discourse and constitutional rules. However, each is still constrained by politics.

A. United States Supreme Court

1. Powerful Court

The US Supreme Court is widely regarded as one of the world’s most powerful judicial bodies. Through the seminal case, Marshall v. Madison, it acquired a wide degree of latitude for its action.5 It can strike down laws passed by the legislative branch or actions of the executive branch as unconstitutional, allowing it to limit the other branches of government. Over time, it has accumulated enormous legitimacy—particularly when compared to international courts. Where the ICC is dependent on the good will of sovereign states to give it effect, the US Supreme Court’s legitimacy allows the benefit of reliable enforcement by the other branches of the United States government. This is partly due to the right of the United States to effectively propitiate its state sovereignty while the ICC is an international judiciary body. Despite the power and legitimacy the Supreme Court enjoys, it still makes political considerations in its decisions and its regulated by the other branches of power.6

2. Political Limitations

The Supreme Court is primarily limited politically by the danger of reprisal or punishment from the other political branches of the US government. The Supreme Court must be strategic in its decisions to either establish new doctrine or to defend established doctrine against political ill will, else it face such reprisal or punishment. An instance in which the influence of politics on the Supreme Court was most clear was the famous “switch in time to save nine.”7

The Supreme Court frustrated Franklin Roosevelt’s plans for the creation of economic stimuli during the Great Depression—striking down several laws as unconstitutional in a series of split decisions. In the presidential elections of 1936, Franklin Roosevelt was reelected by a landslide, carrying on his coattails a two-thirds majority of both Houses of Congress, and nearly three fourths of the state legislatures. The following year, the Roosevelt administration proposed the Judicial Procedures Bill of 1937, which would have allowed the President to appoint an additional Supreme Court Justice for each Justice who reached 70 years of age without retiring. This would have allowed the President to appoint enough Justices of his own choosing to shift the balance of the Court, perpetuating party biases within the court system.8

Within a few weeks of Roosevelt’s “court packing” proposal, the Supreme Court issued its opinion in West Coast Hotel Co. v. Parrish.9 In a 5–4 decision, the Court upheld a Washington State minimum wage law—the sort of governmental economic intervention that had been struck down in the previous decisions. Justice Owen Roberts (the swing vote on the bench) suddenly began to vote in favor of Roosevelt polices as they appeared in front of the Court. This action, likely based on consideration of the political circumstance by at least one member of the Court, protected the court from a significant blow to its legitimacy.10

3. Culmination of Legitimacy

Decisions protecting the legitimacy of the Supreme Court by taking into account political limitations have led to a court trusted with power by its constituents. The acid test of legitimacy is whether or not people obey the courts decisions even though they disagree with its decisions. The United States had this put to the test in the Bush/Gore election of 2000. The vote was close. Al Gore received the most popular votes. But, under the Electoral College system, the result depended on which candidate won the state of Florida. In Florida, fewer than 1000 votes separated the candidates. Chaos reigned. Some counties started a recount. Others did not. The Supreme Court stepped in, and ruled that Bush had won.11 Al Gore, and the people of the US accepted the court’s decision. The American public trusted the legitimacy of the Supreme Court in a hastily made decision, that determined the next President of the United States. Moreover, the case was close and years after, many questioned the lawfulness of the outcome.12 This shows the legitimacy that the United States Supreme Court has been able to build. This was possible through the careful consideration of political boundaries to the Courts action, and the Court limiting its action accordingly.

B. The Court of Justice of the European Union

1. Openness for Growth

The Court of Justice of the European Union has proven to be self-expansionist. Through a series of decisions, it has used its legal discourse to expand its own power. Where once its judgements were binding only under international law, it has expanded its power, through its own rulings, so that its decisions are directly enforceable in cases filed by private litigants in the domestic courts of the member states of the European Union. Other examples of the CJEU’s self-innovation included powers for supranational law making and the development of human rights jurisprudence. These doctrinal innovations were justified on the basis of the language of the law by the CJEU.13 However, such aggressive expansion comes with the possible backlash from different constituents.

2. Political Limitations

The Court of Justice of the European Union’s aggressive expansion of its own power has not been without challenges to the court’s legitimacy. Legitimacy concerns inevitably arise when international courts extend their mandates beyond the unambiguous provisions provided by the constitutional rules. The CJEU in its decisions has to be worried about the backlash of its constituent governments. As it grew its position, it had to be worried that its self-assigned power would not be affirmed by the member states of the European Union. There have indeed been a range of backlashes against some particular expansions of existing doctrines. To this end, the CJEU took steps which carefully considered political boundaries in advancing its agenda. For example, the CJEU carefully nurtured its relationships with its constituents to cultivate deeper relationships and gain influence. CJEU judges and members of its secretariat would regularly participate in events along with scholars and practitioners of E.U. law. Additionally, the court invited national judges to its home turf in Luxemburg, to discuss European legal issues while sharing fine dining. Outreach efforts like these were designed to garner information to allow the court better understand its political boundaries, as well as extend those boundaries by building relationships with legal practitioners within its jurisdiction. Furthermore, the CJEU made additional attempts to ascertain the political will of its constituents, for example, using the EU Commission as a bellwether by watching its positon on important cases as a sign of where the political boundaries lay.14

3. Evidence of Success

Despite potential concerns, European Union member states have repeatedly validated the CJEU by expanding the court’s jurisdiction. In 1998 member states created the Tribunal of First Instance. In 1993, member states authorized the CJEU to levy financial sanctions for noncompliance with CJEU rulings. Finally, in the 2009 Lisbon Treaty, member states granted the court jurisdiction of certain domestic issues. These expansions display the successfulness of the CJEU as an international judicial body and qualify member states’ contentment with its decisions and policies.

IV. World Trade Organization Appellate Body

The legitimacy of the WTO Appellate Body is often attacked on the grounds of judicial activism. These complaints generally center on the proposition that judicial law making has shifted the rights and responsibilities of lawmaking in the WTO from trade negotiations, to the dispute resolution body. This judicial lawmaking is permissible under the WTO agreements.15

A. Capacity for Activism

The WTO dispute settlement system was originally conceived for the purposes of enforcing the substantive rules being established through negotiations of the WTO agreements between member states. As the years have passed, judicial lawmaking in the WTO dispute settlement system has become more expansive than originally expected. This has been magnified by a higher volume of cases than expected. However, this is not prohibited by the WTO agreements. The constitutional rules of the WTO give significant leeway to the Appellate Body to make law. Furthermore, the legal discourse of the Appellate Body is interpretive, and not just the simple application of rules. The elastic and interpretive nature of its legal discourse either permits the Appellate Body to be politically functional or permits dysfunctional judicial lawmaking.16 This is clear in the interpretive nature of the Appellate Body and the lack of definitive discourse. Therefore, it is difficult to discern whether or not the Body is actively efficient in its intended purposes of dispute settlement.

B. The World Trade Organization’s Political Limitation

However, the Appellate Body is subject to political limitations as well. Powerful members of the WTO (such as the US) have the ability to select Appellate Body candidates. Additionally, the Appellate Body always faces the possibility of the defiance of powerful members.17 Realizing the necessity of avoiding political pitfalls, the Appellate Body deliberately seeks information of the preferences of powerful members.18 A political pitfall could result in these occurrences, and it appears that is exactly what has happened.

C. Appellate Body De-legitimization

Political tensions have risen in the WTO in recent years. The Peoples’ Republic of China (China) has become an increasingly large player in the multilateral trade system and its economic system has caused systems friction with many of its trading partners—the United States in particular. The US maintains that certain aspects of the Chinese economic system are inherently unfair and harming its industries. China smarts at the massive tariffs that the United States imposes on Chinese imports in reprisal. This has resulted contentious litigation over key issues of law, requiring interpretation, with billions of dollars in trade flows hanging in the balance.19

The WTO Appellate Body is stuck right in the middle. It has already been called upon to make interpretive decisions where, inevitably, one of the largest and most powerful economies in the world will chafe at the outcome. The Appellate Body, in a recent decision, struck down US tariffs established to protect against what the US saw as unfair trading practices by China.20 Rulings like these break through the political boundaries constraining the WTO judiciary. The United States, after suffering defeat, does not trust the legitimacy of the Appellate Body or the World Trade Organization. As a result, the WTO is suffering from some of the possible political ramifications already asserted. The United States has initiated a policy of blocking all judicial appointments to the Appellate Body. Furthermore, it has threatened to withdraw from the WTO entirely.21 The United States, once the biggest proponent of the WTO, has become hostile because of the dispute settlement system’s failure to act within its political limitations.

V. Measures to Ascertain Political Boundaries

To ensure that a court remains with the boundaries of its political situation, it must understand the political concerns of its constituents. The CJEU is an excellent example of success in that area and consequently a highlighted case study in this comment. The CJEU made a particular effort to engage with its constituents. It virtually lobbied them for their approval through personal interaction and fine dining. This has the added benefit of providing up to date information on the prevailing political boundaries. This allows the court to adjust its actions to remain within these boundaries.22 Such measures will be necessary for the ICC to engage in and emulate based upon the system that The European Court of Justice operates within.

VI. Conclusion

As stated throughout this comment, it is apparent that Courts are controlled to an extent by the power allocated to them politically. I have used the US Supreme Court and the WTO Appellate Body as case studies qualifying the salience of legitimacy in the effectiveness of a court system. As a result, the ICC should consider the political implications of its actions. As an international judiciary body, it has a larger number of constituents to consider. Additionally, ICC has the capacity to be a powerful governing body. However, overstepping its political boundaries will result in a loss of legitimacy—legitimacy which is absolutely necessary for its effectiveness. To this effect, the ICC should ascertain its political boundaries by collecting information on the political concerns of its constituents. Moreover, it should exercise caution in its actions to stay within those boundaries to avoid a loss of legitimacy. Even if such action would be permissible by constitutional rules, the ICC needs to limit its actions to its perceived political boundaries to cultivate legitimacy, and thereby enhance its position to a trustworthy body.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   James L. Gibson, Delmar Karlen & Brian P. Smentkowski, Court, Encyclo. Britannica, available online (last visited Jun. 15, 2018). ↩

2. 2.

   See Gregory A. Caldeira & James L. Gibson, The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support, 89 Am. Pol. Sci. Rev. 356 (Jun. 1995), paywall, doi. ↩

3. 3.

   Erik Voeten, Public Opinion and the Legitimacy of International Courts, 14 TIL 411 (2013), available online. ↩

4. 4.

   See Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 Am. J. Int’l L. 247 (Apr. 2004), available online, paywall, doi. ↩

5. 5.

   Marbury v. Madison, 5 U.S. 137 (1803), available online. ↩

6. 6.

   See Mathew D. McCubbins, Roger G. Noll & Barry R. Weingast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the Rule of Law, 68 S. Cal. L. Rev. 1631 (1994), available online. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   West Coast Hotel Co. v. Parrish, 300 U.S. 379 (Mar. 29, 1937), available online. ↩

10. 10.

    Daniel E. Ho & Kevin M. Quinn, Did a Switch in Time Save Nine?, 2 J. Legal Analysis 69 (2010), available online. ↩

11. 11.

    Bush et al. v. Gore et al., 531 U.S. 98 (Dec. 12, 2000), available online. ↩

12. 12.

    See Lawrence H. Tribe, The Unbearable Wrongness of Bush v. Gore, 19 Const. Comment. 571 (2003); see also Peter Berkowitz & Benjamin Wittes, The Lawfulness of the Election Decision: A Reply to Professor Tribe, 49 Vill. L. Rev. 101 (2004), available online. ↩

13. 13.

    See Laurence R. Helfer & Karen J. Alter, Legitimacy and Lawmaking: A Tale of Three International Courts, 14 TIL 479 (2013), available online. ↩

14. 14.

    Id. ↩

15. 15.

    See Steinberg, supra note 4. ↩

16. 16.

    Id. ↩

17. 17.

    Mark Wu, The “China, Inc.” Challenge to Global Trade Governance, 56 Harv. Int’l L.J. 261 (2016), available online.

    (An additional political ramification could be the re-negotiation of the WTO agreement governing the dispute settlement body, but the political situation amongst WTO members is such that it is unlikely that the necessary consensus could be reached unless the Appellate Body’s political error was practically cataclysmic). ↩

18. 18.

    See Steinberg, supra note 4. ↩

19. 19.

    See Wu, supra note 17. ↩

20. 20.

    e.g. United States—Certain Methodologies and their Application to Anti-Dumping Proceedings Involving China, WTO Doc. WT/DS471/AB/R (adopted May 22, 2017), available online. ↩

21. 21.

    Ana Swanson, Once the W.T.O.’s Biggest Supporter, U.S. is its Biggest Skeptic, N.Y. Times, Dec. 10, 2017, available online. ↩

22. 22.

    See Helfer & Alter, supra note 13. ↩