The Exceptional Role of Courts in the Constitutional Order

N.W. Barber & Adrian Vermeule*

In constitutional terms, the life of the judge is normally fairly unexciting. Most judges spend most of their time resolving disputes over facts and, having resolved the dispute to their own satisfaction, applying the law to the case. More rarely, judges have a lawmaking role, clarifying legal rules, filling in legal gaps, and—sometimes—modifying the law where necessary. The lawmaking task of the judge becomes more pronounced at higher levels of the judicial hierarchy, but even in the highest courts the latitude accorded the judge is grounded in the constitution and shaped by the law. The legal order, contained within the constitution, establishes the institution of the court and the office of the judge. It empowers the judge to make decisions that bind others in the system, determining the legal standing of her judgments. And, more generally, the legal order sets the broad principles of law that guide the judge when exercising her discretion. Even if the pre-existing law is not determinative of the decision, it can still shape the way the judge reasons towards her decision and limit the range of her discretion.
This Article looks at a rare, and in some ways more exciting, part of the judicial role: those exceptional cases when the judge is called upon to pass judgment on the constitution itself. This arises in three groups of cases, roughly speaking. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. The case requires the judge to pull herself up by her own bootstraps: she is ruling on the basis of her own legitimacy, and on the constitutional jurisdiction both of the courts and other institutions.
Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. On these occasions the existing constitutional order may seek to regulate the change, but the very challenge presented by the dispute involves the incapacity of the outgoing constitution to bind its successors.
Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. The judge must, in other words, act in a way she is not legally empowered to do.
These three groups of cases raise many different issues, but they are all instances of the judge’s exceptional constitutional role: situations in which the judge may properly decide the case in a manner that transcends, or even runs contrary to, the rules of the existing legal order. This Article surveys these situations, and reflects on the principles and processes judges have used, and should use, to guide their reasoning. Even if the positive rules of the legal order are unable to resolve the dispute, there are still underlying principles of constitutionalism the judge can call upon to guide and legitimate her decision. Furthermore, given the profound, even radical, implications of these types of decisions, the process by which the court reaches its decision may need to be modified; the judge may need to allow a broader range of interested parties and institutions to participate in the decision than would normally occur. Most broadly, we claim that constitutional decisionism is inevitable in such cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.

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© 2016 N.W. Barber & Adrian Vermeule. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Trinity College, Oxford; Harvard Law School. Thanks to Richard Albert, Mikolaj Barczentewicz, Cora Chan, Josh Chafetz, Ewan Smith, Cass Sunstein, and Mark Tushnet for helpful comments.