Arne Cools, Cédric Labens, Liselotte Leenaerts and Manon Moerman (master students UGent), Jurgen Goossens (doctoral researcher, UGent) and Pieter Cannoot (assistant, UGent)

SCOTUS Following his recent passing, the succession of Antonin Scalia, Justice of the Supreme Court of the United States (SCOTUS), has sparked heated discussions in the United States for some time now. After all, there is a lot at stake. A new justice within SCOTUS could shift the ideological balance within the Court. In Belgium, the appointment of a new judge within the Constitutional Court is seldom a hot topic of discussion. This blog post analyzes the main similarities and differences between the Belgian Constitutional Court and SCOTUS regarding various aspects of the political or ideological positioning of the judge. How are both courts composed, and what is the appointment procedure for judges? To what extent do political and ideological convictions have a visible influence on the decision-making process of both courts? Lastly, we will examine the possibility and desirability of introducing dissenting and concurring opinions in the Belgian Constitutional Court, comparable to SCOTUS.

Special position within the judicial branch

In Belgium, judicial tasks are distributed among the ordinary courts on the one hand (judicial branch sensu stricto), and the administrative courts, the Council of State and the Constitutional Court on the other hand (judicial branch sensu lato). The Constitutional Court has a position sui generis. Traditionally, it was the intention that the Court would only act as a negative legislator by quashing legislation that violated the Constitution. However, an evolution can be observed towards a more positive (framework and precision) legislator, for instance concerning legislative gaps. In this regard, the Court has recently played a proactive role by filling legislative gaps itself, without waiting for action by the legislator.

SCOTUS has jurisdiction to verify the constitutionality of federal and state legislation, known as ‘judicial review’. The nine Justices exercise their task in a cautious way and have the discretionary power to pick and choose the cases they wish to treat. A petition is denied when less than four out of the nine Justices decide to allow the case and if it does not invoke sufficiently important questions of federal law. As a result, the composition of the court has an influence on which cases are dealt with by SCOTUS. By contrast, the Belgian Constitutional Court does not have the possibility to choose which cases it would like to deal with. It rules on all cases brought before the court.

Composition and appointment procedure

Article 2, section II of the US Constitution stipulates that the President “shall nominate and by and with the advice and consent of the Senate shall appoint … judges of the Supreme Court.” As a result, it is up to the President to nominate a candidate judge, who must then be approved by the Senate.

The composition of SCOTUS is determined by the Judiciary Act of 1869, and at the moment amounts to nine judges: one Chief Justice and eight Associate Justices. In order to safeguard the independence of the judge, the appointment is for life, comparable to the Belgian Constitutional Court. In Belgium however, the judges’ tenure is limited to the age of 70. Once the US President selects a candidate, the latter is extensively heard by a permanent committee within the Senate, known as the Senate Committee on the judiciary, before being subjected to a vote. This intervention by the Senate, as prescribed by the Constitution, regularly leads to an arduous appointment procedure. In order to be appointed, a candidate must have the support of the President at that time as well as a majority in the Senate. Therefore, one might need the support of two different parties, as is currently the case with the democratic president Obama and the Republican majority in the Senate. At the moment, the American Supreme Court consists of four ‘conservative’ and four ‘liberal’ judges, respectively leaning towards the republicans and the democrats. The death of Justice Scalia, who was part of the group of conservative judges, provides president Obama with the possibility of altering the balance within SCOTUS towards a majority of five rather liberal judges. President Obama’s recent candidate judge, Merrick Garland, is in any case more liberal than Scalia. His Senate confirmation, however, is still uncertain.

With regard to the composition of its Constitutional Court, Belgium uses the following formula: twelve judges of at least 40 years of age, comprising six Dutch-speaking and six French-speaking judges.
Each language group in turn equally consists of judges with at least five years of legal experience (full professor of law at a Belgian university, magistrate at the Court of Cassation or the Council of State, or law clerk at the Constitutional Court), and individuals with at least five years of political experience as a member of the Belgian Chamber of Representatives, the Belgian Senate, or a state parliament.

Moreover, a certain gender balance is also pursued after the expiry of a transition period, namely a representation of at least one third for the least numerous group in both above-mentioned categories.
In theory, two candidates meeting these conditions are alternately nominated by the Chamber of Representatives and the Senate, with a majority of at least two thirds of the votes from the present members, for appointment by the King. In practice, a candidate must actually have the support of the political party which is at that time allowed to nominate a candidate. The twelve seats of the Constitutional Court are de facto distributed among the political parties. The Dhondt system is used to calculate which political party is empowered to fill the open seat. Considering the outcome of the 2010 federal elections, for the first time the Flemish party N-VA nominated a judge for the Constitutional Court in late 2013. In her recent doctoral dissertation, E. MAES pleads for further diversifying the composition of the Court to include not only professors and magistrates, but also representatives of civil society and the business world. In addition, she believes it would be beneficial that the Constitutional Court would seek assistance from amici curiae (experts sharing their knowledge with the judge on a voluntary basis or upon request), comparable to SCOTUS.

Ideological influence on the interpretation of the Constitution

The ideological balance within the Constitutional Court is thus primarily determined by the Dhondt system. According to T. MOONEN, there is an important relation between the judges’ ideology and the outcome of their judgments. However, in Belgium it is difficult to conduct a quantitative analysis of this subject. Firstly, there are neither voting data nor detailed ideological profiles of the judges of the Constitutional Court. Secondly, the political system in Belgium is, unlike the US, not based on a system in which one ideological political movement has a majority in Parliament. Belgium is characterized by a coalition system, whereby legislation is often the result of an (ideological) compromise.

According to E. MAES, all social movements should be represented within a constitutional court, without being limited to the political spectrum. She argues that one should ask how candidate judges view themes such as economy, fiscal matters, and abortion. The societal views on these issues do not always match the existing political spectrum.

The ideological influence on the interpretation of the Constitution can more easily be observed in the case law of SCOTUS. One can, for instance, distinguish periods with primarily conservative and primarily progressive case law. One of the most well-known progressive periods is the one of the so-called Warren Court (1953-1969), which held racial segregation in public schools unconstitutional in the landmark decision Brown v. Board of education. The appointment of judges by Republican Presidents Nixon, Ford and Reagan led to a conservative majority within SCOTUS, as reflected in the case law."An ideological shift of large magnitude"

The death of Justice Scalia may now give President Obama the opportunity to start a more progressive period. The appointment of Merrick Garland would result in an ideological shift of large magnitude within SCOTUS: either Garland would join the current liberal faction, or he would become the new ‘Median Justice’ casting the decisive vote in case of an equal number of liberal and conservative votes. In both cases, SCOTUS would follow a more liberal course in the future.

Concurring & dissenting opinions

The ideology of the SCOTUS justices is among others more easily noticeable by the publication of separate opinions. Concurring and dissenting opinions demonstrate the underlying motives and reasoning of the judges. In Belgium, judges are not allowed to publish separate opinions. In common law countries, however, the publication of these opinions is a common practice.

A concurring opinion is the opinion of a judge that is in line with the majority opinion, though relying on different arguments. A dissenting opinion means that the judge arrives at a judgment departing from the majority opinion. Even though these opinions are not binding, their impact should not be underestimated. Justice Brennan articulates this as follows: "The dissent . . . safeguards the integrity of the judicial decision-making process by keeping the majority accountable for the rationale and consequences of its decision".

Within the Belgian Constitutional Court, however, it is more difficult to implement separate opinions. Developing a balanced judgment within the Court, which is equally composed of Dutch-speaking and French-speaking judges, is regularly a delicate undertaking. Separate opinions could exacerbate the institutional tensions in the Belgian federal state. According to P. POPELIER and J. DE JAEGERE, the Belgian Constitutional Court safeguards the often delicate balances that stabilize the typical Belgian consensus democracy. The authors have written this in response to the opinionating article of
B. MADDENS who criticized that the Court was ‘nibbling’ at the Flemish power concerning foreign trade, thereby contributing to the ‘Belgian restoration’.

In her doctoral dissertation, E. MAES not only pleads for a more diversified Constitutional Court, but also for the introduction of dissenting opinions. She does, however, add the nuance that a possible prohibition to write separate opinions could be established in case of delicate themes, or that these opinions could be published anonymously, as is the case in Denmark. T. MOONEN also argues that the court should offer a better reasoning of the path they have followed to reach their decision. This does, however, not necessarily have to be pursued via dissenting opinions, but is also possible by means of a more substantial reasoning in the judgment.

To be continued

This blog post, written following the passing of Antonin Scalia, demonstrates how the appointment of a new judge in SCOTUS or the Belgian Constitutional Court may have significant consequences.
Both in the US and in Belgium, political parties are involved in the appointment of these judges.
The appointment of judges with a different political or ideological background ensures diversity in the Court. However, there have recently been calls for an even more diversified composition of the Constitutional Court in order to include more than legal experts and former politicians. These calls deserve to be analyzed in more detail in the near future. The ideological profile of the judges in the Belgian Constitutional Court and the possible influence thereof on the interpretation of the Constitution are currently difficult to analyze. The possibility of separate opinions could shed some more light on these matters. However, the possible introduction of such opinions in the Belgian Constitutional Court deserves further research.

Bibliography

BOONE, R., “Een diverser Grondwettelijk Hof voor meer legitimiteit en kwaliteit.” (Interview met Evelyne Maes), Juristenkrant 2016, afl. 324, 8-9.

GOOSENS, J. & HAECK, Y., “Opvulling van lacunes in de wetgeving: evolutie van het Grondwettelijk Hof in België van negatieve tot positieve wetgever.” TVCR 2014, 350-362.

MOONEN, T., Het Grondwettelijk Hof en de interpretatie van de Grondwet. Proefschrift voorgelegd tot het behalen van de graad van doctor in de rechten, Universiteit Gent, Transnationale universiteit Limburg, 2014, IV, 680.

MOONEN, T., “Graag meer aandacht voor besluitvorming Grondwettelijk Hof.” Juristenkrant 2014, afl. 284, 12.

POPELIER, P. & DE JAEGERE, J., “Het Grondwettelijk Hof: Belgische restauratie noch Vlaams voorvechterschap”, Juristenkrant, 2015, 13.

STONE SWEET, A., “Constitutional Courts.” ROSENFELD, M. en SAJO, A. (eds.) The Oxford Handbook of Comparative Constitutional Law. Oxford, Oxford University Press, 2012, 816-830.

UYTTENDAELE, M. & MARTENS, P., Précis de droit constitutionnel belge: regards sur un système institutionnel paradoxal. Bruxelles, Bruylant, 2005, XIII, 1196.

VANDORMAEL, K., “Het Grondwettelijk Hof: rechter of regelgever.”, Brussel, Larcier, 2015, 1-11.

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