What Judges Don’t Say – Judicial Strategy and Constitutional Theory

Constitutional courts have become an almost universal solution to a perennial anxiety of democratic regimes, promising to reign in the excesses of majoritarian politics. Yet, however insulated from other branches of government courts are intended to be, their power is not exercised in a politics-free zone, and concerns over their political effectiveness, if not bare survival, accompany constitutional courts everywhere. Both in established and newly-emerging constitutional democracies, problems of overt or covert non-compliance by other political actors, and broader concerns with the court’s legitimacy, influence constitutional courts and constrain their interpretation of fundamental constitutional principles. However, while courts are acutely aware of this institutional dimension, they leave it out of their written decisions, sustaining the myth that adjudication involves nothing but principled deliberation. This silence then extends to constitutional theory, which fails to discuss the normative implications of this ubiquitous phenomenon. We propose to address this gap.

It is well known that institutional considerations concerning compliance, as well as concerns with the image and popular legitimacy of the court, regularly feature in constitutional adjudication. Indeed, courts have a repertoire of more or less subtle techniques to increase the purchase of their decisions and protect their institutional integrity. Thus, when the German Federal Constitutional Court was asked last year to decide whether the European Central Bank would be acting in line with the German constitution if it bought state bonds, savvy observers knew that the Court would not simply reject this measure, which stabilized the European market by Draghi’s declaration of intent alone, even though most judges on the bench would have wished to declare it ultra vires. The solution of referring the case to the ECJ was clearly designed to avoid this risky path. Similarly, it would be naïve to think that the switch in the Lautsi case – where the European Court of Human Rights approved the state practice of requiring crucifixes in public classrooms – was the outcome of substantive legal reasons alone, rather than also a response to the uproar over the lower chamber’s decision against this practice in Italy and the concerns it raised over the ECHR’s continuing authority. The subtlety with which courts craft their interventions was especially clear in the recent US Supreme Court decision in Hollingsworth v. Perry, where the Court cited technical restrictions on “standing” (the right to appeal to the Court), to refuse to decide whether it was constitutional for state laws to restrict same-sex marriage. The effect was to leave intact a district court’s invalidation of California’s Proposition 8 – which prohibited same-sex marriage – and thus, without delving into the substantive legal issue, the Court indirectly supported the legalization of same-sex marriage in California. The avoidance of popular backlash was subsequently hailed as a “prudent if unusual act of judicial statesmanship”.

The phenomenon we are dealing with is as pervasive as it is subtle. It is no less than the judicial task of building, maintaining and spending institutional (indeed, constitutional) capital over time. Why, then, do constitutional theorists, entrusted with providing normative guidance to courts, avoid grappling with this contextual dimension? By and large, theorists have limited their work to the substantive interpretation of constitutional principle and to foundational questions of the appropriate role of the court in constitutional democracies. Their view on how constitutional courts manage their institutional status is therefore implicit and often inconsistent, alternately viewing strategic decisions as wise and prudent, or as inevitable compromises, or as disreputable politicking, with none of these assessments couched in any general framework. This theoretical gap leaves courts to navigate their institutional choices in a normative vacuum, and behind the scenes.

Political scientists might object to this characterization of a gap in contemporary scholarship for they, unlike legal constitutional scholars, have long been interested in analyzing the institutional aspects of constitutional adjudication. Within the field pertaining to “judicial behavior,” the growing consensus since the 1990s has been that judges are strategic actors in the technical sense of the term. This view begins with a legal-realist rejection of the notion that judges simply discover and apply existing laws, while also taking as misguided the view – typical of 1960s and 1970s political science literature – that judges single-mindedly pursue their own individual policy goals. Drawing instead on game-theoretic analyses of interdependent interaction among rational actors, it models judges as strategic actors calculating to maximize the long-term attainment of their goals by factoring in the reactions of other players, within and outside the court. This increasingly influential approach claims to bear significant explanatory and predictive implications regarding judicial behavior. What do its findings imply for questions of constitutional theory?

Not much, unfortunately, for at least two, related, reasons. First, the view that judges “strategize” is all about form, while constitutional theory is as much about content. Accepting, arguendo, that judges strategize, what is it that they strategize about? The strategic approach takes judges’ policy goals as a fixed background of given, exogenous, “preferences.” This brackets the question of how such goals come to be formed, sidelining entirely the driving force at the heart of constitutional theory, namely, the aspiration to give concrete normative answers to social issues by interpreting the principles of liberal democracy as enshrined in constitutional texts. Contemporary constitutional scholarship has traveled a long distance from the old formalist fable about “discovering” the law, but it has not given up on the rule of law in this broader and more plausible sense. That is, constitutional theory is premised on a commitment to reasoned elaboration by judges of the normative principles accepted as fundamental to our polities. In short, the strategic approach does not think of constitutional courts as making principled decisions, while constitutional scholars see this as their fundamental task. It is as a “forum of principle” that courts must manage carefully – strategically or otherwise – the demands of institutional legitimacy in a given political environment.

Second, the political scientists’ agenda is of limited import because it is descriptive and external, while constitutional theory is (and should be) also prescriptive and at least partly internal. Descriptive accounts of judicial strategy are generally non-evaluative, although they may be read as either condemning or laudatory. In seeking systematically to guide and assess the behavior of courts, constitutional theory should find a way to reconcile the dual role of the court as both a forum of principle and an institutional player, and offer a principled answer as to the appropriate scope and purpose for strategizing, including how to prioritize when disparate concerns come into conflict. Theory, in other words, should not be content either with skeptical observations of judges’ actual practice or with an enigmatic call for virtuous judicial hunch.

How does one furnish a principled answer to this seemingly pragmatic question? The first task on our agenda is to provide some order to an otherwise messy field of explicit and implicit concerns that constitutional courts deal with. Constitutional courts strategize in diverse situations and with diverse tools. They may strategize for survival and self-protection in times of crisis, but also for increasing popularity, improving communication, and exercising moral leadership, political influence and soft power. A typology of pragmatic considerations tied to decisional contexts is an important component of a theory that candidly grapples with the reality of constitutional adjudication.

From this typology emerges a distinct category of normative considerations, which are not substantive but nevertheless relevant for constitutional adjudication. Our central goal is simply to establish this category of “considerations pertaining to institutional context” as second-order considerations, distinct from first-order considerations pertaining to constitutional principle. Our modest claim is simply this, that this category of considerations is both distinct and relevant to constitutional adjudication. The first implication of this claim concerns the process of normative deliberation that the court engages in. We propose that courts first deliberate on constitutional principle in isolation from context, and only later deliberate on considerations of institutional context. They would thereby clarify to themselves – and possibly to the public – whether there is a gap between what the principles of constitutional justice require and what the court is willing and able to prescribe.

By this modest move we already reject two extreme alternatives that echo, on the one hand, existing constitutional theory and, on the one hand, the recent consensus in political science. On one end of the spectrum is the position that gives categorical priority to constitutional principle, prescribing that the right decision be made in isolation from particular institutional context. “Fiat justitia, et pereat mundus” is the operational code of this deontological model, which ultimately pushes the court to risk also its own survival for the sake of standing on the side of justice. On the other extreme stand the dictates of a simple cost-benefit analysis, whereby the court would weigh, as perfect equivalents, the merits of the case against potential effects on its institutional capital. Neither of these models is apt for our aims: categorical priority to constitutional principle denies the court’s institutional role altogether, while the cost-benefit option circumvents the rule of law.

Is there a principled alternative? Our more ambitious proposal argues that there is. According more weight to the distinction between first- and second-order considerations, this model gives lexical priority to constitutional principle over most considerations of institutional context. That is, in most cases, the court would be generally required to declare what is mandated by constitutional principle, uncompromised. It should not constrain its interpretation of constitutional justice with concerns over its status and legitimacy. However, one particular set of fundamental institutional considerations – those that bear on the very existence of the court and the constitutional order – would be allowed (with some procedural restrictions) to trump constitutional principle.

Some may object to this attempt at a principled answer altogether. It does not befit constitutional theory, they would argue, to prescribe how judges should handle real-world institutional considerations far removed from principled determination of what is lawful and just. This objection may be based on either of two views. The first is a lingering formalist ambition, which seeks to cordon off constitutional law from political theory. Although courts typically continue to write as if such a separation is possible and desirable, thoughtful contemporary constitutional scholars rightfully reject it. A second objection may be that institutional considerations have no legitimate status in normative political theory, which should instead prescribe how things ought to be done in an ideal world – leaving the messy stuff of existing realities to ad-hoc and personal judgment, a kind of “situation sense” not amenable to principled deliberation. Against this view, we submit that responsible normative inquiry must aspire to address all the central elements that go into actual normative reasoning. Such an inquiry falls under the ambit of what John Rawls termed “nonideal theory.” Unlike ideal theory, which is concerned with a just society, or with a “realistic utopia” (Rawls, 1971),

Nonideal theory asks how this long-term goal might be achieved, or worked toward, usually in gradual steps. It looks for courses of action that are morally permissible and politically possible as well as likely to be effective. (Rawls, 1999)

It is with a commitment to nonideal theory that constitutional theory should finally begin to tackle the question of judicial strategy.


  1. Dworkin, Ronald. 1981: “The Forum of Principle.” N.Y.U. Law Review 56: 469.

  3. Epstein, Lee, and Jack Night. 2000: “Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead.” Political Research Quarterly 53 (3): 625-661.

  5. Hirschl, Ran. 2009: “The Realist Turn in Comparative Constitutional Politics.” Political Research Quarterly 62 (4): 825-833.

  7. Rawls, John. 1971. A Theory of Justice. Cambridge/Mass.: Harvard University Press.

  9. Rawls, John. 1999. The Law of Peoples. Cambridge/Mass.: Harvard University Press.

  11. Roux, Theunix. 2013: The Politics of Principle. Cambridge: Cambridge University Press.

The article has previously been published in German in:
WZB Mitteilungen, Heft 146, Dezember 2014, S. 22-25.

Written by and

Roni Mann is a Visiting Researcher of the WZB Center for Global Constitutionalism. Between 2012 and 2015 she has been a Research Fellow of the Research Professorship "Rule of Law in the Age of Globalization" at the WZB.
Website at the WZB

Conrado Hübner Mendes is Assistant Professor of Law at the University of São Paulo. In 2011 and 2012 he was a Visiting Researcher at the WZB Center for Global Constitutionalism on a Georg Forster Post-Doctoral Fellowship of the Alexander von Humboldt Foundation.
Website at the University of São Paulo

2 thoughts on “What Judges Don’t Say – Judicial Strategy and Constitutional Theory

  1. I wonder what you are trying to do. I fully agree with you that the three decisions you cite, and many more one could add, are suspect under aspects of pure first order considerations. On the other hand, the first order considerations the courts have given for their actual decisions are such that they justify those decisions very well; Joe Weiler certainly was very proud of his influence on the ECtHR’s Grand Chamber reversal in Lautsi, and he had adduced only first order arguments. It seems to me that the suspicions concerning those decisions are based less on their actual reasoning than on circumstances external to them: we believe we know how the courts would (not: should) have decided if certain external influences we know about had been absent. Of course, we may err, and the courts might have decided exactly as they did even without those influences, and for exactly the reasons they have actually given. Absent a sitting judge’s relevant statement there is no way of knowing. Judge Björgvinsson’s diss. op. in Scoppola (no. 3) eg does not give even a hint to second order considerations which might have influenced the 16:1 majority of the ECtHR’ Grand Chamber.
    Assuming that second order considerations are legitimate, would you advice courts to include them in their reasoning openly? Is it even imaginable for the ECtHR to say: “As a matter of first order considerations, prisoners should have, in principle, the right to vote. However, in view of the possibility that the UK might withdraw from the ECHR if we decide according to those considerations, you, Scoppola, an Italian prisoner, are denied the right to vote (and costs and expenses)”? To do so would be hardly compatible with the appearance of independence and impartiality of the court. And to replace the implied threat of the UK’s withdrawal with a wider threat to the ECtHR’s very existence would not basically change the matter. Indeed, to accept second order considerations under a threat to the court’s very existence might make that court appear susceptible to blackmail.
    Thus, while your approach may render some interesting balancing between constitutional principles and institutional interests, I feel it should not be offered as guidance to courts. Some things, maybe, are better left in the dark.

  2. Dear Professor Schilling, thank you for the thoughtful and acute comments on our essay. We share your concern regarding possible negative ramifications that an open deliberation on second-order questions would have for judicial independence and impartiality. We argue, however, that this concern must not prevent constitutional theory from operating with a realistic picture of how social and institutional pressures force courts to engage with considerations that rest outside the domain of legal and moral principle, and from providing guidance for handling this type of considerations.

    While some things might better be left in the dark as a matter of public justification (this is a question we plan to probe), they certainly should not be kept in the dark as a matter of constitutional theory and as a matter of internal deliberations. The theoretical discourse should aspire to be crystal clear about the considerations that factor into a decision, and seek to draw as sharp a line as possible between first- and second- order considerations, such that the relative weight of each be known — at the very least — to those who deliberate. We believe it to be the task of constitutional theory to supply a normative framework with which judges may handle all the normative considerations of relevance to their decisions. Reliance on enigmatic ideas like “judicial hunch”, “situation sense”, “intuition”, or “prudence” are unsatisfactory as guidance for legitimate decision-making. This should be the case even if, at the end, not all that occurred behind the scenes is publicly unveiled.

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