Chief justices and democratic resilience: Judicial leadership in times of constitutional crisis

This symposium is dedicated to one of its contributors, Dr. Julius Yam (1992–2024), who co-authored the article with Professor Cora Chan on Hong Kong SAR, and who tragically passed away during the finalization of the symposium after battling bravely against cancer. Julius obtained the LLB from the University of Hong Kong, and then went on to obtain an LLM from the University of Chicago and a DPhil in Law from Trinity College, University of Oxford. He joined the Faculty of Law at the University of Hong Kong as an Assistant Professor in 2021, and held visiting positions at the University of New South Wales, University of Melbourne, Max Planck Fellow Group in Comparative Constitutionalism, and University of Göttingen. Julius was a brilliant scholar who was much admired and cherished by his colleagues at the University of Hong Kong, and around the world, and who made important contributions to our understanding of how courts in authoritarian environments can sustainably advance liberal constitutionalism. His publications include numerous articles in leading journals such as the Modern Law Review, the International Journal of Constitutional Law, University of Toronto Law Journal, and Law & Social Inquiry. His forthcoming monograph with Cambridge University Press, Judging for Democracy, offers a comprehensive and innovative account of how courts in hybrid regimes can shore up democratic norms both judicially and extrajudicially, an account that will be particularly timely given the global crisis that liberal constitutionalism is facing. Julius was unconstrained by orthodoxy. He was always ready to challenge assumptions, and his work drew on a wide range of methodologies, including those of law, political theory and science, sociology, and psychology, as well as on an impressive range of jurisdictions. Beyond his excellent scholarship, he was a dedicated teacher, and was someone we all enjoyed working with. He will be sorely missed—but always remembered—for his insight, generosity, genuineness, humor, courage, and hopefulness. *** Judicial legitimacy is a cornerstone of constitutional democracy predicated on the rule of law. Although many values contribute to a robust account of judicial legitimacy,1 it is often described as a function of the relationship between judicial independence and judicial accountability. The idea that there is a dialectical tension between the two is a natural and familiar narrative: “Independence is needed to provide the benefits of judicial decisionmaking. . . but as more and more tasks are given to the judiciary, there is pressure for greater accountability because the judiciary takes over more functions from democratic processes.”2 More recently, scholars have resisted this simplistic paradigm as suggesting a problematic “zero-sum game.”3 A more nuanced view recognizes that some measure of accountability is necessary for democratic legitimacy and the two concepts—independence and accountability—can be reinforcing.4 But possibility is not probability, and in politics, if not in theory, the dialectical dynamic takes center stage. Even in stable constitutional democracies,5 the “counter-majoritarian difficulty”6 of an independent and unelected judiciary may lead to calls for greater democratic accountability7 in a manner that highlights the tension between the two concepts.8 But in hybrid regimes9—those with both democratic and authoritarian elements—the tension is ripe for exploitation: democratic backsliding is often coextensive with (or facilitated by) attacks on the judiciary.10 The pressures in hybrid regimes often come to bear on judicial leadership—because a judicial leader can, in one easily identifiable person, embody the potential for resisting a backsliding regime and serve as a focal point for enforcing political accountability (whether democratic or regime-focused). The more power a chief justice has, the more capacity she has to serve as an external defender of democracy and judicial independence.11 At the same time, the greater the role, the more it will attract criticism or capture, and potentially be weaponized in a form of “abusive”12 judicial leadership.13 And indeed, individual chief justices have sometimes been a source of resistance to authoritarian tendencies and sometimes been co-opted into facilitating them.14 Judicial leaders are thus key players in the construction and maintenance of judicial legitimacy. Acquiring a better understanding of how judicial leadership is (and can be) operationalized takes on urgency against the backdrop of democratic decay.15 In this symposium, we examine the role of the chief justice—in its myriad dimensions—in times of constitutional crisis.16 In so doing, we build on a rich literature that has explored judges’ intellectual leadership,17 and on recent and forthcoming work that is widening that lens by engaging with the personal qualities and institutional elements that contribute to effective leadership.18 In this introduction to the Symposium, we provide a tripartite scheme of the types of powers that chief justices wield—jurisprudential, administrative, and representational—and discuss the contextual factors that condition the effective use of these powers. This overview serves as a generalized backdrop to the jurisdiction-specific details covered by the contributors. The jurisdictions canvassed here are all democracies under stress, and in various stages of democratic decline. The chief justices in these systems have differing powers, personal capacities, and contingent opportunities that structure the scope and nature of their leadership potential and its substantive results. Have judicial leaders served to protect judicial legitimacy? Have they served to shore up democratic constitutionalism? In many of these jurisdictions, it is not yet possible to come to conclusions about the merits of leaders’ strategic or tactical choices. We leave that to future work. But in the process of briefly reviewing the contributions themselves below, we aim to highlight some broad insights about judicial leadership that emerge from the case studies and their comparative analysis. A chief justice in any individual system can play a wide variety of formal and informal roles. Using broad brush strokes, it is possible to identify three conceptual arenas of power: (i) jurisprudential power, or the ability to influence the substantive results of a given case through intellectual or persuasive leadership in deliberations (including whether dissents or concurrences are issued),19 or through agenda-setting powers to decide what is heard, when, and by whom; (ii) administrative power, or the responsibility of managing the apex court and/or lower courts or other adjacent bodies (e.g., office of the public defender), in terms of personnel, finances, disciplinary investigations for malfeasance, etc.;20 and (iii) representative power, or the authority to represent the “judiciary” vis-à-vis other branches, in the media, to civil society, or even regionally or internationally.21 The fine-grained elements of these powers—the procedures or practices themselves—may be articulated in formal ways, through written constitutional provisions or legislative enactments, or more functionally, through constitutional conventions and party politics. Some will be a product of the individual chief justice’s personal qualities and the contingent set of circumstances she inherits when coming into the role. And few chief justices will have the full range of these powers or be able to operate to their outermost limits. We assume in most instances a chief justice should be anticipated to seek to achieve as much judicial independence as possible, within the constraints of judicial legitimacy—at minimum, subject to the willingness of parties before the court to abide by its decisions.22 (As the contributors show, however, there are certainly contrary examples of chief justices using the position for personal or political gain with little concern for the institution.) Critically, the context in which a chief justice operates will construct the scope of her authority and the ways in which she wields her power. As a background statement, it is obvious that the set of skills and personal characteristics a chief justice brings to the role will impact her ability to perform.23 Does she have strong “task” skills (legal acumen, for example), as well as strong social and interpersonal skills? What drives her motivation in the role and her vision of the role of her court?24 Personality, capacity, and willingness to act are critical to understanding the range of options available to an individual leader and how she intends to manifest that leadership. The contributions to this symposium naturally include these idiosyncratic storylines, and they have relevance for any individual chief justice’s efforts to manage a crisis. In this Introduction, we focus on the institutional and societal context within which the individual chief justice operates. But it is, of course, the intersection of context and personal qualities that will determine the extent of an individual’s power, as many of the symposium’s contributions make clear. First, how does the chief justice come into the role? By whom was she appointed and for how long? Does her term match with or outlast the term of the government or president who nominated her? These technical details carry important information: Is she a career judge or non-career judge coming from another sector of the legal profession? Is she a political insider or an outsider? Is she beholden to a political benefactor? What is the expected career path for judicial leadership? Is appointment through a predictable rotation system (such as a formal rotation system, a limited term, or a seniority convention)? Does she have pre-existing relationships with colleagues and institutional knowledge? How long does she have in the role to effectuate her vision? Might she have been chosen for any particular set of skills or personal background? For example, does she represent a break with a previous regime, or an ideological alignment with a current regime? Second, what is the nature of the court’s support structures? These external allies are critical to courts’ effectiveness and may be pre-existing or need to be created or conditioned by the judges themselves.25 They can range from domestic bar associations or international networks of lawyers and judges, to various elements of civil society, including a form of “litigation support structure,” that leads to the right kind of cases being brought before a court.26 Judges have a range of tools through which they can seek to build support of this kind,27 but its strength is at least in part due to external and contingent factors. And, indeed, some of these support structures may introduce conflict—international relationships may be thought to undermine national self-determination (or political interests).28 Which networks are optional and which are mandated (e.g., supranational relationships like the European Union, etc.)? And, of course, a chief justice’s personal support structures may dovetail or conflict with those of the institution. The answers to these many questions will define both the expectations and the relationships that the chief justice will have to navigate within and without her court. For example, a legal insider might be more effective in executing jurisprudential leadership, whereas a legal outsider (and political insider) might be better placed to exercise representational power, with stronger connections to support her in the face of external attacks. And these relationships—their extent, existence, and management—will clearly condition her ability to exercise jurisprudential and representative powers and may even impact her efforts to wield administrative power. Finally, and critically relevant to the constitutional crises that are addressed in this symposium, there is the historical context in (and against) which the apex court and chief justice act. How has the complex relationship between independence and accountability been understood in the past? Are courts generally viewed as legitimate? Are chief justices viewed as partisan or for some other reason illegitimate?29 Is there a prior trajectory of successful independent judicial review? Exercises of representational power may be complicated by existing perceptions or understandings of the judicial branch—or of chief justices themselves. It is evident that the ability of a chief justice to manage a threatening regime—judicial statecraft—is contingent on many factors.30 Each contribution to this symposium tells an important story about democratic decline and the judiciary, as well as about judicial leadership. The case studies are nuanced and detailed, and we do not attempt to restate their many points here in this Introduction. Rather, to highlight cross-cutting comparative and design insights, we have grouped the contributions below by focusing on the dominant power or strategy used by the chief justice in the particular national or comparative context. In their article on the role of the Chief Justice of the Supreme Court of India, Rehan Abeyratne and Surbhi Karwa outline the expansive powers of the Chief Justice of India (CJI), who has tremendous jurisprudential power. Through his combined roles as head of the collegium, which appoints judges to the Supreme Court and High Courts, and as master of the roster, the CJI has the means to influence the broader membership of the judiciary, as well as to control the specific make-up of SCI benches and the cases those benches hear. In one fascinating through-line of their contribution, Abeyratne and Karwa trace the exercise of this jurisprudential power, noting its use for judicial silence: How can (or should) silence in hybrid regimes be understood? Is it strategic avoidance or an abdication of constitutional responsibility? “Living to fight another day” is only useful if a court does fight. In the context of the SCI, the silence has been coupled with problematic action—constitutional conventions have been violated, giving the Modi government more scope for unrestrained action. Perhaps the CJI is not expressly facilitating authoritarianism, but he is certainly not serving to stop it, and in this way, he is an “accelerant rather than an impediment” to democratic decline.31 In contrast, Yaniv Roznai and Shani Schnitzer credit the President of the Israeli Supreme Court (PSC), Esther Hayut, with “navigat[ing] the ‘ship’ that is the SC” through the rough waters of her term.32 They contend that no other PSC has faced such crises, particularly given the direct political attacks on the President and the Supreme Court itself. Hayut has played a deft balancing act, managing the jurisprudential output of the Court to protect the democratic core of the constitution through key examples of judicial statecraft. A cornerstone of this approach was to support the Knesset, both directly in a conflict with the government, and by leaving it with the authority to manage the complicated question of Prime Minister Netanyahu’s conflict-of-interest arrangement (in light of his been under willingness to protect the constitutional core the on the Court with a constitutional the highlight how Hayut used her agenda-setting power to that all justices of the for the in the the This Hayut from she the the the In their of South and credit the personal qualities of Chief Justice as his effective In a of his to in his personal But and do that the institutional judicial served as critical the power of his office as well as the of the of and of the his jurisprudential his social may have to criticism from the regime that have been more (and threatening to the a liberal justice the The idea that power of the support a chief justice is in and contribution on They an between administrative powers and broader judicial against a chief justice’s personal The structure of the judiciary the Chief Justice administrative powers, which are with a of a by the Supreme Court for the Judicial has the judicial and career but the Supreme Court many of This has been as and other norms that constitutional But in their contribution, and how chief justices have greater capacity to on their administrative power to and protect the judicial in of democratic The might be more easily the In the and highlight the ways in which a chief justice’s networks and work to condition the effectiveness of the leadership. the the Chief Justice as both the head of the judiciary and the President of the Supreme In on this role, was able to his personal and as a and of the regime in to a constitutional with institutional In contrast, who was as an to the influence of His jurisprudential leadership judicial but to a relationship with the political The story a question for who against the regime more In the of politics, is an than an Although to it that current Chief Justice efforts to build judicial support structures may be working to the her personal with the Court the of in In this it may be that or judges may have more and thus more scope to against As part of their contribution, and the institutional design of the Supreme the rotation system that structures the leadership. The system is by a term, by and the of the most This process for in leadership and efforts to court leadership with political does however, leadership and that the system to protect the Court during Although Chief Justice was in his or her leadership and use of leadership powers, and that the institutional structure some measure of path and the system set the for tactical they that a system is to be necessary or to serve as a on democratic In political leaders have and for or chief In the of these chief justices have to international networks for support and particularly on the European Court of the European Court of and justice and use the examples of Supreme Court Chief Justice and Supreme Court Chief Justice as case studies in against judicial attacks. and that these support structures may be and operationalized in to democratic they can be A co-opted or chief justice can these they how Chief Justice limited capacity, as well as of political and can lead international to make or about what a to judicial are efforts at democratic accountability or examples of judicial and when are they of or democratic these may be for without domestic the that international or supranational their In Hong Kong, chief justices have on international relationships to to the two that to for Hong Kong a legal system with a liberal rule of As Julius Yam and Cora Chan outline in their contribution, the two Chief from the and to themselves and their Court in a of Using jurisprudential power, they on case and even the appointment of judges from New and the In their representative capacities, they made public to various international to build and The to the legitimacy of these other courts and to the rule of under as the government to its authority over Hong Kong and its legal It is that the current Chief a in Yam and has his external on domestic Hong Kong and is to President in his The contributions to this symposium not only the and design of judicial leadership, they the of judicial legitimacy. As has judicial legitimacy has and the administrative, and representative functions we have More with the of chief justices tells how have operationalized their power and the role. But it into the of these three elements of legitimacy. The need for chief justices to on their judges and other public support structures a that legal legitimacy may be to come by in have that and can contribute to a that an judicial be of the The of South may serve as a useful even the how the political to a more when Chief Justice some of his most In of democratic backsliding or political tension is and the courts naturally of it is to on legal legitimacy and the of jurisprudential output the focus will to institutional and legitimacy. And the contributions that chief justices can (and in these Some seek to protect the through of jurisprudential avoidance or construct their support structures through administrative or representative leaders are able to on to the broader judiciary, as in the case of Chief Justice in or in the examples of and Hong support their courts in some advance or protect their personal As this this has in part on court’s scope of or a court is to operate without or by the political the ways in which chief justices may work to that and its judicial legitimacy. It has not to the with the authority of the court or with what is within the of a court’s But the contributions this the in in the contribution on Hong Kong, Yam and Chan that Hong Kong is to a in which there is judicial within a (and scope of authority and authoritarian control over much that within the court’s Even if the of judicial is not by authoritarian leadership, it be to the court through The contribution on India at how even a court might into a of In it is not to achieve legitimacy or if the of substantive authority democratic that only the democratic

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