By Federico G. Thea*
Abstract.
The
study of judicial behaviour has become increasingly important in the last
decades, especially due to the increasing judicialization of the most
fundamental political dilemmas in modern democracies. However, some traditional
legalistic conceptions still assert
that knowledge of judicial decision-making is exclusively linked to the study
of positive law, and consider judges “as a unique body of impervious legal technicians above and
beyond the political struggle”. In this essay, the importance of studies on judicial
behaviour will be highlighted, and it will be argued that the traditional
assertion that judges are ‘above and beyond’ the political struggle
is fundamentally flawed. In so
arguing, special attention will be paid, firstly, to the main approaches to
empirical judicial studies. Secondly, a brief account of how the nature and structure of
the various dissimilar judicial systems affect the political significance of
courts and judicial decisions in different legal systems will be provided.
Lastly, three cases concerning
judicial intervention in core political quandaries in different jurisdictions
will be examined (Bush
v Gore, the Binyam
Mohamed case, and the Berlusconi case);
in order to analyse whether in
deciding such prominent political dilemmas the judges positioned themselves
‘above and beyond’, ‘below and within’, or at some point in the middle of, the
political struggle.
I.
Introduction.
Over
the last few decades, many modern democracies have experienced an increasing
judicialization of the most fundamental political dilemmas.[1] Thus, the study of
judicial behaviour has become increasingly important, not only to gain more
accurate knowledge of how judges make decisions, but also to improve judicial
appointments[2] and accountability
mechanisms.[3] Yet, neither legal
theories nor social science’s empirical approaches have been able to provide a
complete and coherent account of the key factors influencing judicial
decisions.
On
the one hand, traditional legal scholarship asserts that knowledge of judicial
decision-making is exclusively linked to the study of positive law.[4]
In Shapiro’s words, this legalistic approach considers judges “as a unique body
of impervious legal technicians above and beyond the political struggle”.[5] On the other hand,
“the view that…judges are policymakers has become all but axiomatic among
political scientists”.[6]
Although nowadays only a few legal scholars hold the traditional legalistic view,[7]
the actual impact of politics in judicial decision-making is still subject to
strong debate. Similarly, political scientists lack consensus on how judges’ political
attitudes affect their decisions, as evinced, for instance, by the different
approaches of the attitudinal, [8] the strategic[9] and the
connectionist models,[10]
amongst others.
In
this essay, it will be argued that the traditional assertion that judges are
‘above and beyond’ the political struggle is fundamentally flawed. Furthermore,
the great influence of politics in judicial decisions will be highlighted, while
also recognising the relevance of many other factors. In so arguing, special
attention will be paid, firstly, to the main approaches to empirical judicial
studies. Although none of them is able to provide a complete account of how
judges actually make decisions, they nevertheless constitute an extremely
useful guideline to discover, understand and critically analyse the numerous
factors that may influence the judicial decision-making process. For instance,
they offer key information about the judges’ policy preferences, their
background characteristics, institutional constraints, peer effects, their ‘managerial
pressures’, or even the judges’ relationship with their audiences, amongst many
others. Secondly, a brief account of how the nature and structure of the
various dissimilar judicial systems affect the political significance of courts
and judicial decisions in different legal systems will be provided, as a
preface to the study of three of the most recent and relevant episodes of clash
between judges and politicians worldwide. Lastly, these three cases concerning
judicial intervention in core political quandaries in different jurisdictions will
be examined, in order to study whether in deciding such prominent political
dilemmas the judges positioned themselves ‘above and beyond’, ‘below and
within’, or at some point in the middle of, the political struggle.
In
summary, this essay will critically discuss the traditional assertion that
judges limit themselves exclusively to applying the ‘positive law’, without being influenced by any ‘external
factor’, in the light of the
most recent and relevant empirical judicial studies; the comparative analysis
of different judicial systems; and the study of three of the most important
episodes of judicial intervention in core political questions worldwide. As a
conclusion, it will be argued that judges are not at all “impervious legal
technicians”, since there are many elements that affect the judicial
decision-making process, including political factors as one of the most
relevant.
II.
Mapping the judicial decision-making process.
Over
the last several decades, a growing body of descriptive accounts of judging has
tried to answer the difficult question of how judicial decisions are actually made (in contrast with legal
theorists’ concern about how judges should
make decisions), by recourse to a wide variety of empirical methods, which
includes large-scale quantitative analysis of decisions,[11] attitude surveys
(with and about judges), interviews with judges,[12] analysis of correspondence[13] and case simulations,[14] amongst others.
A
pioneering empirical study, based on the quantitative analysis of judicial
decisions, was conducted by Sheldon Goldman, between 1965 and 1971.[15] It was also one of the first works to examine in detail the
impact of judges’ attitudes and personal background on their decisions. The
research considered more than 2,000 non-unanimously decided cases of the United
States Courts of Appeals, and labelled them into different categories,
according to the topic of the decision.[16] In order to examine the impact of political attitudes in
judicial behaviour, judges were scored a numerical value,[17] depending on whether their decisions on each topic had
represented a politically liberal,
intermediate or conservative attitude.[18] Thus, by comparing the judges’ score on each topic, the
author examined whether or not there was a ‘politically determined’ trend in
their decisions. In addition, the study also tested seven background variables,
to determine their association with voting behaviour, namely: party affiliation,
age, religion, prior judicial experience, years on appeals court, public prosecutorial
acquaintance, and experience as a candidate before the electorate for public
office.[19] Hence, by comparing the score of the different judges in
each category, Goldman examined whether or not their voting behaviour on one
topic was associated with others, so that an attitudinal or background pattern
could be inferred. The results were extremely instructive. On balance, party
affiliation, age and religion appeared as the most relevant background
variables. At the aggregate level, though, none of these factors was
found to have an actual significant effect on judicial behaviour. Conversely, “voting
patterns…suggested the existence of interrelated political attitudes held by
judges”,[20]
which according to the author, allowed the interpretation of appeals court
judges’ decisions as “representing gradations of broadly defined political and
economic liberal-conservative attitudes”.[21]
In summary, Goldman concluded that “attitudes and values defined politically
rather than legally may be of prime importance in understanding appeals court
voting behaviour”.[22] Notwithstanding the valuable contribution
of this empirical study, it is necessary to avoid both the overestimation, as
well as the undue generalisation, of its conclusions. In this regard, it has
been argued that the empirical evidence is quite limited, since it does not
conclusively establish that judges are motivated solely (or even
overwhelmingly) by policy goals, but only shows that differences in judges’
position in the same cases may be better understood as a product of different
policy preferences.[23]
According to some commentators, the attitudinal model appears a very
straightforward and simple version of rational choice theory “because it
assumes that judges can maximize their utility simply by rendering whatever
decision most pleases them ideologically, without regard to other institutions
or considerations”.[24]
Finally, as regards the research described above, it could also be argued that
the conclusions inferred from Goldman’s empirical evidence cannot be
generalised and used to analyse all judicial
decision-making processes, since it was strictly circumscribed to study the
judicial behaviour of appellate court judges, and exclusively in the United
States. Despite these limitations, it would also be mistaken to overlook the
importance of Goldman’s study. Firstly, because even when it does not provide a
definite explanation of how judges actually make decisions, it nevertheless
clearly demonstrates that traditional legalistic views, which categorically
deny any influence of political or ideological attitudes in the judicial
decision-making process are fundamentally flawed. And secondly, because not
only did his study provide relevant evidence of the influence of judges’
beliefs and political attitudes in their decisions, but it also led the way to
further researches on the impact of political attitudes in judicial
decision-making, as well as to consider other possible variables, such as the
judges’ personal background, and to
develop alternative theoretical frameworks.
A prominent
example of this evolution of empirical judicial studies is the contextual approach adopted by Cameron
and Cummings, in their research on ‘Diversity and Judicial Decision-Making’.[25]
Adopting a social economy approach,
the authors focused on the peer effects in
collegial courts. Thus, they distinguished between the impact of judges’
personal background on their own decisions
(i.e. the ‘personal background effect’) and its impact on others (i.e. the
‘diversity effect’) from the peer effect,
which is “the separate impact of other judges’ actions on [one] judge”.[26]
In other words, the authors tested whether the interaction between judges with
different political attitudes and personal backgrounds, sitting in the same
panel, affected their deliberations and the collegiate decision-making process.[27]
The study examined more than 500 votes cast on almost 200 three-judge panels on
the U.S. Courts of Appeal, covering all affirmative action decisions from 1971
to 1999.[28]
Amongst the main findings, Cameron and Cummings suggested that racial diversity
had a strong peer effect on affirmative
action voting.[29]
According to the authors, “adding a single non-white member to a panel…increased
the probability of pro-affirmative action voting of white judges by about
fifteen percentage points”.[30]
The few available data of gender diversity also showed “a weak
relationship…between adding a female judge to a panel and the pro-affirmative
action voting of the male judges”.[31]
In these cases, they found “a direct ‘deliberation effect’ distinct from a peer
pressure effect, which magnifies the influence through feedback into the other
judges’ votes”.[32]
However, the research also suggested that ideological diversity did not
increase deliberation. Although it operated through peer effect, it did not
guarantee a higher degree of deliberation.[33] It had an ‘adverse’ peer effect, i.e. it
polarised even more the divergent opinions.[34]
Instead of adding deliberation, ‘ideological diversity’ in panel of judges
seemed to increase polarisation about their political attitudes.[35]
In any case, although ideological diversity did not appear to increase
deliberation, it nevertheless had an impact on judges’ decisions that is
important to consider when studying judicial decision-making. Finally, Cameron
and Cummings stressed in their conclusions the benefits of racial and gender
diversity in broadening the judges’ views and promoting deliberation in
collegial courts.[36]
Along the same line, Sir Terence Etherton has recently argued that “[t]he
analysis of social psychologists, and the examples of their empirical
research…highlight the importance on panels of appellate judges who, due to
their diverse experience, can bring to bear on a case, particularly a hard
case, a wider range of personal experience and judicial philosophies than would
otherwise be the case. They will thereby make it more likely that the decision,
and the reasoning which underpins it, will reflect the evolving values and
institutions of the community, and that relevant arguments are not overlooked
or brushed aside, and that insupportable preconceptions are challenged”.[37]
However, it is important to note that the argument for judicial diversity is
not necessarily dependent on demonstrating a contribution to the quality of
justice since it is not dependent on outcomes, but there are strong arguments
of equity and legitimacy to support it.[38]
A usual question that arises when analysing this kind of empirical studies is
whether or not their conclusions can be extended to other jurisdictions. In
this regard, it is important to note, following Thomas, that the fact that this
study was conducted in only one jurisdiction should not prevent the recognition
of its relevance, in particular when developing the selection criteria for
judicial appointment processes.[39]
Nevertheless, it could also be argued that this research is limited to
providing some useful, but partial, information of judicial decision-making.
While the model followed by Cameron and Cummings shows why it would be mistaken
to deny any ‘extra-legal’ influence on judges’ decisions, it also lacks a full explanation of how and why judges make
decisions.
Attempting
to overcome these limitations, some authors have
provided a more complete and sophisticated account of judicial behaviour, based
on the strategies designed by judges to master legal and institutional
constraints in order to further their policy preferences in the long-term. One
good example of this approach is the study conducted by Epstein and Knight, in The Choices Justices Make.[40]
The authors examined correspondence between U.S. Supreme Court justices, during
the 1970s and 1980s, focusing on the bargaining statements and the various
changes of position that occurred throughout the process of deciding landmark
cases.[41]
For instance, when examining the decision-making process of Craig v. Boren, the authors found that
the institutional rules of the Supreme Court had a strong impact on some
justices’ switch of position after
the conference that followed the oral hearing of the case, which could be
better explained by their ‘strategic’ approach. For example, Justice Brennan,
who was in charge of writing the opinion of the Court, initially favoured a
‘strict standard’ to analyse cases of laws discriminating on the basis of sex.
However, he designed a ‘midlevel scrutiny test’ in order to get his colleagues
support to arrive to a majority opinion. Although this ‘intermediate decision’
was not Brennan’s favourite option in terms of his ‘political attitudes’, it
was more suitable to change the existing precedent that established a ‘rational
basis test’, under which it would have been very hard to strike down laws
containing sex-based classifications. Hence, the authors considered that
Justice Brennan’s behaviour could be better understood by drawing more
attention to the ‘strategy’ he designed to change the existing precedent rather
than to his ‘political attitude’ regarding the topic. Similarly, they explained
the changes of other Justices’ opinion based on the strategies they designed to
pursue their objectives, rather than by looking at their ‘pure’ political
attitudes.[42]
Although it might be objected that this particular case examined by the authors
is an isolated episode, their research also provides empirical evidence that
justices’ strategic behaviour à la Craig is
not anomalous. Interestingly, Epstein and Knight found that “[i]n more than
half of all orally argued cases, the justices switch their votes, make changes
in their opinions to accommodate the suggestions of colleagues, and join
writings that do not necessarily reflect their sincere preferences”.[43]
According to the authors, those cases evince the strategic behaviour of the judges, who “realize that their ability
to achieve their goals depends on a consideration of the preferences of other
actors, the choices they expect others to make, and the institutional context
in which they act”.[44]
For this reason, they contend that the attitudinal model fails to provide a
complete account of judicial behaviour, since it overlooks the fact that while
judges “may be motivated primarily by their policy preferences…they plainly are
constrained in their attempts to implement those preferences”.[45]
However, it should be noted that the strategic approach is also based on the
controversial assumption that judges are motivated primarily by a desire to influence
public policy.[46]
Moreover, neither the attitudinal nor the strategic model accounts for the
different type of judges (eg Supreme Court justices, appellate court judges or
criminal court judges), who may have very diverse goals,[47]
and whose decisions may have quite a dissimilar impact on policymaking. As
noted by Baum, the strategic model also fails to consider the strong
difficulties in the task of predicting the long-term consequences of judicial
decisions, as well as in taking into account other simpler goals that judges
may legitimately have, such as gaining the approval of their audiences,[48]
or reducing caseload pressures.[49]
Finally, it could also be argued that since ordinarily judges do not gain much
benefit from advancing their favoured policies, and their individual decisions
may not have any substantial impact on the totality of the policy, it would be
quite unrealistic to analyse judges as purely strategic actors.[50]
Notwithstanding these observations, the strategic model throws
important light on many aspects of judicial behaviour that are not usually
explored by traditional legal theories, or even by other empirical judicial
studies. Moreover, it provides further evidence that political factors usually
have an important, though not exclusive, influence in judicial decisions.
Another
excellent example of the ‘post-attitudinal turn’ in judicial studies[51]
is the study offered by Feeley and Rubin. In Judicial Policy-Making and the Modern State,[52] the
authors centred their analysis in the American ‘Prison Reform Cases’, in order
to show how “[p]olicy making may be contrasted with interpretation, which is
the process by which public officials exercise power on the basis of a
preexisting legal source that they regard as authoritative”.[53]
This litigation saga, which took place in the United States between 1965 and
1990, is one of the most important examples of judicial policymaking. In fact,
the judicial orders mandating prison reforms in different states of the Union
were extremely comprehensive, and in some states the entire correctional system
was designed following judicial orders.[54]
Although Feeley and Rubin recognise that not all judicial decisions engage
policymaking (and that the Prison Reform cases represent quite an extreme
example in that regard) they claim that when judges do so “they invoke the text
to establish their control over the subject matter, and then rely on
nonauthoritative sources, and their own judgement, to generate a decision that
is predominantly guided by the perceived desirability of its results”.[55]
However, they argue that not only do traditional legal scholars fail to
acknowledge this contrast but also, and more importantly, “judges continue to
describe their policy-making role as an aspect of interpretation”.[56]
According to the authors, while legal and institutional constraints do not
prevent judicial policymaking, they may nevertheless create serious problems of
legitimacy for the judiciary. For instance, they argue that in the ‘Prison
Reform Cases’, the federal courts’ policymaking was contrary to the legal
principles of separation of powers, federalism and the rule of law.[57]
It is important to note that by arguing so, Feeley and Rubin do not criticise
the decisions of the federal courts. Conversely, they stress the need to
recognise that judicial policymaking is as necessary and legitimate as the
other branches’, and therefore it should be studied accordingly.[58]
As already
noted, the leading models of judicial behaviour provide important empirical
evidence against the traditional assertion that judges are not influenced by any ‘extra-legal’ factor.
Nevertheless, they have been subject to severe criticism due to their narrow
perspective to analyse judicial behaviour. For example, Baum argues that the
dominant models exaggerate the assumption that judges’ primary goals are
grounded in their political attitudes, and he suggests that they “lack of a
persuasive theory of judges’ motivations”.[59] Hence, he proposes to expand the scope of judicial studies
and provide alternative approaches.[60] In this vein, his study on Judges and their audiences aims at demonstrating that judges’
interest in approval from their audiences (which may include not only their
colleagues, but also the general public, other branches of government, legal
policy groups, the media, etc.) has a great explanatory value to understand how
judges actually make decisions.[61] Although this approach does not appear as the most
attractive explanation of the judicial decision-making process, it is important
to recall that it does not intend to provide a full account of judicial
behaviour, but only to offer an additional alternative approach in order to
broaden the analytical perspective. This view presupposes, then, that the
different approaches to judicial studies should not be regarded as competing or
mutually exclusive models, but as complementary perspectives, which partially
capture certain features of the extremely complex judicial decision-making
process.
Similarly,
the more recent connectionist models recognise
that a sophisticated understanding of judicial decision making “require[s] the
integration of a range of disparate, and potentially inconsistent, information
and objectives”.[62] In this regard, Robbennolt et al stress the importance of taking
into consideration that different judges may have very diverse goals. For
instance, they argue that while trial court judges are likely to focus on
issues of caseload management, or pre-trial settlement; appellate judges may
engage in more ‘policymaking’ quandaries; and elected judges are probably more
influenced by political concerns regarding their re-election.[63]
Moreover, it could be added that there are important differences in the judges’
goals depending on the structure of their respective judicial systems; [64]
the jurisdictional fragmentation;[65]
or on whether they are municipal judges or they sit in international courts;
amongst many other possible classifications. However, Robbennolt et al also argue that even one single judge
may face many different, and sometimes contradictory, objectives. In order to
illustrate their argument, the authors give as example the many conflicting
goals that a criminal judge may have to consider before deciding a motion to
suppress key evidence in a difficult (but not uncommon) criminal trial,[66]
and analyse this imaginary case using the theoretical tools provided by the connectionist model of constraint
satisfaction. As a result, they
conclude that this model may provide a better explanation of the extremely
complex judicial decision-making process than researches focused on only one
main factor, because it offers “a set of ‘goal management principles’ that can
describe the interrelations among the disparate goals and actions pursued by
legal decision makers”.[67]
In particular, it examines the extent to which specific goals can be satisfied
by available choices (‘principle of equifinality’), how some actions are likely
to fulfil goals better than others (‘principle of best fit’) or fulfil numerous
goals at once (‘principle of multifinality’), and how some goals may inevitably
conflict without allowing their concurrent achievement (‘principle of goal
incompatibility’).[68]
According to the authors, this model overcomes the simplicity of other
approaches, and provides a more accurate and realistic analysis of the judicial
decision-making process. Nevertheless, even when it offers a wider perspective
of judicial behaviour, it could be argued that it fails to explain how judges
actually balance all these factors when making a decision. In any case, it
should also be recognised that this alternative model provides important
further evidence that judges do not pursue a single objective when making
decisions, and that there are many ‘extra-legal’ factors that affect the
judicial decision-making process.
All things
considered then, it would be fair to conclude that although the most
influential empirical judicial studies are not still able to offer a definite
and complete explanation of how judges actually make decisions, they
nevertheless provide clear evidence that judges are far from being “impervious legal technicians”.
These studies clearly show how the numerous factors that influence judicial
behaviour prevent any attempt to place the judiciary “above and beyond the
political struggle”. However, a final qualification needs to be made. It is
important to note that most of the empirical studies described above have been
conducted in the United States. Therefore, before proceeding with the next
section’s case-studies on clashes between judges and politicians in different
jurisdictions, it seems appropriate to briefly
explore how the nature and structure of dissimilar judicial systems and the
role of judges in different legal systems may also influence the political
significance of courts and judicial decisions.
Firstly, it is
critical to distinguish whether the courts’ jurisdiction is concentrated (i.e.
unitary systems, such as the judicial system of England and Wales) or separated
into different hierarchical structures (i.e. fragmented systems, such as the
Italian judicial system), which includes ‘special courts’ (eg administrative
courts or/and constitutional courts, separated from the ‘ordinary’ civil and
criminal courts). As explained by Guarnieri
and Pederzoli, “the more far-reaching the scope of judicial decisions is the
more politically significant a judge’s role is likely to be”.[69] Therefore, “[t]he
fragmentation of the judicial system can…be seen as a means of politically
neutralizing ordinary courts while preserving their institutional
independence”.[70] Secondly, the
internal dynamics, i.e. the interaction between the various actors of the
‘judicial pyramid’, also affects the significance and powers of courts in the
different judicial systems. According to Guarnieri and Pederzoli, the
‘hierarchical system’, usually adopted in countries with bureaucratic
judiciaries (eg Italy, Spain, France) enables appellate and supreme courts to
exercise a higher degree of control over the lower courts than the ‘co-ordinate
system’, which is normally related to professional judiciaries (eg United
States, and England and Wales).[71]
In the authors’ opinion, although systems with a ‘hierarchical model’ may
provide more coherence amongst the different judges’ decisions, they also reduce
the political significance of ordinary courts, which in ‘co-ordinate’ systems
is usually higher.[72] Another important factor to
consider when studying the influence of politics in different judicial systems
is the openness of courts to individual and group litigants, and their
perception about the relative utility of courts.[73]
In this regard, Guarnieri and
Pederzoli argue, on the one hand, that “[t]he lower the threshold of access,
especially for interest groups, the stronger is the relative [political] importance
of courts”.[74] On the other hand,
they also suggest that “the existence of quasi-judicial institutions which can
effectively process conflicts may foster court avoidance and thus
‘dejudicialization’ in some policy areas”.[75] In relation to the
citizens’ perception of the judiciary’s usefulness as “a channel for the
articulation of political demands”, it is also important to take into account
the different judicial prerogatives as regards the review of legislation. For
instance, it could be argued that systems allowing diffuse review of legislation confer more power (and, consequently,
more ‘political relevance’) to ordinary courts than centralised systems, where constitutionality issues are entrusted
to a single separate court. Similarly, the differences between concrete and abstract review of legislation, and the determination of the actors
allowed to trigger this review (i.e. whether there is a direct or indirect appeal
to judicial review of legislation), may also affect the relationship between
judges and politicians in different jurisdictions.[76] Finally, it is
important to consider how the different role assigned to other key actors of
the judicial system, such as lawyers and public prosecutors, may also affect the
political significance of courts and judicial decisions.[77]
Firstly, as regard the latter, the civil and common law worlds present
important differences, not only on the prosecutors’ powers, but also concerning
their relationship with the judges, the police and the executive branch of
government.[78]
As explained by Guarnieri and
Pederzoli, “the more autonomy prosecutors enjoy from other political
institutions the greater the political significance of the judicial system”.[79] In this regard,
the Berlusconi case, analysed below,
will provide an excellent example of how the independent status of prosecutors
in Italy increased their political significance. Secondly, the role of lawyers
in the judicial systems also varies from inquisitorial
to adversarial systems, where
parties to the dispute may have more influence in the judicial decision, not
only in criminal law cases but also as regards civil litigation.[80] The Binyam case, which will also be analysed below, provides a clear
illustration of how litigant lawyers in an adversarial
system (in that case, England and Wales) may affect the judicial
decision-making process, even in ‘politically sensible’ cases.
III.
Judicialization of politics and politicisation of the
judiciary.
The
judicial studies accounted above not only provide empirical evidence of the
range of factors influencing judicial decisions, but they also show that “[t]he
interrelationship between judicial systems, law, and politics is dynamic and
constantly changing”.[81]
As noted by Domingo, “[t]he degree to which courts take part in policy or law
making, or the extent to which political and social disputes can be resolved
through legal recourse, varies greatly from country to country, and also over
time”. [82]
Therefore, it seems appropriate to analyse recent cases concerning judicial
intervention in core political quandaries from different judicial systems, in
order to put the study of the judges’ role in political struggles in context.
An
extremely useful and rich case study to begin with is the U.S. Supreme Court’s
decision in Bush v. Gore, which
not only generated significant debate as to the impact of the judges’
political attitudes in the final judgement, but also with regard to their
partisan affiliation.[83]
The case arose due to the possible miscalculation in the counting of votes in
Florida, whose final result would determine the outcome of the U.S. presidential election of 2000. Since
the margin of victory of the republican candidate, George W. Bush, over the
democrat one, Al Gore, was minimal (only 327 votes), the Florida Supreme Court
agreed and ordered a recount of the so called ‘undervotes’, i.e. the ballots in
which machine counts had not detected any choice for President.[84] However, the following day (December 9), the U.S. Supreme
Court issued a stay of the Florida Court’s ruling, arguing that “[t]he counting
of votes…threaten[s] irreparable harm to petitioner [George Bush], and to the
country, by casting a cloud upon what he claims to be the legitimacy of his
election.”[85]
Finally, on December 12, the Court issued the final decision, reversing the
Supreme Court of Florida’s judgment of December 8, on the grounds that the recount it had ordered violated the Equal Protection
Clause of the Fourteenth Amendment.[86]
From a traditional legalistic point of view, some
commentators argued that the Court limited itself to applying the law, without being influenced by other
factors. [87]
However, the weakness of the legal arguments used by the judges does not
support this thesis. Moreover, as suggested by Dworkin, it is “difficult to
find a respectable explanation of why all and only the conservatives voted to
end the election in this way”.[88] In sharp contrast to the
traditional legalistic views, other theories, such as legal realism and the
critical legal studies, as well as many approaches from the social sciences,
would argue that political attitudes played a key role in the decision-making,
shaping the way judges interpreted the law. However, as pointed out both by Dworkin
and Balkin, the conservative judges’ decision did not reflect their political
opinion regarding issues of federalism, judicial activism, the extension of the
equal protection clause, or any other constitutional question, but quite the
opposite. Consequently, these authors discard the hypothesis of the ideological
attitudes’ effect on the decision, and suggest instead that “this is a more
overt collapse of the boundary between law and politics…”[89] A final alternative
analysis, following a pragmatist approach, would explain Bush v. Gore considering the possible consequences of the decision
for the future of the country, arguing that the Court might have chosen values
such as security and legal certainty over justice. [90] However, it is certainly
hard to see a plausible alternative to the crude partisan explanation of the
case, which positions the Court ‘below
and within’, rather than ‘above and beyond’, the political struggle. Still, as it flows from
the myriad of views described above, there are many factors that could have
influenced the justices’ decision in Bush
v. Gore, and therefore, neither a pure legalistic nor a ‘crude partisan’
approach seems to provide a complete explanation of the case.
At this point, it is important to highlight that
the clash between judges and politicians is a worldwide phenomenon that affects
not only states with checks and balances systems, such as the U.S., but also
states enjoying a higher degree of political centralisation, such as the U.K.,
where the constitutional system is grounded on the doctrine of Parliamentary
sovereignty.[91] In fact, the U.K. has
recently provided a good example of high profile conflict between judges and
politicians, in the ‘Binyam Mohamed affair’. The case arose from the detention
by U.S. authorities of Binyam Mohamed (BM), an Ethiopian national who was
seeking political asylum in the U.K. since 1994, and had been given temporary
leave to remain as a U.K. resident. In 2001, BM travelled to Afghanistan, and
then moved to Pakistan, where he was arrested in April 2002, and finally sent
to Guantanamo Bay two years later, where he was charged with terrorist
offences.
The British stage of this affair began in 2007, when BM sought disclosure of classified
documents from the U.K.’s Government, which might support his defence that
confessions obtained under torture by the U.S. Government were inadmissible as
evidence against him. Since the British Foreign Secretary refused to disclose
such information, BM applied for judicial review, relying on the ‘Norwich Pharmacal
principle’,[92] according to which a
third party who has been involved in allegedly unlawful action by somebody else
should disclose relevant information in his possession to the victim. In its
first open judgement, the Divisional Court held that the U.K.’s Security
Service and Secret Intelligence Service had facilitated arguable wrongdoing and
therefore, an order for disclosure under the ‘Norwich Pharmacal principle’
would be made, albeit subject to any public interest immunity claim by the
Foreign Secretary.[93] The information sought
by BM was subsequently made available in the habeas corpus proceedings opened in the U.S., leading to his
release from Guantanamo and later return to the U.K. in 2009.[94] However, an incidental
issue concerning the final drafting of the written judgement remained open, and
would generate an unprecedented clash between judges and politicians.
The seed of the conflict was the Foreign
Secretary’s opposition to the restoration of seven paragraphs that had been
redacted from the first open judgment in Binyam,
which summarised U.S. reports concerning BM’s treatment by U.S. officials, in
the knowledge of which the U.K. had continued to supply information for use in
the interrogations. The paragraphs said, inter
alia, that “the treatment reported…could readily be contended to be at the
very least cruel, inhuman and degrading treatment of BM by the United States
authorities”.[95] The Foreign Secretary’s
arguments were set out in three public interest immunity certificates, which
asserted that the publication of the redacted paragraphs would violate the
general control principle over intelligence arrangements and, moreover, that in
the event of disclosure the U.S. would re-evaluate its intelligence ‘special’
sharing relationship with the U.K., which would seriously prejudice the
national security. Since during the Bush administration there was strong
evidence supporting these arguments, the Divisional Court held in its fourth
open judgment that the redacted paragraphs would not be restored. However,
Obama’s assumption of the U.S. presidential office in January 2009 would
radically change the situation. In fact, evidence produced before the Court
made clear that President Obama had expressed very different views on torture,
interrogation techniques and transparency from those of the Bush
administration’s officials. Consequently, the Divisional Court held in its
fifth open judgement, in October 2009, that the public interest in the
disclosure of the paragraphs outweighed the national security risk involved in
the case.
[96] However, the Foreign
Secretary raised further security concerns against the draft of this judgment,
which were dismissed by the Court,[97] though the redacted
paragraphs would not be published yet due to the Government’s appeal.
At the appellate stage, Jonathan Sumption QC,
representing the Foreign Secretary, vehemently attacked the Divisional Court’s
judges, affirming that their attitude had been irresponsible, unnecessary and
“profoundly damaging to the interests of this country”.[98] Although the Court of
Appeal affirmed that the Divisional Court had given insufficient weight to the
PII certificates, it nevertheless dismissed the appeal. [99] However, the conflict
was not over, and it would have a further twist. After distributing its draft
judgment to the parties, the Court of Appeal received some suggestions by
Sumption QC, and made further changes on a paragraph containing strong
criticism of the U.K.’s Security Service. However, counsel for BM (Dinah Rose
QC) had not received the letter in time to register objections. When Dinah Rose
got Sumption’s letter (one day before the second draft judgment would be made
public) she handed it to the press, leaking therefore many details of the
conflict,[100] including the
controversial paragraph [168], which read, inter
alia, that “…some security services officials appear to have a dubious
record relating to actual involvement, and frankness about any such
involvement, with the mistreatment of Mr. Mohamed…”[101] Finally, on February 26,
the Court of Appeal wrote a third version of the contested paragraph, restoring
some criticisms but explaining their limits. More importantly, it waived the
confidentiality understanding on which the first draft judgment had been
circulated “in order to dispel the damaging myth or lingering public perception
that a minister or his counsel had been permitted to interfere with the
judicial process”.[102]
Although there was some ‘bad taste’ surrounding
this conflict, [103] the Court of Appeal
tried to overcome the controversially political tone of the case with a
remarkable final judgment that honoured the principle of open justice and
judicial independence. However, it is difficult to see how the judges
intervening in the case could have positioned themselves “above and beyond the political struggle”, since the whole
satellite litigation in Binyam as to
the drafting, redacting, re-drafting and publication of the controversial
paragraphs inherently contained more political than strictly legal features.
Furthermore, not only did the ‘Binyam affair’ concern a clash between judges
and politicians, but also arguably the judicial appointment process. In fact,
only a few weeks after the final judgment, a new member of the U.K. Supreme
Court was announced (Lord Dyson), [104] after one of the allegedly
main candidates had suddenly withdrawn his application in December 2009.
Interestingly, the retired candidate was Sumption QC, who from being the
favourite for the post became a reject, due to the opposition from some judges
of both the Court of Appeal and the Supreme Court.[105] His appointment to the Supreme Court would have to wait
until this year, when due to the retirement of Lord Saville and the imminent
departure of Lord Collins, it was announced that Lord Justice Wilson and
Jonathan Sumption QC would fill those vacancies.[106] From the above analysis,
it is clear that many ‘non legal’ factors could have influenced the different
decisions in Binyam, which positioned
judges closer to the middle of, rather than above and beyond, the ‘political
struggle’.
A
final illustration of a judicialized conflict with blurred boundaries between
law and politics is the ‘Berlusconi case’ in Italy, where unlike the U.K.,
there is a long history of clashes and collusions between judges[107]
and politicians. The tension, however, would not reach its peak until the early
1990s, when the extremely high profile of the Mani pulite (clean hands) investigations of corruption produced what
has been termed a ‘revolution by the judges’, which led to the collapse of the
hitherto dominant Christian Democracy party and its allies, and the beginning
of the Second Republic.[108]
In this context, the judiciary gained great popularity among the public,[109]
and the degree of ‘politicisation’ of judges was so unusually high that even
some of them resigned from the judiciary and started a political career.[110]
In turn, some politicians reacted against the increasing judicial activism in
the political arena, and attempted to de-legitimise the judiciary,[111]
by denouncing conspiracies[112]
and generating constant confrontations. Unsurprisingly, Silvio Berlusconi
played a ‘leading role’ in these attacks.
In
this historical context, the so-called ‘Berlusconi Case’ arose, as an extreme
example of a long-term conflict between the judiciary and the political power
in Italy. The case concerns a legal (and political) battle to pass immunity
laws to the highest political offices, which were allegedly orientated to
override the judicial investigations opened against Berlusconi for corruption[113]
and, more recently, for juvenile prostitution and abuse of power.[114]
This conflict began in 2003, after the passing of Law Nº 140 (‘lodo Schifani’),[115]
which provided for an automatic, general and not-limited-in-time suspension of
any criminal proceedings against the highest political offices in Italy. The
Italian Constitutional Court declared this law partially unconstitutional in
2004.[116]
However, the political majority insisted with a new immunity law in 2008 (‘lodo Alfano’),[117] which was widely criticized as a copy
of the previous one. Thus, in October 2009 the Italian Constitutional annulled
the law once again.[118]
Nevertheless, not only did Berlusconi repeat his furious attack against the
judiciary, but he also promoted a new law to stop judicial investigations on
him. The third attempt was made through the ‘legitimate impediment law’, passed
in 2010, which provided a suspension of court proceedings for up to 18 months
in the case of members of the government. However, in a new episode of the
conflict, the Constitutional Court declared this law partially
unconstitutional, stating that Berlusconi could not automatically invoke a
“legitimate impediment” claim exempting him and cabinet ministers from
attending trials in progress because of their official duties.[119]
The
‘Berlusconi case’ is an extreme example of blurred boundaries between law and
politics, which confirms that judges can hardly position themselves ‘above and
beyond the political struggle’. However, it also demonstrates that even in the
most ‘politicised’ conflicts,
political attitudes are not an exclusive factor affecting judicial decisions.
For instance, it could be argued that the legal arguments based on the Italian
Constitution were key factors in the decisions of the Constitutional Court. In
fact, as distinct from Bush v. Gore,
Italian scholars and commentators almost unanimously agreed with the
Constitutional Court that the contested immunity laws were contrary to the
Italian Constitution.[120]
Hence, neither political attitudes nor legal arguments were the exclusive
reasons behind this case, but only some amongst many others.
IV.
Conclusion.
There
is great uncertainly when trying to explain how and why judges make decisions.
Nevertheless, judicial studies provide enormous help to overcome the
traditional dogmatic and simplistic views of judicial behaviour, which prevent
more realistic and accurate explanations. As described in the introduction,
there are still some traditional legal approaches claiming that it is possible
to predict any judicial decision, by simply applying analogical reasoning to the
legal precedents and statutes; and denying the effect of any ‘non-legal’ factor
in the judicial decision-making process. Therefore, even when the empirical
judicial studies analysed in this essay did not provide a complete and definite
answer about the factors that affect judicial behaviour, they nevertheless
taught important lesson on the complexity of the process, which evinced the
unsuitability of the traditional legalistic models. The first conclusion of this
essay is, then, that simplistic explanations of judicial behaviour will never
be able to provide a successful account of the judicial decision-making
process.
The
main argument of this essay was that the traditional characterisation of judges
as “a unique body of impervious legal technicians above and beyond the
political struggle” was fundamentally flawed. In arguing so, a critical account
of the most recent and relevant empirical models of judicial behaviour was
given, in order to show the myriad of factors that may influence judicial
decisions. As already noted, while none of these studies provides definite
answers, each of them throws important light on some aspects of the extremely
complex process of judicial decision-making, and more importantly, they clearly
demonstrate that judges are affected by many ‘extra-legal’ factors. Hence, it
is completely misguided to consider judges as “impervious legal technicians”.
In addition, the comparative analysis of the nature and structure of different
judicial systems aimed at showing that it is not possible to reach universal
answers on this topic, since the factors affecting judicial behaviour also
depend on the special characteristics of each jurisdiction.
Finally,
the study of three cases concerning judicial intervention in core political
quandaries in different jurisdictions aimed at demonstrating the increasing “judicialization
of politics and politicisation of the judiciary”, a phenomenon that prevents
any positioning of judges “above and beyond the political struggle”.
Nevertheless, these cases also showed that neither political attitudes nor
legal arguments were the exclusive reasons behind the respective judicial
decisions, but only some amongst many others.
To
conclude, judges in modern democracies are neither “a unique body of impervious
legal technicians above and beyond the political struggle” nor a ‘political
party’. Therefore, it would also be mistaken to overvalue the influence of
politics in the judicial decision-making process. As the cases commented in the
last section clearly show, there are many factors influencing judicial
decisions, which allow multiple and varied interpretations. This lack of
certainty regarding the actual factors affecting the judicial behaviour should
not, however, lead to an underestimation of the relevance of the various
empirical studies and legal theories on the subject, which provide extremely
useful tools to analyse judicial decisions, and to better understand how judges
actually make decisions.
[1] Ran Hirschl, ‘The Judicialization of Mega-Politics and
the Rise of Political Courts’ (2008) 11 Annual Review of Political Science 1;
See also, Cheryl Thomas (ed), The Power
of Judges: A Comparative Study of Courts and Democracy, by Guarnieri, and
Pederzoli (OUP 2002) 1; Robert Stevens, The
English Judges: Their Role in the Changing Constitution (Hart Publishing
2002)
[2] Judith
Resnik ‘Judicial Selection and Democratic Theory: Demand, Supply, and Life
tenure’ (2005) 26 Cardozo Law Review 579; Cheryl Thomas, Judicial
Diversity in the United Kingdom and Other Jurisdictions: A Review of Research,
Policy and Practices (Commission for Judicial Appointments 2005); Brenda
Hale, ‘The Appointment and Removal of Judges: Independence and Diversity’
(2006) Speech to the International Association of Women Judges, 8th biennial
conference, 3–7 May, Sydney, Australia; Kate Malleson, ‘Creating a judicial
appointments commission: which model works best?’ (2004) Public Law 102; Kate
Malleson, ‘Rethinking the Merit Principle in Judicial Selection’ (2006) 33 Journal
of Law and Society (1) 126.
[4]
Malcolm Feeley and Edward Rubin, Judicial
Policy-Making and the Modern State (Cambridge UP 1999) 2.
[5] Marin Shapiro, Law and
politics in the Supreme Court: new approaches to Political Jurisprudence
(Free Press 1964) 21.
[6] Anne Bloom, ‘The "Post-Attitudinal Moment":
Judicial Policymaking through the Lens of New Institutionalism’ (2001) 35 Laws
& Society Review 1, 219.
[8]
Sheldon Goldman, ‘Voting Behavior on the United States Courts of Appeal
Revisited’ (1975) 69 American Political Science Review 491.
[9] Lee
Epstein and Jack Knight, The Choices
Justices Make (Congressional Quarterly Press 1997).
[10] Jennifer Robbennolt, Robert MacCoun and John Darley,
‘Multiple Constraint Satisfaction in Judging’, in Klein and Mitchell (eds), The Psychology of Judicial Decision-Making
(OUP 2010).
[11]
Goldman (n 8); Charles
Cameron and Craig Cummings, ‘Diversity and Judicial Decision-Making: Evidence
from Affirmative Action Cases in the Federal Courts of Appeal 1971-1999’ (2003)
Paper Presented at the 2003 Meeting of the Midwest Political Science
Association.
[12]
Jessica Jacobson and Mike Hough, Mitigation:
The Role of Personal Factors in Sentencing (Prison Reform Trust 2007).
[13] Epstein and Knight (n
9); Feeley and Rubin (n 4).
[14] Austin
Lovegrove, ‘Public Opinion, Sentencing and Lenience: An Empirical Study
Involving Judges Consulting the Community’ (2007) Criminal Law Review 769.
[16] ibid 491-493.
[17] ibid 491.
[18] It is important to
stress that, in order to label a judge as liberal, conservative or intermediate
regarding one topic, at least five of his decisions on that particular issue
had to be calculated and analysed.
[20] ibid 505.
[21] ibid.
[22] ibid 495.
[24] Frank Cross,
‘Political Science and the new legal realism: a case of unfortunate
interdisciplinary ignorance’ (1997) 92 Northwestern University Law Review 251,
265; Baum (n 7) 5.
[25] Cameron and Cummings
(n 11).
[26] ibid 4.
[27] ibid 1.
[28] ibid 4.
[29] ibid 18.
[30] ibid 19.
[31] ibid.
[32] ibid 25.
[33] ibid 26.
[34] In this vein, a
recent “experimental investigation involving two deliberative exercises, one
among self-identified liberals and another among self-identified conservatives,
showed that participants' views became more extreme after deliberation”. See
David Schkade, Cass Sunstein and Reid Hastie, ‘When deliberation produces
extremism’ (2010) 22 Critical Review (2) 227.
[35] Cameron and Cummings
(n 11) 20.
[36] ibid 28.
[37] Terence Etherton,
‘Liberty, the archetype and diversity: a philosophy of judging’, (2010) Public
Law 727, 746. See also Brenda Hale, ‘Equality and the Judiciary: Why Should We
Want More Women Judges? (2001) Public Law 489.
[38] Kate Malleson,
‘Justifying gender equality on the bench: why difference won't do’ (2003) 11
Feminist Legal Studies 1. According to this author, “[o]ne can hope that a more
diverse judiciary may include a wider range of skills and experience which will
enhance the quality of its decision-making in a general sense. But the primary
rationale for wishing to appoint judges from more diverse backgrounds is to
strengthen the legitimacy of the judiciary. Irrespective of whether or not the
inclusion on the bench of members of under-represented groups such as
solicitors, women, minority lawyers and disabled lawyers will have a
significant effect on the decision-making of the courts, the corrosive impact
of their absence on the legitimacy of the judiciary is now too great to ignore”.
See Malleson, ‘Creating a judicial appointments
commission: which model works best?’ (n 2) 106. Along the same line, Etherton argues that the composition of the judiciary,
and in particular its diversity, are important in securing and maintaining
their legitimacy for two reasons. Firstly, because “the composition of the
judiciary can then be seen to reflect the very values of which they are the
guardians –human rights and equality inherent in a liberal democracy…And
secondly, because a judiciary which is not reflective of the different elements
within the community, particularly minority groups, is less likely to command
their respect”. See, Etherton
(n 37) 743-744.
[39] Cheryl Thomas, Judicial
Diversity in the United Kingdom and Other Jurisdictions (n 2) 60. See also Kate Malleson,
‘Promoting Diversity in the Judiciary: Reforming the Judicial Appointments
Process’, in Philip. Thomas (ed), Discriminating
Lawyers (Cavendish Press 2000).
[40] Epstein and Knight (n
9).
[41] Bloom (n 6) 221.
[42] Epstein and Knight (n
9) 9.
[43] ibid.
[44] ibid 10.
[45] Bloom (n 6) 220.
[47]
Robbennolt, MacCoun and Darley (n 10).
[48]
Baum (n 7) 15-16.
[49]
Robbennolt, MacCoun and Darley (n 10) 29.
[51] i.e., the increasing
trend to “look much further than judicial attitudes…[and] examine how
institutional structures shape and constrain judicial policymaking” See Bloom
(n 6) 220.
[52]
Feeley and Rubin (n 4).
[53]
ibid 5.
[55]
ibid.
[56]
ibid 11.
[57]
ibid 18.
[58]
ibid 22.
[62]
Robbennolt, MacCoun and Darley (n 10) 33.
[66]
Robbennolt, MacCoun and Darley (n 10) 36.
[77] See Alan
Paterson, Lawyers and the Public Good
(The Hamlyn Lectures) (CUP, 2012)
[81] Pilar Domingo, ‘Judicialization of politics or
politicization of the judiciary? Recent trends in Latin America’ (2004) 11
Democratization 104, 106.
[83]
Ronald Dworkin, ‘A Badly Flawed Election’ The
New York Review of Books (New York, 11 January 2001) 3; Jack Balkin, ‘Bush
v. Gore and the Boundary Between Law and Politics’ (2001) 110 The Yale Law
Journal 1407, 1408.
[87]
Charles Fried, ‘A Badly Flawed Election: An Exchange’ The New York Review of Books (New York, 22 February 2001)
[89]
ibid.
[90]
Richard Posner, ‘Bush v. Gore as Pragmatic Adjudication’, in Ronald Dworkin
(ed), A badly Flawed Election: Debating
Bush v. Gore, the Supreme Court, and American Democracy (New Press 2002)
201; Agustin Gordillo, An Introduction to
Law (Esperia Publications 2003), 138.
[93] R (Binyam
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin).
[94] Richard Norton-Taylor, Peter Walker and Robert Booth,
‘Binyam Mohamed returns to Britain after Guantánamo ordeal’ The Guardian (London, 23 February 2009)
<http://www.guardian.co.uk/ uk/2009/feb/23/binyam-mohamed-guantanamo-plane-lands>
accessed 6 July 2011.
[95] R (Binyam
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, 32.
[96] R (Binyam
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 2549 (Admin).
[97] ibid.
[98] John
Aston and Cathy Gordon, ‘Minister's lawyers attack ‘torture’ case judges’ The Independent (London, 14 December
2009)
<http://www.independent.co.uk/news/uk/home-news/ministers-lawyers-attack-torture-case-judges-1840649.html>
accessed 6 July 2011; Richard
Norton-Taylor, ‘Judges irresponsible for wanting CIA torture evidence
disclosed, court told’ The Guardian
(London, 14 December 2009)
<http://www.guardian.co.uk/world/2009/dec/14/binyam-mohamed-cia-toture-appeal>
accessed
6 July 2011.
[100] Katy
Dowell, ‘Dinah Rose QC apologises to court for handing Sumption letter to
press’ The Lawyer (London, 11
February 2010) <http://www.thelawyer.com/1003432.article> accessed 6 July
2011.
[101] ibid.
[102] R (Binyam
Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158.
[103] Frances Gibb, ‘Analysis:
victory for common sense and open justice’ The
Sunday Times (London, 26 February 2010)
<http://business.timesonline.co.uk/tol/business/law/article7042626.ece> accessed
6 July 2011.
[104] Margaret
Taylor, ‘Dyson LJ named as final Supreme Court justice’ The Lawyer (London, 23 March 2010)
<http://www.thelawyer.com/dyson-lj-named-as-final-supreme-court-justice/1003889.article>
accessed 6 July 2011.
[105] Frances
Gibb, ‘Supreme ambition, jealousy and outrage’ The Sunday Times (London, 4 February 2010)
<http://business.timesonline.co.uk/tol/business/law/article7013960.ece> accessed
6 July 2011.
[106]
However, Sumption QC has obtained permission to delay his ascent to the Supreme
Court until after the Berezovsky v
Abramovich case is heard, in order to fulfil his litigation work for Roman
Abramovitch. See Owen Bowcott, ‘Supreme court judges appointed’ The Guardian (London, 4 May 2011) <http://www.guardian.co.uk/law/2011/may/04/supreme-court-judges-wilson-sumption>
accessed
14 September 2011.
[107]
In Italian, the term giudice (ie
judge) includes investigating magistrates and judges of the bench as well as
public prosecutors. Donatella Della Porta, ‘A judges’ revolution? Political
corruption and the judiciary in Italy’ (2001) 39 European Journal of Political
Research 1, 11.
[108]
ibid 4.
[110]
eg Antoinio Di Pietro and Luigi De Magistris.
[111]
Della Porta (n 107) 11.
[112]
ibid 10.
[113]
John Hooper, ‘Silvio Berlusconi to face charges as early as next week,
prosecutors say’ The Guardian
(London, 2 February 2011)
<http://www.guardian.co.uk/world/2011/feb/02/silvio-berlusconi-sex-prosecution>
accessed 6 July 2011.
[114]
John Hooper, ‘Silvio Berlusconi to face charges as early as next week,
prosecutors say’ The Guardian
(London, 2 February 2011)
<http://www.guardian.co.uk/world/2011/feb/02/silvio-berlusconi-sex-prosecution>
accessed 6 July 2011; John Hooper, ‘David Mills guilty of taking bribe linked
to Berlusconi trials’ The Guardian
(London, 17 February 2009) <http://www.guardian.co.uk/politics/2009/feb/17/david-mills-silvio-berlusconi-trial>
accessed 6 July 2011.
[115]
‘Lodo’ because it was a compromise
reached by the political majority and the opposition; and ‘Schifani’, after its principal promoter, Renato Schifani, who at
that time was President of the Italian Senate. See Giuseppe Martinico, ‘The
Berlusconi Judgment: A Brief Case Note on the Decision of the Italian
Constitutional Court (Note 262/2009)’ (2010) 16 European Public Law (2) 231.
[116]
Italian Constitutional Court, Judgment 24/2004.
[117]
In this case, it was named after Berlusconi's Minister of Justice Angelino
Alfano. See Martinico (n 115)
[118]
Italian Constitutional Court, Judgment 292/2009.
[119]
John Hooper, ‘Italian court waters down Berlusconi immunity law’ The Guardian (London, 13 January 2011)
<http://www.guardian.co.uk/world/2011/jan/13/italian-court-berlusconi-immunity-law>
accessed 6 July 2011.
[120]
Martinico (n 115).
