Opinion

Judges Need to Know Their Place

When judges behave like politicians, they weaken the judiciary.

Supreme Court The Hague Netherlands
Seat of the Supreme Court of the Netherlands in The Hague, February 3, 2016 (Rijksvastgoedbedrijf/Bas Kijzers)

European judges have discovered they can compel politicians to take action against climate change.

France’s Council of State has given the government of Emmanuel Macron an April 2022 deadline (one month before the election) to ensure the country will meet its target of reducing greenhouse gas emissions 40 percent by 2030 compared to 1990.

Germany’s Constitutional Court issued a similar ruling in April and gave the government an end-of-year deadline to update its policy.

A Dutch court has gone further, ordering Shell, the Anglo-Dutch oil giant, to reduce not just its own carbon dioxide emissions by 45 percent but those of its customers and suppliers as well.

It’s like we’re living in a kritocracy.

Flimsy grounds

The Dutch ruling was based not on law or even regulation, but on what the court described as “unwritten standards of care” and the “generally accepted” premise “that companies must respect human rights.”

I’m not a legal expert, but those sound like flimsy grounds for such a far-reaching decision.

Shell is appealing the verdict, but the Netherlands’ highest court in an earlier case also cited “human rights” and “scientific consensus” as grounds to force the government to make environmental policy.

The European Court of Human Rights is leaning in the same direction. It has fast-tracked a case brought by Portuguese youth activists calling for faster reductions in greenhouse gas emissions as well as a ban on the export of fossil fuels. If the court finds in their favor, it may sound the death knell for the European oil and gas industry.

The European Court of Human Rights is separate from the EU and has jurisdiction over 47 countries. Although some, in particular Italy, Russia, Turkey and Ukraine, have ignored many of its rulings.

Judicial activism

Judicial activism isn’t limited to change change. Germany’s Constitutional Court has challenged the legality of the European Central Bank’s debt-buying program. Spanish courts have criminalized Catalan separatism by forbidding an independence referendum and convicting some the region’s leading politicians as well as civil society leaders to between nine and thirteen years in prison for “sedition” against the state. (They were pardoned by Spain’s Socialist government this year.)

In America, judges have made law on everything from abortion to collective bargaining rights to gun control to marriage.

Politicians share the blame for refusing to legislate on controversial issues. Spain’s should take the reference to the “indissoluble” unity of the country, on which the entire legal argument against Catalan separatism is based, out of the Constitution. America’s should have passed a law making it possible for same-sex couples to marry rather than allow the Supreme Court to “discover” a right to marriage equality in their 200 year-old Constitution.

But judges are to blame too for playing politics.

Risks

This has risks:

  1. It stifles democracy. The Spanish government may rewrite the sedition law under which Catalonia’s separatists were convicted, but when a final court of appeal cites something as vague as “human rights” or “scientific consensus”, it leaves no democratic recourse.
  2. Faith in the judiciary is undermined when those on the losing side of a decision see it as arbitrary or partisan. That’s dangerous for an institution that relies on others to enforce its will.
  3. Courts become susceptible to political interference. If judges act like politicians, the judiciary becomes political and politicians will try to influence it. The judicial overreach of far-right governments in Hungary and Poland, which felt constrained by liberal judges, should be a cautionary tale.

Leave politics to the politicians.

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