Eavesdropping on the Conversation

By Tushnet, Mark | Judicature, November/December 2004 | Go to article overview
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Eavesdropping on the Conversation

Tushnet, Mark, Judicature

Eavesdropping on the conversation judges in Contemporary Democracy: An International Conversation, edited by Robert Badinter and Stephen Breyer. NYU Press. 2004. 352 pages. $55.

Scholars have noted the emergence of a global conversation among judges who serve on constitutional courts. The conversation, they say, has numerous themes. Sometimes the judges discuss specific problems in constitutional law, such as the death penalty, by examining what various constitutional courts have said. Sometimes the judges address more general approaches to constitutional adjudication. Here the most notable topic has been the idea of proportionality-a requirement that legislation of any sort in any constitutional system must be reasonably well adapted to accomplishing the legislature's goals without excessively impairing individual interests expressed in the constitution. And sometimes the judges deal with the meta-question of whether, and to what extent, they should take each other's work into account when they do their own.

Often the "conversation" to which scholars refer is merely metaphorical, consisting of discussions within opinions written by a judge on one nation's constitutional court of the opinions of judges on other nations' courts. Sometimes, though, there are conversations in the literal sense, occurring when judges meet face to face at conferences and workshops. Anne-Marie Slaughter has observed that these meetings help build a network of constitutional courtjudges. I would add that face-to-face meetings might produce cross-fertilization through personal contact, as a judge meets someone who strikes him or her as just as insightful about constitutionalism, if not more so, than some of the judge's colleagues.

Robert Badinter, former president of the French Constitutional Council, and U. S. Supreme Court Justice Stephen Breyer appear to have such a relationship, and they have produced a transcription of a true conversation among constitutional court judges. The discussions occurred at a conference in rural France, supported by New York University. The definition of "judge" is perhaps a bit loose. Dieter Grimm was a well-regarded member of Germany's Constitutional Court, and Gil Carlos Rodriguez-Iglesias was president of the European Court of Justice, enough like a constitutional court for the European Union to count. Another participant, Antonio Cassese, a leading scholar of international criminal law, has served on international criminal courts. There is one clear ringer, Ronald Dworkin, who has never been a judge.

The conversation proceeded on the basis of short papers prepared by the participants, making the transcription, which includes the summaries of the papers as well as the papers themselves, a bit repetitious. The conversation was wide-ranging, covering international criminal justice and the relationship between judges and the media.

Sometimes the sessions appear to have been tutorials in which the judges told each other how their systerns handled particular problems. So, for example, the discussion of the supervision of the political process consists in the main of presentations about campaign finance regulation and the like. The chapter headed "The Judge Confronts Himself as Judge" has an extremely promising title, but ends up being mostly a desultory tutorial about judicial careers in the United States and in civil law systems. Perhaps prominent constitutional court judges found themselves a bit threatened by the topic and shifted the conversation to safer ground.

Sometimes, though, even these tutorials generate observations that illuminate the comparative enterprise. The conversation on the political process leads Rodriguez-Iglesias to observe, "we live in such different worlds" (p. 155), a sentiment echoed by Grimm's comment that the "cultural patterns [in different nations] are radically different" (p. 155). Yet Grimm wraps up the conference by suggesting that constitutional court judges around the world have already converged methodologically.

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