VJIL Symposium: Tom Ginsburg Comments on “The Perils of Judicial Independence”

[Tom Ginsburg is the Leo Spitz Professor of International Law and Professor of Political Science at the University of Chicago Law School.]

This post is part of the Virginia Journal of International Law Symposium, Volume 52, Issues 1 and 2. Other posts in this series can be found in the related posts below.

In “The Perils of Judicial Independence: Constitutional Transition and the Turkish Example,” Asli Ü. Bâli provides an important review of recent constitutional developments in Turkey. Turkey has always provided something of a Rohrshach test in global geopolitics, and the dramatic series of constitutional events of the past few years have been no exception. Bâli provides a lucid and contextualized description of these events, which include the rise of the AKP and its survival of a constitutional challenge in 2008; the Constitutional Court’s rejection of an attempt to overturn the headscarf ban in 2008; and the 2010 series of constitutional amendments that changed the composition of the constitutional court and expanded the number of seats. For some, these amendments represent an attack on the judiciary and a threat to Turkish secularism; for others, they are an appropriate institutional recalibration after several years of democratic development. Bâli leans toward the latter view. Her argument is that Turkish constitutionalism is beset by deeply rooted genetic conflicts between high modernist Kemalism and the forces of religion and pluralism identify that Kemalism suppressed.

I am in agreement with Bâli’s basic analytic point that judicial independence is not an unqualified good. The optimal balance between independence and accountability in any society is highly contextual, and will change over time. Furthermore, as Nuno Garoupa and I argued some years ago, the judicialization of politics typically leads to the politicization of the judiciary at some point. In the Turkish case, the very visible role of the courts in defending the founding principles of secularism in the face of the sustained electoral victories of Islamic parties made it inevitable that the courts would either have to soften their stance or suffer corrective political action when those parties finally won. Corrective political action seems now to have occurred. There is no theoretical reason that this dynamic, which has been observed in many democracies both new and old, should be different in Turkey.

Surely the claim that the AKP is undemocratic seems to have little basis. But at the same time, popular support is not the only criteria for a normative evaluation. While it is understandable, and in some ways impressive, that the Erdogan government could successfully take on the military and judiciary in sequence, it now seems to be going a step further to bring the media under its thumb. Recent reports have indicated that some 100 journalists have been jailed on terrorism charges, sometimes simply for articles criticizing the government. Here one must fear that Turkey is learning lessons from its eastern neighbor, Iran, in which the Supreme Leader’s power is facilitated by his formal supervision of the military, judiciary and media. In the long run, Turkey’s democracy may not be best served by a kind of dominant-party model, even if one accepts that the short-term consequences have been positive in many spheres.