Living to Fight Another Day: Judicial Deferral in Defense of Democracy

Abstract

Even many years after Marbury v. Madison, and even in the face of the spread of aggressive constitutional court review in democracies around the world, the ability of courts to assert their authority against the political branches continues to demand explanation. Especially in newly minted democracies, and most so in countries emerging from authoritarian rule, how courts can engage the misuse of state power remains a bit of a mystery. This Article examines the hitherto under-studied phenomenon of judicial deferral as providing some insight into how courts acquire the institutional capacity to engage in robust judicial review and, in particular, how the deferral of implementation avoids direct political confrontations for the judiciary.

Unlike in the US, constitutional court decisions around the world frequently delay the practical effect of their decisions. The Article explores various modes of judicial deferral, including suspended declarations of invalidity, doctrines of prospective overruling and progressive implementation, and more implicit or forms of delay involving narrow rulings paired with broad dicta. It also considers different functions served by judicial deferral, including practical concerns about smooth transition from one legal regime to another, democratic legitimacy and dialogue, and more political concerns about ensuring the legal and political preconditions necessary for effective judicial review; and the connections between these various 'first' and 'second' order modes and functions of deferral.

Once examined in this light, it turns out that various deferral-based strategies have been by courts in some of the most successful systems of constitutional review in recent years, including in Germany, India, Colombia and Indonesia. Finally, the Article turns to both the preconditions necessary for successful deferral and the corresponding risks when delay simply postpones an inevitable conflict.