“US Shows Dangers of Judicial Politicization”.

In his debate piece, Petros Ulander aptly points out some of the problems with handing more and more political influence to the courts. Judges can have their own agendas, and the standards of legal policy that characterize lawyers in general and judges in particular are so different from what is usual among our elected politicians that the transfer of that power is often irreversible. However, there are two additional arguments to note in this discussion.

During my tenure as a PhD student I interviewed Gunnar Heckscher, who was then leader of the Right-wing Party from 1961 to 1965. The reason for my interview (which took place sometime in the early 1980s) was that in his previous work as a professor of political science he had been particularly interested in the same field as me, not It is the Swedish public administration.

However, we also came to talk about the system of judicial review of laws, as it operates, for example, in the United States, where the Supreme Court has very great political influence. Surprisingly for me, it turned out that Gunnar Heckscher was a staunch opponent of this. He considered it very important that we do not get in Sweden the politicization of the judiciary as is the case in the United States.

Jurisdiction over democracy ultimately becomes little more than politics by unelected people.

Gunnar Heckscher considered the principle of impartiality in the judiciary to be absolutely central to the legality of courts. The possible party affiliation of Swedish judges is not generally known and appointments to judicial positions must be made on the basis of actual legal merit. If we are to devolve more power to the courts, the politicization of the judiciary would be, according to Heckscher, an obvious consequence.

Research conducted at the University of Gothenburg’s Institute for Quality of Government shows that deviations from merit-based employment into positions in public administration are associated with high corruption and low ability to achieve good living conditions for the population.

The other problem that I have Most notable is that law, especially state law, is not an exact science. The large number of 5-4 decisions in the US Supreme Court clearly demonstrates this. You could say this is like going to a hospital emergency department and four doctors advise one of them to take Alvedon and go home, while the other five doctors consider the situation so serious that immediate and extensive surgery is required.

Uppsala political scientist Barry Holmström’s book Courts and Democracy from 1998 is a powerful empirical analysis of this, comparing judicial review of courts in France, Great Britain and Germany. What Holmström has shown in his research is that judiciary over democracy ultimately becomes little more than politics by unelected persons, precisely because in most politically important cases the law provides no sustainable doctrinal guidance for correct judgments.