Constitutional Courts / Supreme

Courts, General
Virgílio Afonso da Silva

Content type: Encyclopedia entries

Product: Max Planck Encyclopedia of Comparative
Constitutional Law [MPECCoL]
Article last updated: September 2018

Subject(s):
Judicial review of legislation — Preliminary procedures of constitutional courts/supreme courts — Powers
and jurisdiction of constitutional courts/supreme courts — Types of constitutional courts/supreme courts
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

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Emilio Meyer; date: 29 October 2020
 A.  Introduction
1.  Constitutional and supreme courts have been seen as an essential part of the political
system of constitutional democracies for quite some time. The first step on this success
story was the creation of the → Supreme Court of the United States in 1789, which served
as model for several North-, Central-, and South American countries in the nineteenth and
twentieth centuries. The creation of the → Constitutional Court of Austria
(Verfassungsgerichtshof) in 1920 is a second landmark of this story. If the United States
(‘US’) Supreme Court inspired the creation of similar courts in many countries until the
Second World War, the several waves of democratization in the course of the second half of
the twentieth century frequently encompassed not only the establishment (or re-
establishment) of → representative democracy but also the creation of constitutional courts,
especially in Europe but also in Africa, Asia, and Latin America.

2.  This contrast between the US and the Austrian (also frequently known as the European)
models has less to do with organizational aspects of these courts; it is instead a contrast
between two main approaches concerning → judicial review of legislation. More specifically,
it is above all based on the answer to two questions: who may declare the
unconstitutionality of ordinary legislation; and in which context? The US model (supreme
court) is grounded in the following answers: all courts (who) within a concrete lawsuit
(context). In contrast, the European model (constitutional court) is based on the following
answers: only the constitutional court (who) and in the abstract, ie independent of a
concrete judicial case (context).

3.  Because these two models seem to be based on such clearly antithetic answers to those
questions, other supreme and constitutional courts around the world have frequently been
analysed through the lens of the dualism of the US and European models, which has rarely
been called into question, especially in the US and Europe. Nevertheless, the majority of
supreme and constitutional courts around the world can hardly be accurately described
following those terms, and this holds true for at least three compelling reasons. First,
because even if one limits the scope of the typology to the two questions presented above,
many countries (including many European countries) simply do not follow such clear
divisions between either abstract or concrete review or performed either by only one court
or by any judge. Second, because supreme and constitutional courts possess powers that
may sometimes be more important in order to grasp their profiles than the power to
perform judicial review of legislation. Third, because the constitutional, institutional, and
political roles of constitutional and supreme courts in many jurisdictions may be more
accurately grasped from other vantage points and by taking into account other variables.
And since this is an encyclopaedic entry on supreme and constitutional courts, not on
judicial review, I am leaving aside both the fact that judicial review of legislation has in
some countries been performed by high courts or courts of appeal, not by supreme or
constitutional courts, as well as the fact that some countries have supreme courts without
having any kind of judicial review of legislation.

4.  This entry is organized as follows. I will firstly describe the origin of the supreme and
constitutional courts and then present the main features of the US and European models.
Subsequently, I will present a critique of this dualism based above all on the two reasons I
have just presented above.

B.  Judicial Review, Supreme and Constitutional Courts

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 5.  Judicial review of legislation is usually considered an idea with two fathers. The first is
John Marshall, the fourth Chief Justice of the US Supreme Court, who in the decision in the
→ Marbury v Madison Case (US) (1803) laid down the main arguments that until now have
been widely accepted as foundations for the power that (all) courts should have to set aside
legislation considered incompatible with the constitution. The second father is Hans Kelsen,
who was the author of one of the drafts of the 1920 Austrian Constitution and later justice
of the newly created Constitutional Court of Austria.

6.  Identifying Marshall and Kelsen as the fathers of these models of judicial review of
legislation—on which the sharp distinction between supreme and constitutional courts has
been to a great extent based—does not imply that the idea of judicial review did not exist
before Marshall, nor does it mean that Kelsen was the first person to make a case for the
creation of a constitutional court, nor that the Constitutional Court of Austria was the first
concrete experience of centralized review. In the US, Hamilton had already advanced
arguments in favour of some type of judicial review (Federalist No. 78). In Europe, the
Austrian Constitution (Federal Constitutional Law of the Republic of Austria: October 1,
1920 (as Amended to Federal Act No. 65/2012 of July 25, 2012)) was not even the first
providing for the creation of a constitutional court: the Constitution of Czechoslovakia
(Constitution of the Czech Republic: December 16, 1992 (as Amended to November 14,
2002)) had already done that some months before. In Latin America, the Supreme Court of
Venezuela has been exercising abstract and direct constitutional review of legislation since
1858, and the Supreme Court of Justice of Colombia had had similar powers from 1910 until
the creation of the → Constitutional Court of Colombia (Corte Constitucional de Colombia)
in 1991. Kelsen himself has always declared that he was inspired by Georg Jellinek who, in
the nineteenth century, had already argued for the creation of a Constitutional Court for
Austria (Jellinek 1885). In addition, almost a hundred years before, Sieyès had already
(unsuccessfully) defended the creation of a kind of constitutional court—the Jury
Constitutionnaire—during the French constituent assembly of 1795. However, irrespective
of these and any other forerunners, what remained and inspired the creation of many
supreme and constitutional courts in countries all over the world were above all else the
ideas of Marshall and Kelsen.

C.  The US and European Models

7.  As was already mentioned, typologies of supreme and constitutional courts usually do
not take into account the structure of these courts and instead focus on how judicial review
of legislation is performed in a given jurisdiction. This does not mean that there are no
organizational differences between supreme and constitutional courts. Maybe the most
salient difference lies in the fact that supreme courts are usually the apex courts in their
jurisdictions, whereas constitutional courts, even when considered as part of the judicial
branch (which is not the case everywhere), are specialized courts that do not belong to the
ordinary system of justice. In other words, constitutional courts have always been created
to perform a very specific task, judicial review of legislation, which is sometimes called, in
that context, constitutional review of legislation. In contrast, in many countries with
supreme courts, these were created even before the idea of judicial review of legislation
was introduced.

1.  The US Model

8.  The Supreme Court of the United States is the paradigmatic example. Article III of the
US Constitution defines the organization of the judicial power and provides for the creation
of a supreme court (Constitution of the United States of America: September 17, 1787 (as
Amended to May 7, 1992), Art. III). The court was created in 1789. Apart from some
exceptional cases in which the US Supreme Court has original jurisdiction, it was mainly
thought of as the ultimate appellate court of the country (→ appellate courts). Judicial

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 review of legislation is not explicitly provided in the US Constitution. It was only in 1803, in
the aforementioned decision Marbury v Madison, that the US Supreme Court decided that
courts have the power to set aside legislation deemed incompatible with the constitution.
According to this decision, ‘[t]hose who apply the rule to particular cases must, of necessity,
expound and interpret that rule. If two laws conflict with each other, the Courts must decide
on the operation of each’ (Marbury v Madison 5 US 137 [1803], 177 (US)). Since ‘an act of
the Legislature repugnant to the Constitution is void’ (ibid), it cannot bind the courts, which
must disregard the ordinary law. This power is shared by all judges and courts, and the
Supreme Court functions as the final appellate court.

9.  The most important features of the US model of supreme courts are as follows: (1) it is
the ultimate appellate court, (2) its appellate jurisdiction includes judicial review of
legislation, (3) the constitutionality or unconstitutionality of a given statute is decided
within a particular case, and (4) the power to set aside legislation is shared by all judges
and courts.

2.  The European Model

10.  In Europe, there are countries with supreme courts similar to the US court. Judicial
review of legislation has been performed, for instance, by the Norwegian Supreme Court
since at least 1866. Further, there are supreme courts that may analyse the constitutionality
of ordinary legislation but have no power to declare it void, such as the Supreme Court of
the United Kingdom. There are also supreme courts that have no power whatsoever to
analyse constitutional questions, such as the Supreme Court of the Netherlands. Finally,
there are countries where constitutional questions are decided mainly outside the judiciary.
However, it is true that the majority of European countries have eventually followed the
Austrian model and, in the course of the twentieth century, have created constitutional
courts.

11.  Even so, speaking of a European model is a crude simplification. Even if one focuses
only on those countries that do have a constitutional court, the differences among them are
glaring. Nevertheless, despite all possible variations, references to a ‘European model’
abound. The most important features of the European model of constitutional courts are as
follows: (1) they have original jurisdiction and a monopoly over the declaration of
unconstitutionality of ordinary legislation, and (2) the constitutionality or
unconstitutionality of a given statute is decided in the abstract, ie not within a concrete
judicial case.

D.  Expanding the Horizons

12.  As was stressed above, speaking of a European model of judicial (or constitutional)
review of legislation is a simplification. This is true not only because there are European
countries whose apex courts are more similar to the US model of supreme court or
countries that simply do not allow courts to decide constitutional questions, but especially
because the dichotomies centralization versus decentralization and abstract versus
concrete review are able neither to explain what characterizes the practice of constitutional
review of legislation in some countries nor the role of those courts within their respective
constitutional and political systems.

13.  One of the most important arguments for looking beyond the dualism of the US and
European models is the fact that the majority of constitutional democracies follow neither of
them. It is therefore a mistake to try to explain every constitutional system in the world
through US or European eyes. As was mentioned above, the ‘European model’ is not even

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 able to explain the review of legislation in the European countries, not to mention the
countries outside Europe.

14.  I do not intend to deny that the Supreme Court of the United States and, in the case of
Europe, especially the German Constitutional Court inspired and may still inspire the
creation of similar courts all over the world. However, this fact is not enough to justify
reducing the myriad of experiences of other countries to these two paradigmatic cases. At
least three main reasons, which will be presented in the following sections, may be
advanced to justify looking beyond these two traditional models.

1.  Institutional Design and Mixed Systems

15.  Even if one limits the analysis of supreme and constitutional courts to the two features
presented in the beginning of this text, which may be summed up by the dichotomies
decentralization–centralization and concrete–abstract review, it turns out that, as was
already mentioned, many countries do not clearly follow either the US or European models,
especially because many countries have, at the same time, both decentralized and
centralized as well as concrete and abstract review.

16.  A classification of judicial review of legislation based on the dualism concrete or

abstract review can have three categories: either the review is performed within a concrete
judicial controversy, or it is done in the abstract, or both. In contrast, it could be argued
that a classification of judicial review based on the dichotomy centralization versus
decentralization can have only two categories. If the question to be answered is ‘is there an
institution that has a monopoly over declaring the unconstitutionality of ordinary
legislation?’, then the possible answers are only ‘yes’ or ‘no’. In other words, either there is
an institution with such a monopoly, and thus judicial review of legislation is centralized, or
there is no such institution, and in this case the system is decentralized.

17.  However, institutional design tends to be a complex matter. A third path is not only
possible; it is indeed the case of many jurisdictions in which centralization and
decentralization (as well as concrete and abstract review) coexist. In Latin America, for
instance, many countries adopt systems that combine these four features. In these
countries, although no institution has a monopoly over declaring the unconstitutionality of
ordinary legislation, since every court and every judge may do so within an actual judicial
controversy, there is nevertheless an institution with original (ie, not appellate) jurisdiction
for reviewing legislation in the abstract. This institution—a supreme or constitutional court
—thus has a monopoly over abstract review.

18.  In a nutshell, it can be said that in these countries there is a centralized abstract
review as well as a decentralized concrete review. Trying to classify these models as either
US or European is thus pointless. As Navia and Ríos-Figueroa (at 191) argue, ‘innovations
tried in Latin America test the limits of any previously existing categorization’. In addition,
it also makes no sense to label these systems as mixed because this label seems to assume
that everything that does not follow the US or the European models is simply a mixture of
both, not a model on its own. This assumption stems from the fact that too few variables are
taken into account in the definition of these two, supposedly ideal, types of courts.

2.  Beyond Judicial Review of Legislation

19.  Beyond judicial review of legislation, supreme and constitutional courts usually possess
other powers that may strongly shape their role within their respective constitutional and
political systems. Even though constitutional courts are typically associated with judicial
review of legislation, the fact is that almost all of them possess other important powers. The

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 very same powers, however, may also be granted to supreme courts as well as other high
courts or even to non-judicial institutions.

20.  One of the most relevant of these powers is the power to decide matters related to
electoral competition. Supreme and constitutional courts in many countries have had the
power not only to settle concrete electoral controversies but also, and most importantly, to
interpret and sometimes even create electoral rules and to decide upon the registration of
political parties. Whether a given court has the last word on who may compete for elected
positions and under which rules—although of paramount importance for grasping the role
played by that court—is a variable that is not considered by typologies based on a sharp
contrast between supreme courts on the one hand, and constitutional courts on the other.

21.  A further important power that cuts across the distinction between supreme and
constitutional courts is the power to settle disputes concerning power-sharing, both
horizontally, ie between the executive and legislative branches, as well as vertically, ie
between constituent units of federal systems. Similar to the power to define the rules of
electoral competition, the power to settle disputes between other branches of government
potentially puts a supreme or constitutional court in a privileged position within a given
political and constitutional system, irrespective of whether and how this court exercises
judicial review of legislation.

22.  Finally, supreme and constitutional courts may hold the power to remove the head of
the executive from office. Whether a given court has this power or not has less to do with
the divide between supreme and constitutional courts and more to do with the system of
government adopted (presidential or parliamentary) as well as with historical reasons.

3.  Further Variables

23.  Many relevant organizational characteristics that help to define the roles that supreme
and constitutional courts may have in their respective constitutional systems should also be
considered. If one adds more variables to the classification of courts, the binary
classification crumbles immediately. I argue that at least some of the following features
should also be taken into consideration: (a) timing, (b) appointment of judges, (c)
composition of the bench, (d) term, (e) access to the court, (f) deliberation and decision-
making process, and (g) effects of the court’s decisions. These will be analysed in the
following sections.

(a)  Timing
24.  The most obvious and indeed most frequently mentioned variable is timing. In addition
to answering the ‘who’ and ‘in which context’ questions, it could be argued that the ‘when’
question also should be taken into account. The constitutionality of ordinary legislation may
be challenged either before or after a given piece of legislation is promulgated. Although
review of legislation usually occurs after promulgation, some countries admit preventive
control. The most well-known system of preventive control is that performed by the French
Constitutional Council (although there are other European countries that also incorporate
it, such as Portugal, Poland, and Romania, as well as several Latin American countries, such
as Chile and Costa Rica, and African countries, such as Algeria and Morocco).

(b)  Appointment of Judges

25.  The appointment of judges to supreme and constitutional courts may follow a variety of
different procedures (→ selection of judges at constitutional courts / supreme courts).
However, despite this diversity a common feature is almost always present: unlike the
selection of judges in lower courts, the appointment of judges to supreme and constitutional

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 courts generally entails a political element, especially because the political branches—
legislative and executive—are usually key players in this selection process.

26.  Members of the US Supreme Court are appointed by the president after confirmation
by the Senate. This process has been reproduced in several Latin American countries, but
almost all of them eventually abandoned it (with exceptions, such as Argentina and Brazil).
In some European countries, judges on constitutional courts are appointed by the legislative
branch (such as the → Federal Constitutional Court of Germany (Bundesverfassungsgericht)
and the Constitutional Court of Croatia, for instance). This model is also adopted by some
supreme courts (such as the → Supreme Court of Justice of Costa Rica (Corte Suprema de
Justicia de Costa Rica)) and the Supreme Court of Uruguay, for instance). Further, the
appointment of judges to a given supreme or constitutional court may also be conducted by
different persons or institutions: (i) there are courts whose members are selected partly by
the legislature, partly by the executive, and partly by the court itself or other courts or by
other institutions (such as the → Constitutional Court of Korea, the → Constitutional Court
of Italy (La Corte Costituzionale Della Repubblica Italiana), the Constitutional Court of
Chile, and the Constitutional Court of Angola, for instance); and (ii) there are courts whose
members are selected by commissions especially designed for this task, which are usually
composed of members from different institutions (such as the → Supreme Court of Israel
(Beit Ha Mishpat Ha Elyon) and the Supreme Court of the United Kingdom, for instance).
Finally, there is at least one constitutional court whose members are elected by → universal
suffrage, namely, the Plurinational Constitutional Court of Bolivia.

27.  With few exceptions, when the nomination of a judge has to be confirmed by the
legislature, a qualified majority—usually two thirds—is required. The most well-known
exception is surely the US Supreme Court: confirmation within the Senate requires only an
ordinary majority.

(c)  Composition of the Bench

28.  Judges in constitutional and supreme courts usually have a law degree. However, one
should not assume that the profile of these courts is similar simply because their members
have a legal background. A further important variable must be taken into account. Some
courts—especially supreme courts—have their members usually recruited from among
judges from lower courts. The US Supreme Court is maybe the best example. Constitutional
courts, in contrast, are usually composed of members coming from different legal
professions: judges from lower courts, lawyers, state attorneys, university professors, and
politicians with law degrees, among others.

29.  However, a sharp divide between supreme and constitutional courts is not possible in
regard to the composition of the bench, since there are many supreme courts whose
composition are as diversified as most constitutional courts.

(d)  Term
30.  Judges in the US Supreme Court have life tenure. This feature is found in almost no
other supreme court in the world (→ terms of office of judges). Almost all supreme and
constitutional courts have judges that serve for fixed terms, usually between eight and
twelve years. Some courts, such as the → Supreme Federal Tribunal of Brazil (Supremo
Tribunal Federal), the → Supreme Court of India, the → Supreme Court of Canada (Cour
suprême du Canada), and the → Supreme Court of Japan (Saikô saibansho), adopt a third,

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 intermediate approach: judges in these courts have no fixed term, but they must retire
when they reach a given age (mandatory retirement).

(e)  Access to the Court

31.  In countries where all courts may set aside ordinary legislation incompatible with the
constitution, the question of who can bring about constitutional challenges before the court
(→ standing (locus standi)) does not seem to be relevant. Since constitutional disputes may
arise within any concrete case, it is possible to assume that anyone involved in a case
before a court may challenge the constitutionality of a given statute.

32.  In contrast, in those countries where there is a specialized court with a monopoly over
the declaration of unconstitutionality of ordinary legislation, as well as in those countries
where even though there is no court with such a monopoly, there is nevertheless a higher
court that decides constitutional questions in the abstract, a relevant issue is the decision of
who may file constitutional questions before this court (see → access to constitutional
courts / supreme courts). This question has possibly as many answers as the number of
countries with abstract review. It may be only one person or institution, but it is usually a
mixture of governmental and non-governmental actors and, sometimes, individual citizens.
Additionally, judges themselves may be important actors who initiate constitutional
questions before constitutional and supreme courts, especially in those countries where
these courts have a monopoly over the declaration of unconstitutionality of ordinary
legislation. When a judge believes that a certain statute, applicable to a concrete case, is
unconstitutional, he or she must refer a constitutional question to the constitutional court.

(f)  Deliberation and Decision-Making Process

33.  Courts decide cases and controversies. This is their most important task. However,
typologies of supreme and constitutional courts almost never take into account how courts
deliberate and decide. Judges may deliberate behind closed doors, in front of an audience,
or live on TV. Courts may decide seriatim or per curiam, ie through the aggregation of the
opinions of each judge or through only one institutional decision. Concurring and dissenting
opinions may or may not be allowed.

34.  In this realm, the contrast between common law and civil law traditions tends to
explain more than the contrast between the US and European models. Courts of several
common law countries adopt the seriatim model, whereas in civil law countries courts
usually decide per curiam, usually after secret deliberation. Concurring and dissenting
opinions are thus usual in common law courts and more rare, sometimes even forbidden, in
courts of civil law countries.

35.  However, since supreme and constitutional courts of countries of civil law tradition,
especially outside Europe, may have been created for different reasons, in different
contexts, and inspired by ideas coming from many different places, it is not unusual for
these courts to follow the common law practices of deliberation and decision-making
instead. Therefore, many countries, especially in Latin America, although they belong to the
civil law tradition, have—or have had—courts that typically adopt deliberation and decision-
making processes from common law courts: seriatim, with concurring and dissenting
opinions, not behind closed doors.

(g)  Effects

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 36.  One of the most important issues related to supreme and constitutional courts, which,
however, are rarely taken into account in the typologies about these courts, are the effects
of their decisions in constitutional cases. The role of a constitutional or supreme court
within the constitutional system of a given country is strongly influenced by the effects of
its decisions. Under ‘effects’ it is possible to subsume a wide variety of variables, such as
the moment from which the declaration of unconstitutionality produces its effects (ex tunc/
ex nunc), the extent of these effects (erga omnes/inter partes), the degree of the binding
force of the court’s decision upon the legislative branch (strong/weak judicial review), the
nature of governmental action that is demanded by the court’s decision (positive/negative),
and whether the court monitors the implementation of its decision or not, especially in the
field of socioeconomic rights (see → Decision T-025 (2004) (Colom); see also Rodríguez
Garavito and Rodríguez Franco).

37.  In this realm, the antagonism between the European and US models or between
constitutional and supreme courts can, at most, point to some tendencies, but it does not
explain much. Although it is true, for instance, that the decisions of constitutional courts
usually have general (erga omnes) effects, this is not necessarily so. The Constitutional
Court of Luxembourg, for instance, only decides constitutional questions raised by ordinary
judges, and the effects of its decision bind only the judges who raised these questions. On
the other hand, even if the decisions of the US Supreme Court are directly applicable only
to the concrete cases brought before the court (inter partes effects), the doctrine of → Stare
decisis indirectly expands these effects to similar cases.

38.  The other kinds of effects mentioned above are even less related to the dualism
between the US and European models. They may be found across an array of courts
irrespective of legal tradition. Furthermore, in the case of the degree of binding force of the
court’s decision upon the legislative branch (strong/weak judicial review), some argue that
weak judicial review defines a category of its own, which is sometimes called the
‘commonwealth model’ (see Gardbaum).

(h)  Other Variables

39.  There are several other, less formal, variables that may be taken into account in a
typology of supreme and constitutional courts. Many of these variables are not determined
by the institutional design of these courts (even though they may be influenced thereby).
Some examples might include → independence of the judiciary and the degree of
compliance with their decisions. Unlike the variables presented in the previous sections, it
is usually difficult or even impossible to assess the variables mentioned here simply by
reading the constitution or the legislation of each country. Nevertheless, the study of these
variables may be relevant in the context of typology building insofar as it may show that two
(or more) courts that are formally identical may play completely different roles within the
constitutional and political systems of their respective countries.

E.  Conclusion
40.  It has been stressed throughout this text that a dualist classification of courts based on
the contrast between a US and a European model of judicial review of legislation can hardly
explain the diversity of courts in the world. A third category—mixed systems—does not help
either. It is, of course, possible to understand the US and European models as ideal types in
the Weberian sense. Ideal types are constructed from a one-sided accentuation of one or a
few features of the object being examined. They are therefore an abstraction made for
analytical purposes. In their conceptual purity, they ‘cannot be found anywhere’ (Weber
1968 [1904], 191). Real systems are always more complex and may combine elements from
different models. However, they usually lean towards one of the ideal types. It is possible to
assume that Favoreu (1990, 106) had a similar idea in mind when he argued that ‘mixed

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 systems ... evolve toward one or the other of the two principal models’. This, however, is an
empirical and analytical assumption that demands robust demonstration, which is never
accomplished.

41.  In conclusion, one could ask if a typology is possible in this realm at all. The answer
can only be affirmative. Classifications and typologies are always possible, and it would be
odd if this were not true in relation to supreme and constitutional courts. However, the
simple fact that a typology is possible does not mean that it is necessarily useful. Thus,
three conclusions may be drawn from what has been argued throughout this text: (1) a
dualist classification seems to have low explanatory power, especially when almost every
concrete experience does not seem to fit into either of the categories, thus demanding the
creation of a third, loosely defined category called ‘mixed systems’; (2) there are more
variables to be taken into consideration than the degree of centralization and the context in
which review of legislation is performed; and (3) it is perhaps time to decisively abandon
the labels ‘US model’ and ‘European model’.

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From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber:
Emilio Meyer; date: 29 October 2020