The dual meaning of evidence-based judicial review of legislation

What is it about?

The basic idea of evidence-based decision-making is ‘the conscientious, explicit and judicious use of current best evidence in making decisions…’ Evidence-based decision-making was first developed in medicine, but has since gained popularity in a variety of other fields, such as policy and management, and more recently, regulation and legislation. This article explores the idea of extending evidence-based decision-making to the judicial review field. The idea is that courts should ensure that the constitutional claims of the parties and the court’s constitutional analysis have a sound evidentiary and empirical basis. Consequently, judicial determinations of constitutionality, whether in determining the appropriate level of deference or in deciding on the merits, should be sound, rational evidence-based decisions. This article’s main argument is that evidence-based judicial review can have two versions, or two meanings, which differ mainly in their approach on how courts are to be satisfied that the determinations about constitutionality are based on firm empirical grounds rather than unsubstantiated speculations. One possible meaning is that the judicial decision determining the constitutionality of legislation should be a product of independent judicial evidence-based decision-making. For example, when assessing the proportionality of the law – and determining questions such as whether the legislative measure is indeed necessary, fit for its purpose and is sufficiently likely to achieve its stated goal – the court should base its decisions on empirical evidence that can support these conclusions, and require the parties to supply these evidence, or even engage in its own fact-finding. A second possible meaning is that the judicial decision determining the constitutionality of legislation should require evidence that the legislation was a product of legislative evidence-based decision-making. For example, when assessing the proportionality of the law, the court determines its decision, at least in part, on the question of whether there is evidence in the legislative record that the legislature considered the constitutional issue in question; the necessity of the measure; the fit between the measure and the law’s purpose; the availability of less-harmful alternatives; etc. The court examines, moreover, the extent in which the legislative consideration of these issues was a result of an evidence-based legislative process. It examines, inter alia, whether the legislature conducted appropriate investigations and studies, impact assessment and consultation procedures, and sufficient parliamentary debate and deliberation. The article then employs this novel insight about the overlooked dual meaning of evidence-based judicial review to shed new light on some of the major debates about this phenomenon, such as: whether it should be understood as part of substantive or procedural judicial review; the relationship between evidence-based judicial review and evidence-based lawmaking; and the role of legislative findings in constitutional adjudication.

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Why is it important?

The idea of extending evidence-based decision-making to the judicial review field stems from the recognition that judicial decisions on constitutionality of legislation often require more than normative analysis and constitutional interpretation, and often hinge on empirical and factual questions. These factual questions, moreover, often relate to scientific and social facts about the world, which go beyond the traditional ‘adjudicative facts’ relating to the parties in the specific case. Evidence-based judicial review stems to a large extent from common criticisms across jurisdictions about courts’ traditional performance in this area. These include claims that judicial decisions in constitutional cases are insufficiently fact-based and empirical in character, with courts tending to focus on normative and interpretative questions and to relay on ‘Socratic’ reasoning, while neglecting the crucial empirical and factual basis for determining constitutionality. Other criticisms focus on courts’ performance when they do attempt to deal with such empirical questions, especially regarding social and scientific facts. Evidence-based judicial review can help avoid two common potential pitfalls of judicial review. On the one hand, courts should avoid automatic and unquestioning deference to the parties’ claims, particularly to the legislature’s empirical assertions and to legislative fact-finding. Courts should make sure that these claims are not based on mere unsubstantiated speculations or ‘junk science,’ and more generally, develop a principled and coherent approach on when to defer to the legislature in these matters. On the other hand, courts should not do so by substituting the parties’ claims and the legislature’s findings with their own unfounded conjectures. An examination of the idea of evidence-based judicial review is important not only as a method to improve judicial review and lawmaking. It is also particularly timely, because courts around the world are increasingly engaging in evidence-based judicial review. Yet, these judicial decisions are radically under-theorized and reveal that this is an issue that has persistently and profoundly perplexed judges. This largely undefined phenomenon has also perplexed many court observers and legal scholars. Hence, beyond agreement about the existence of some emerging global trend in the way various national and supranational courts exercise judicial review, there seems to be much contention and confusion about this trend. This confusion, in turn, significantly undermines the entire normative debate on the subject. This article therefore contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualization of evidence-based judicial review. This article won the Gorney Prize for Outstanding Research in Public Law, awarded by the Israeli Association of Public Law.