The most recent wave of criticism and political interventions directed against independent and powerful courts is not the first of its kind. Instead, today’s varieties of the claim that judges are “enemies of the people” echo the most important topos of criticizing the judiciary since the Industrial Revolution: the reproach of “class justice”. At least prior to the 1970s, it was the Left, not the Right, that viewed the judiciary, and in particular its potential political influence through the exercise of judicial review, with suspicion in many democracies.
In this paper, I study a case that follows this traditional Left-Right division over judicial authority: the conflict over judicial review in Inter-War Norway (1918-1940). I ask whether the repeated attacks by the Left against the exercise of judicial review during this period are best explained as the result of a rational choice based on the costs of judicial review to an interventionist policy agenda, or as the result of an ideological aversion against judicial review detached from its actual political significance. On the basis of both original historical evidence and secondary sources, I argue that the former is the case, and that formal judicial disempowerment through constitutional amendment was pre-empted by a shift towards more deferential legal preferences within the judiciary itself.
The Norwegian case, as well as the wider historical experience of judicial review in Inter-War Europe, improve our understanding of the current backlash against courts. They challenge theories that claim the possibility to use courts for “hegemonic preservation” efforts or posit electoral competition as key condition for the sustainability of judicial review. Instead, they emphasize the importance of the interaction between policy preferences and legal constraints and raise the question whether ideological shifts within the judiciary help it to retain its independence under changing political circumstances.