Are courts like military dictators? The case of head scarves & judicial review in Turkey

Truly foundation constitutional decisions are (thank God) no longer made in the United States. To witness life-or-death constitutional decision-making, one needs to go abroad. It is a tribute to the parochial character of American legal academia that the major law blogs have mostly ignored one of the world’s most important constitutional controversies -- the Turkish Supreme Court’s decision to hear a prosecutor’s indictment asking that the ruling AK (“Justice & Development”) Party in Turkey should be banned because it violated Turkish principles of secularism. Compared to this monumentally important constitutional moment, Heller and Boumediene come off as relatively technical bagatelles.

As commentators and the European Union have noted, the Court’s likely decision to ban the AKP amounts to a coup d’etat -- one that has the active complicity of the military. With so much hanging in the balance, it seems frivolous to note that the Turkish case provides a lovely real-life reductio ad absurdum of ideological stances popular among in American legal academics, forcing all of us to confront the logical and, indeed, practical, implications of our wilder hypos for 1l students. For those who believe, like Judge Bork, that politicized judicial review constitutes a sort of military coup, the Turkish case provides ample confirmation. But it also highlights the difference between judicial and military coups – differences that attacks on judicial “activism” conceal, because they do not really take the “coup” analogy seriously. Likewise, for those who are enamored of secularism and separation of church and state, the Turkish case highlights the oppressive nature of “separationism.” But it also forces the anti-Lemon "neutralists" to think carefully about the ways in which crude statements about the harmlessness of "private" decisions depend on empirical assumptions that we seldom make explicit.

But, first, a little background on the case.

The Turkish case began when President Gul, fresh from a landslide victory in last summer's special election, pressed for and obtained amendments to the Turkish Constitution permitting female students to wear head scarves in public universities. Although the amendments were enacted according to the proper procedures, the Turkish Supreme Court disallowed them on the ground that they were inconsistent with the spirit of secularism that has governed Turkey since Kemal Ataturk founded the modern Turkish republic in the 1920s.

The decision to forbid a properly ratified constitutional amendment might strike an American as taking the anti-democratic possibilities of judicial review to new heights never scaled by SCOTUS. (When Elihu Root pressed such an argument against the 18th Amendment in 1920, the SCOTUS essentially laughed him out of court). But the Turkish Supreme Court is prepared to go much farther. At the request of a prosecutor who cites the AKP’s support for the head scarf amendments as evidence that the AKP is disloyal to Kemalist secular ideals, the Court has agreed to hear an indictment seeking to ban the AKP and 71 specifically named AKP politicians from Turkish politics.

The decision to indict the sitting government for violating “secularism” suggest confirmation of Robert Bork’s famous claim that there is no normative difference between politically motivated judicial review and military coups. (The Tempting of America: The Political Seduction of the Law 265 (1989)). In Turkey, the court has literally and not merely rhetorically assumed the role of the joint chiefs of staff. Under the 1961 and 1982 Turkish Constitutions, the “national security council” – literally a committee of generals – reviewed political decisions to exercise an informal veto over reforms deemed insufficiently secular and nationalistic. As a secular Istanbulli told me last summer, “our military coups are just like your Supreme Court decisions: The military protects the Constitution from popular government.” In response to pressure from the European Union, the Turkish Assembly gave civilian officials a majority on the Council in 2003 and reduced its policy-making influence. Naturally, the role for protecting Kemalism has, therefore, been transferred to the Turkish Supreme Court, a body dominated by Kemalists.

For those who are inclined to dismiss Bork’s claim that military and judicial rule are fundamentally similar, the Turkish case provides a cautionary tale: In Turkey, at least, the military and the judges belong to the same social class and operate on largely the same ideological (Kemalist) principles. Those principles include ultra-nationalist enforcement of linguistic uniformity (including suppression of Kurdish language and culture), censorship of speech critical of the Kemalist establishment or anything Turkish (honest appraisal of the murder of Armenians can land one in jail), and enforcement of a version of secularism that, in America, would be an grotesque deprivation of the free exercise of religion.

On the other hand, the Turkish case also provides a riposte to Bork’s rhetorical sally by taking it seriously. Bork declared that “[t]he man who prefers results to processes has no reason to say that the Court is more legitimate than any other institution capable of wielding power. If the Court will not agree with him, why not argue his case to some other group, say the Joint Chiefs of Staff, a body with rather better means for enforcing its decisions? No answer exists.” Actually, lots of reasons exist. For starters, courts do not hang the politicians that they depose. For another, courts operate with relative transparency, giving the government a chance to make its case and offering reasons that exhibit dissension in the ruling elite’s ranks. (Four justices of the Turkish Supreme Court, for instance, dissented from the decision to hear the indictment of Abdullah Gul himself). Moreover, the AKP will almost certainly survive the judicial coup in altered form: Erdogan (the prime minister and head of the party) will simply create a new party that he will control behind the scenes. (It has happened before).

“Coup by court” in other words, is progress of a sort over the military variety.

But one might wonder why the Turkish establishment cannot do a bit better. The paranoia of the Kemalists suggests a second respect in which the Turkish case illuminates American constitutional ideologies by exaggerating their absurdities. There is an under-theorized tendency among Americans on the Left to associate secularism with something vaguely identified as “progressivism” – openness to foreign values, democracy, freedom of expression, etc. Turkey exposes the arbitrariness of this assumption: In Turkey, secularism goes hand in hand with military dictatorship, ruthless censorship, and suspicion of anything foreign. It is the AKP that has proposed repeal of the infamous Article 301 of the Penal Code penalizing insults to “Turkishness.” It is the AKP that has lobbied hard to gain entry into the EU. Even the AKP’s endorsement of the individual’s right to wear a head scarf sounds far more protective of civil liberties to an American than the Kemalists’ wildly Jacobinical notion that every student who sets foot in a public university thereby becomes an agent of the state who must wear secular attire.

The old Lemon test has a whiff of such Kemalism to some American legal scholars. After all, if the government cannot spend money on religious expression, then how can the government give a scholarship to a student who wears a religious headdress? Even if the course is pristinely secular, all money is green: The money saved on math books might go to buy the hiqab or niqab. These are, of course, the sorts of hypos that generations of law profs have offered to law students to poke fun at Lemon's effects test. But the Turkish Kemalists actually bite the bullet and enforce Lemon more honestly than we do ourselves.

But there is another side to the story: In the eyes of the secular Istanbullis and Kemalist bureaucratic and military elite, private decisions by head-scarf-wearing women will informally force the minority of secular Turks into an Islamic mold. (For an example of such an attitude, see here) On this account, private decisions to wear the head scarf become a form of public intimidation. (Compare the efforts by the Socialist government of Weimar-era Prussia to ban the wearing of uniforms by Nazis and Communists during the early 1930s, as a way to control street violence).

Whether the Kemalist interpretation of head scarves is plausible, of course, depends on a myriad of factual details. How many people wear the scarf? What are the chances of private violence or discrimination against those who refrain? How costly is it for Islamic women to doff the scarves? Can they get a dispensation from the relevant religious authorities? Do they wear the scarves on their own initiative, or because of pressure from mosque leaders? How powerful are the latter, and what is the source of their power -- violence, moral suasion, parental pressure, or individual choice? How mobile are consumers of education and laborers? Can secular women avoid peer pressure by fleeing the rural Anatolian religiosity for the Big City?

Answers to these sorts of intensely factual questions are the basis for true religious and secular liberty. But members of different ideological groups answer them differently. All of these issues are, therefore, “judicially unmanageable,” meaning that judges decide them without revealing the true basis for their opinions. In American law, these questions tend to be buried under stale metaphors about “walls,” empty rhetoric about “neutrality,” and truly meaningless citations to utterly irrelevant historical documents. (e.g., Jefferson’s 1801 letter to the Danbury Baptists, which was, as a historical reality, little more than a club with which to beat new England Federalists but somehow has become a double-barreled anachronism -- an 1801 source on the meaning of the 1791 First Amendment or the 1868 Due Process clause). Buried underneath this detritus, the real work of judicial opinions will be done by the gut instincts of the judges about the empirical consequences of different rules. (As Jim Ryan and John Jeffries have argued, those judicial instincts changed when evangelical Christians abandoned their old anti-Catholic ideology against vouchers in the late 1970s, dragging along the Republican Party and judicial appointments towards the eventual adoption of the “neutrality” position of Zelman).

By comparison, the Turks deal with these issues in a refreshingly honest way. Two factions, secular and religious, make rival empirical predictions about the autonomy that individuals will enjoy if one or the other side prevails. The factions then battle it out in the public eye, using military-judicial and electoral mechanisms to reach an accommodation. Here's my prediction: The Court will ban the AKP for offending Kemalist fears, and the AKP will re-emerge under a new name and probably be re-elected by the Anatolian Turks who outpoll the secular Istanbullis. The Kemalists will have to weigh the costs and benefits of forcing their vision of secularism down the throats of a people who reject it. The AKP will have to weigh the costs of offending several million secular Istanbullis loyal to the Kemalist status quo.

It is essentially military constitutionalism. But perhaps ours is as well. We just have more practice in hiding the old struggle between Arminian-secular elites and Antinomian-Pietist plebes behind a legalistic curtain. We also have less of a tendency to take conflicts to the brink of civil war. Thank goodness for that -- but I confess that, as a result, our constitutional doctrines are more boring and less honest to me than the donnybrooks that one sees abroad.