Policy Making By Appointment

The Composition of the Norwegian Supreme Court 1945-2009

Draft

Paper prepared for presentation at The Faculty of Law, University of , May 12, 2011

William R. Shaffer,a Gunnar Grendstad,b Eric N. Waltenburga

a Department of Political Science b Department of Comparative Politics Purdue University University of Bergen Beering Hall of Liberal Arts and Education 100 N. University Street Christies gate 15 West Lafayette, IN 47907-2098, USA N-5007 Bergen, Fax: +1-765-494-0833 Fax: +47-55589425 [email protected] [email protected] [email protected]

(ShafferGrendstadWaltenburg_PMBA_2011.pdf )

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Forutberegnelighet i rettsanvendelsen er kanskje like meget knyttet til viten om dommerne som til viten om regel og metode. Ketil Lund (1987:217).

For de som kjenner prosedyren ved utnevnelse av høyesterettsdommere, fremstår disse konklusjonene som åpenbart uholdbare. Jens Edvin A. Skohgøy (2010:723).

Policy Making By Appointment. The Composition of the Norwegian Supreme Court 1945-20091

1. Policy Making By Appointment In this chapter we examine the composition of the Supreme Court, since the characteristics of the sitting justices capture some of the experiences that can shape the political views of these policy makers. As indicated in the previous chapter, a very insular legal community dominates the Norwegian judicial system. Even the Supreme Court, located at the pinnacle of the Norwegian judicial process, is nearly invisible to the larger public. While no one expects justices to always respond to the ever-shifting winds of contemporary politics, the fact that the Supreme Court is a sheltered, almost obscure, political body is paradoxical in one of the world’s most democratic countries. Judges spend some important formative years in law school being socialized into the prevailing legal system, incorporating values into their political frame of reference. In fact, Supreme Court justices are recruited from that small pool of individuals who compiled the very strongest records in law school. Consequently, judges interpret public policy in light of such legal considerations as precedent, the meaning of laws under scrutiny, parliamentary goals embodied in legislation, and equitable considerations. There is little doubt that law school equips its graduates with the ability to engage in sophisticated legal reasoning that distinguishes lawyers from the population at large, or other professional groups for that matter. Certainly Supreme Court justices employ legal analysis when deciding cases. That is a given. Of course, as intimated earlier, the legal is not divorced from the political. Take the matter of equitable consideration, a criterion grounded in fair play. While a strict legal

1 Various Norwegian institutions and offices assisted in providing information: The National Archives of Norway, The Government Advocate, Director General of Public Prosecutions, The Ministry of Justice and the Police, the National Courts Administration, and Lovdata. We thank Anders Sondrup for research assistance in collecting information on the justices. His work was funded by the Meltzer Foundation at the University of Bergen.

2 interpretation might inform a Court decision, equitable consideration paves the way for extra- legal forces to influence the outcome.2 In fact, too much reliance on matters of “fairness” would be unsettling to scholars committed to what we call the “legal model” of judicial decision making (Magnussen, 2005). However, even what appear to be purely legalistic justifications may be cherry picked to support the ideological preference of a justice (Skoghøy, 2010). Be that as it may, many a judge will opt for a purely “legal” rationalization for staking out a policy position. Given that the judicial community is especially homogeneous (Hjellbrekke, 2007), if graduating from law school were the relevant characteristic of sitting justices, then they may be equally homogeneous in their decision- making behavior. But, they are not. They manifest differences in legal opinions that reveal a diversity of interpretation springing, in part, from their law school training, but also from socio-political factors impinging upon their judicial pronouncements. We contend that a lack of consensus on some key issues adjudicated by the Supreme Court may be the root cause for the non-unanimous decisions rendered. We focus primarily on the final stage of the process, and will make the case that votes cast in dissent from the majority opinion often reflect underlying political differences among the participating justices. Of course, the previously cited Ship Owner Tax case (Rt-2010-143) would appear to substantiate the claim, at least anecdotally. Certainly the Court seems to have become more muscular recently in its exercise of judicial review, as a matter of legal policy. However, in this 6-5 vote that went against the Social Democratic coalition government, all 5 minority votes were recorded by justices appointed by socialist governments, and 4 of the 6 majority votes were cast by those appointed by non-socialist governments. 3 A plausible interpretation would suggest that some underlying attitudinal predispositions were in play.

2 We do not intend to address the demarcation problem between legal and extra-legal forces. In general we refer to forces as all independent variables that are expected to influence judges’ decisions (Brace and Hall, 1997), as, for instance, when Dworkin (1988) uses the term ‘gravitational force’ when precedents narrow judges’ voting options, and when food breaks influence judges’ rulings (Danziger, Levav, and Avnaim-Pesso, 2011). For example, if legislators include the term ‘reasonable’ (rimelig) in a statute and leave the interpretation to the judge, does ‘reasonable’ amount to a legal or extra-legal force? On the other hand, legal sources refer to, e.g., laws, precedents, and legislative intent that invariantly present facts and arguments that may offer an anchoring, or not, for legal reasoning. 3 Still anecdotally, a cross-tabulation of the eleven justices’ votes by appointing government is statistically significant (Chi2=5.24; df=1; p<.02), whereas a cross-tabulation of the justices’ votes by experience at the Government Advocate, a hypothesis suggested by Georg Fredrik Rieber-Mohn (in, Kristjánsson 2010c) is not (Chi2=0.72; df=1; p<.38).

3 We recognize that offering concurring opinions also might reflect differing political values that have the potential to affect public policy (Corley, 2011). While we will analyze rigorously the complete non-unanimous Supreme Court five-justice panel votes taken in the post-War period, a systematic analysis of concurring opinions could easily strengthen the argument that the justices’ behavior reflects attitudinal differences, and possibly do so in a more nuanced fashion. Nevertheless, a great deal must be done with several decades of non- unanimous decisions before we venture into promising new areas. Although the Norwegian court system is appears to be a closed, insular one, an effort is made to select people of varying backgrounds, in order to incorporate a wide range of interests and life experiences (Domstolkommisjonen 1999). Of course, this principle is somewhat circumscribed by the fact that the pool of serious candidates is restricted to lawyers who performed extremely well in law school. Nevertheless, the extent to which this selection criterion is employed can produce a mix of justices more representative of the social, economic, and political predispositions of the broader public. Certainly those interests include, among other things, political ideology, gender-based issue positions, and regional orientations. If selecting applicants with an eye toward diversity does not have attitudinal implications, then appointing more women or aspirants from the far north might be only a politically correct charade of descriptive representation only. Not only are such extra-legal forces made manifest in the justices elevated to the Supreme Court, but those responsible for judicial recruitment are not immune from political preferences, as well. The reader should keep in mind that since World War II, the executive through the Ministry of Justice has dominated Court appointments. There are two phases of the process during which the government could influence, if not control, the appointment of justices: the (1) application and (2) recommendation stages. After announcing a Court opening, applications are accepted, and in more than one instance, potential candidates are asked, perhaps even lobbied, to apply. No doubt a purely sincere legal motive might encourage a well-placed member of the Norwegian elite, perhaps someone sequestered in the Ministry of Justice, to urge an eminently qualified individual to apply. In addition to legal bona fides and satisfying the norm of diversity, however, an applicant still may be recruited who shares values important to the executive. Once all applications, usually a limited number, have been submitted, a committee endorses those to be reviewed by the Ministry of Justice. The Minister of Justice also accepts the evaluation of candidates offered by the Chief Justice of the Supreme Court. Upon

4 evaluating the candidates through interviews and reference letters, the Minister of Justice submits a recommendation, which is approved by the King in Council. The appointment process was reformed in 2002 to increase the autonomy of the Court by establishing an independent Advisory Council for the Appointment of Judges. The Advisory Council evaluates the applicants and then sends a rank ordering of the three most qualified candidates to the Ministry of Justice, which in turn, makes a recommendation to the King in Council.4 Presumably, this reorganization insulates the process from the political objectives of the executive (Gangnes, 2010; Smith, 2003). However, there are pathways though which political forces remain in play. For instance, while the Advisory Council is not permitted to seek applicants, there is nothing stopping others from doing so. Although the selection of justices at both stages of the process may be fair and balanced, one “can also imagine that the executive responds to the court’s tendencies of legislating from the bench by appointing friendly justices” Eckhoff (1964:132), and indeed, may do so with unabashedly political goals in mind (Willoch, 2002). Effectively, then, appointment is more than populating the Court with the best legal minds, but an opportunity to affect constitutional law and public policy in an ideologically congenial direction (Torgersen, 1963). Simply put, extra-legal attitudes are, in effect, appointed to the bench. We might ask what politically relevant qualities should be considered when assessing the representativeness of the Supreme Court. A number of plausible typologies could facilitate this inquiry, but perhaps the simple Lipset-Rokkan (1967) two-dimensional schema, depicted in their figure illustrated below, points us in an appropriate direction. Along the horizontal axis, we would find substantive concerns that could be pervasive throughout the entire country, and these functional divisions can either be specific in nature, or more diffuse. We might place gender-based differences along this continuum, perhaps toward the interest- specific end of the spectrum, while ideological orientations would likely be considered more diffuse in nature. By contrast the vertical axis represents conflict in which some territorial units may be aligned against national authority. Lipset and Rokkan treat these two dimensions as orthogonal, one not correlated with the other. With respect the horizontal functional dimension, we shall examine the distribution of post-World War II Courts’ ideological stances and the distribution of women on the Court during those years. Drawing upon the vertical axis center-periphery distinction, we shall

4 The process also involves the applicants being interviewed by the Chief Justice and the most senior justice on the Supreme Court (Aschehoug, 2010).

5 discuss the representation of those we can most easily link to the Oslo-centric legal community and those from other parts of Norway.

Whether or not explicit recruitment of, say, northerners or women results in a more representative Court is an intriguing question. Do they bring different perspectives to bear upon legal and constitutional reasoning? Certainly many feminists would make a persuasive case that women bring an outlook distinct from that of their male colleagues. Likewise, the legal community outside of the Oslo national elite could plausibly maintain that the views of geographically peripheral regions of the country should find expression on the highest court in the land. What this intimates is that it is not just about legal training in Norway, which is fairly uniform across the nation’s law schools. Indeed, the life experiences, and concomitant values thereof, could shape jurisprudential understanding. However, if the goal is to recruit to diversity with the attendant outcome that the Court is more reflective of society, how might that affect the Court’s decisional outputs? Considering the flow diagram below offers a way, albeit a simple one, to organize our thoughts about the socio-political influence of some of these descriptive characteristics of Supreme Court justices.

6 Figure 1 Sources of Judicial Attitudes

Government with Ideology b a

Justice Public Predisposition c

Let us first consider path c to think about the influence of gender and geography. If a greater proportion of women find themselves on the bench, then presumably they would bring with them viewpoints sympathetic to women and women’s issues. This is not to suggest that women in the larger public would directly exert influence on women on the Court, but that females on the Court would share a number of values sensitive to the needs of women in the larger public (Boyd, Epstein, and Martin, 2010). Much the same could be said for those citizens living in the geographical and political periphery beyond the environs of the national capital. The basic notion here is that appointing women and non-Oslo lawyers to the Court brings perspectives that go beyond the legal training received in law school, which in turn leaven the Court’s decisional outputs. We see this exercise in diversity as conscious effort to incorporate a range of views that have little to do with the law, per se. We contend that variation in judicial attitudes is, at least in part, a function of the type of government making appointments to the Supreme Court (path b). Our logic is straightforward. Socialist and non-socialist governments have different policy agendas.5 They would probably like to handpick justices, but are institutionally barred from doing so: since 2002 an independent committee that administers the recruitment process and delivers its recommendations for new justices to the Minister of the Justice. To the best of our knowledge, the committee’s recommendations have never been overturned.6 In any event, our research on the most recent decade shows a significant correlation between the justices’ votes on economic cases and the nature of the government that appointed them (Grendstad, Shaffer

5 Except for the first six months after the Second World War and since the 2005 election, 60 years of government formation can be cleanly divided between socialist and non-socialist governments. 6 In our recently launched research project, we have as of yet not complete information of the institutional practices of recruiting new justices over the whole 65 year period.

7 and Waltenburg, 2011a). However, our immediate point here is that, whether a party of the left or one on the right dominates government, the government in power has a direct impact upon the composition of the Norwegian Supreme Court. By inference then, national election outcomes bear upon court decisions, at least indirectly (indirect path through a and b). We hypothesize that if there is a change in government, the political complexion of the Court begins to shift in a corresponding direction and that the Court’s decisions may reflect this change. This type of lagged change is suggested by Dahl (1957) for the U.S. Supreme Court. Certainly, over time the main impetus for change in U.S. Supreme Court opinions is presidential appointment (Baum, 1992), even though sometimes change can be a result of current justices changing their voting patterns (Hensley and Smith, 1995). It also bears mentioning that ideological predilections determine votes not only in the U.S. Supreme Court, but in some European courts, as well (Hanretty, 2011; Hönnige, 2009; Magalhaes, 2003; Voeten 2007; 2008). Some judicial scholars of the U.S. Supreme Court also suggest that public opinion has a direct impact (Mishler and Sheehan, 1993; Fleming and Wood, 1997; McGuire and Stimson, 2004), although some demur (Norpoth and Segall, 1994). While we see an indirect link between public preferences and Supreme Court decision making operating through the electoral process, more research is needed to establish a direct connection between the preferences of the Norwegian people and Supreme Court decisions.7 In any event, we claim that what makes the Norwegian Supreme Court a “political” institution is largely due to three factors: its function of resolving conflicts and deciding principled cases that raise significant policy questions; its lawmaking practice through precedents, judicial law-making (‘rettsskapende virksomhet’), and substantive rule of law (‘rettsregler’); and its task of deciding winners and losers in the struggle of rights and resources. However, the Court can also be perceived as “political” by the fact that it is the government that ultimately administers the appointment process. Since World War II, there have been shifting electoral fortunes among the parliamentary parties, which have alternated the composition of the government between the social democratic parties and the non-socialist ones. We assume that elected politicians who control the government are anything but agnostic about who is elevated to the Supreme Court, and therefore, select justices with an eye

7 A case in point would be Klingedommen (Rt-1946-198) in which the majority of justices claimed that an overruling of the lower court’s death sentence would violate the outcome that the people preferred (“stride mot ... det norske folks rettsfølelse”).

8 toward the attitudes their appointees hold. As a result, the variation in the political complexion of the Court is an indirect consequence of election outcomes. If variability in the descriptive characteristics of sitting justices predisposes them to disagree on important legal decisions heard on appeal, then an examination of the post-World War II trends in the Supreme Court’s composition should provide some insight into attitudinal dispositions which inform judicial decision-making behavior. During the 65 years between 1945 and 2009 that we study here, there have been a total of 214 appointments to the Court, i.e., acts in which the King in Council has appointed an interim or permanent justice to the Court. Fifty-two lawyers have been appointed as interim justice a total of 116 times. Ninety- one lawyers have been appointed as associate or chief justices to the court a total of 98 times.8 Six lawyers have first been appointed as interim justices and then subsequently were appointed as permanent justices. In our analysis we include the permanently appointed justices only. We begin with a descriptive analysis of the proportion of justices appointed by governments led by socialist or non-socialist parties. Quite naturally, we would prefer a more immediate and direct measure of political ideology, but sadly such a measure does not exist for all post-World War II justices, so we employ the nature of the appointing government as a reasonable proxy for ideology.

2. Historical Pattern: Socialist and Non-Socialist Appointment The mapping of Post-World War II descriptive patterns begins with the proportion of justices appointed by Socialist-led governments (See Figure 2).9 We do so, in part, because our initial analysis of Norwegian Supreme Court voting in nonunanimous plenary sessions of the Court from 2000 through 2007 provides empirical evidence to the effect that the position taken by

8 This number includes the six permanently appointed justices who later were elevated to chief justices (, Sverre Grette, Terje Wold, Rolv Einar Ryssdal, Erling Sandene, and Tore Schei; Paal Olav Berg was appointed chief justice before the start of our time series); as well as revolving-door O.C.Gundersen who served two non-contiguous terms as associate justice (as well as in several intermittent ambassador and ministerial positions). 9 The values by year for the Supreme Court justices are based on all justices who served on the court within any given year. Note that the proxy for the justices’ ideology is coded binary by the political ideology of the government, i.e., socialist-led (or: social democratic-led or Labour-led) versus non-socialist-led governments. In the half-year period after the Second World War, a broad-based caretaker-type government, representing 147 of parliaments 150 members and all but two political parties, including representatives from the underground resistance movment, was headed by of the (i.e., Gerhardsen I). Judicial appointments in this period were coded as non-socialist.

9 individual justices on an ideological dimension we label “Public vs. Individual: Economic Rights” is correlated with whether or not a justice was appointed by a socialist or non-socialist government (Grendstad, Shaffer and Waltenburg, 2010). This finding was later replicated for all Court panels dealing with public vs. private economic interests in nonunanimous decisions during the same eight year period (Grendstad, Shaffer and Waltenburg, 2011a). And this effect of appointing government was also found for the entire 65 year post- World War II period for five-justice panels in all nonunanimous decisions in civil cases where the government was a party (Grendstad, Shaffer and Waltenburg, 2011b). [Figure 2 Goes Here] Interpreted in this light, Figure 2 might suggest that in all likelihood the political center of gravity moved significantly over the time period under study. For instance, what must have been the politics of the Court from 1945 through the mid-1960s, a period during which Labour dominated the government? One could argue that this was a time in Norway when consensual politics ruled the day (Elder, Thomas and Arter, 1988). The public and the political parties shared a commitment to the welfare state that seemed unshakable. Furthermore, for much of this period, other political parties were pessimistic about the prospects of ousting Labour from its government perch (Rokkan, 1966). The appearance of an apparent consensus might suggest the lack of significant conflicting interests. However, we are reminded of Rokkan’s admonition that “votes count in the choice of governing personnel but other resources decide the actual policies pursued by the authorities” (Rokkan, 1966:106). During this time period, there was no paucity of divergent interests – whether economic, social or religious. The potentially conflicting demands, however, were directed into the corporate, rather than the electoral, channel, where boards comprised of business, labor and government negotiated policies and regulations, which in turn, were rubber stamped by government institutions, most notably the parliament. Conflict, therefore, was managed, not democratically through the electoral channel, however, reinforcing the belief that consented to all that was decided, leaving Labour without serious challenge at the polls. In any event, prior to the early 1960s, Labour governments merrily appointed justices so that the proportion of socialist government appointees rose from 46 per cent in 1945 to 95 per cent in 1964. If our early findings (Grendstad, Shaffer and Waltenburg, 2010) that political attitudes inform the Norwegian Supreme Court justices’ decisions hold for the entire post World War II period, then consensus on the Court should be the rule for the 1945 to 1964 time period.

10 Nothing happened to alter the percentage of justices Labour Governments appointed until after 1965 with the installation of ’s non-socialist coalition government comprising the Conservative, Center, Christian People’s, and Liberal Parties. The month-long reign of ’s non-socialist government in 1963 saw no new justices appointed to the Supreme Court. A dramatic change did occur between late 1965 and early 1971, a six-year period of non-socialist governance. At first blush, the “frozen” party system (Lipset and Rokkan, 1967: 50) appeared to thaw, but the shift in governmental control was occasioned by a very small decline in voters’ support of Labour at the polls (Rommetvedt, 2003:18-19). After 1966 justices were retiring, and those stepping down were Labour appointees. This is no surprise, given that Labour governments had appointed nearly all the justices. With the opportunity presented to the Borten government, there was sharp decline in the percentage of socialist-appointed justices, dropping from a high of 95 per cent in 1966 to 68 per cent in 1970. Although Labour was restored to government, the tranquility of consensus did not follow suit; a variety of issues – for example, membership in the European Community (EC) and the Alta Valley hydroelectric project (Urwin, 2000: 34) – prevented its restoration. Fragmentation and divisiveness continued through Labour’s eight year stint at the helm of the Norwegian government, and navigating these waters would prove difficult, as the 1981 election would demonstrate. Nevertheless, with Labour in charge, the proportion of socialist- appointed Court justices rose modestly, but steadily. The election of 1981was characterized by two very salient issues, taxation and abortion policy. Lowering taxes was a major campaign theme for the Conservative and Progress Parties (Kuhnle, Strøm and Svåsand, 1986), while on the question of abortion, an important issue in the previous election (Valen, 1992), the agrarian Center Party was split and the Christian People’s Party assumed the most staunchly pro-life stance. The combined outcome was to bring all non-socialist parties into a center-right position on the left-right continuum, giving them a solid parliamentary majority, and control of government until mid- 1986 (Shaffer, 1998). As suggested by Figure 2, retirements on the Court allowed the Conservative-led government of Kåre Willoch to reduce the proportion of socialist appointed justices below the 50 per cent mark for the first time since 1945. Taxation was no longer a salient issue by the time the 1985 election rolled around, having been replaced by health and care of the elderly (Shaffer, 1998). While the non- socialist bloc enjoyed a numerical advantage, the parliamentary coalition was extremely fragile, and Conservative Prime Minister Kåre Willoch, was unable to hold together the

11 deeply divided parties of the right. In addition, there was evidence of a leftward shift among three putatively non-socialist parties – the Liberal, Christian People’s, and Center parties (Shaffer, 1998). The anti-welfare state proved to be the downfall of the Willoch government when its two members abandoned the government’s oil tax proposal occasioned by the need to craft an austerity budget. The Willoch government collapsed and was replaced by ’s (Labour) second cabinet. There was a slight uptick in the proportion of socialist government appointees during Brundtland’s 1986-1989 stint as prime minister. Economic and social issues remained salient in the 1989 election, but the addition of environmental quality to the list of voter concerns (Valen, 1990) significantly benefitted the Socialist Left Party, seen as the party most likely to protect the environment. At the same time, however, the dramatic increase of seats held by the Progress Party, offsetting Conservative losses, gave the non-socialist bloc control of government—briefly. No one really expected this government to last long, given the fact that other right-of-center parties viewed the Progress Party with great skepticism. Moreover, the Center Party was completely at odds with the Conservatives over membership in the European Union. The non-socialist government collapsed in one year, during which time, nevertheless, there was a slight drop in the proportion of socialist government Court appointees during the ill-fated and short-lived non-socialist government (1989-1990) headed by Jan Syse (Conservative). Subsequently, with the restoration of a Brundtland government, the percentage of socialist appointees rose from a post-WW II low of 45 per cent to 73 per cent. Then, in anticipation of the 1994 referendum of EU membership, the Center Party nearly tripled its parliamentary presence, in the process becoming the largest non-socialist party in the . The resulting majority enjoyed by the center-right parties led to the selection of Christian People’s Party leader as prime minister. Subsequently, the proportion of socialist government appointees dropped steadily through 2005, interrupted by the one-year interregnum when Labour leader served as prime minister as a result of a no confidence vote in which Labour and the Conservative and Progress Parties supported the construction of gas-burning power plants, a move which was inconsistent with Norway’s commitment to CO2 emissions controls (Madeley, 2002:213). Although Labour had taken a more conservative position on taxation, center right parties upped the ante by proposing to use oil revenues to finance government programs and lower taxes (Madeley, 2002:214). In the end the results of the 2001 election gave the center-right parties the advantage, yielding

12 another non-socialist government with Bondevik (Christian People’s Party) restored as prime minister. The election of 2005 was unique in that for the first time in the Post-World War II era, a red-green coalition took the reins of government. This time Labour and its socialist allies emphasized spending on public services and raising taxes, a departure from Labour’s more restrained fiscal policies of the previous election. When Progress Party leader Carl I. Hagen withdrew support for any Christian People’s Party-led government, there was little standing in the way of a socialist bloc government (Sitter, 2006). Naturally, the percentage of socialist Supreme Court appointees increased during the remainder of the period under study. From the preceding, brief sketch of Norway’s electoral history, it is obvious that socialist or non-socialist appointments are linked directly to which bloc heads the government. Since the Labour Party has been the major player throughout most of the post- WW II era, we are not surprised to note that socialist regimes appointed two-thirds (67.8%) of the Supreme Court justices. The proportion of socialist government appointments never dropped below 45 per cent of the Court’s membership, and rose as high as 95 per cent. In addition, for every year a socialist government was in place, the proportion of socialist appointees increased by 5.5 percentage points.10 In and of itself, the obvious fact that the proportion of socialist government appointees varies with whether or not a socialist government is in place is uninteresting. However, it is a crucial link in the political chain that constitutes our theoretical foundation for hypothesizing that some Court decisions reflect the ideological predispositions of the justices. As indicated above, we have found evidence for the whole period we analyze here that the attitudinal model holds for the Norwegian Supreme Court, and that there are ideological differences between justices appointed by socialist or non-socialist governments (Grendstad, Shaffer and Waltenburg, 2011b). Basically, that observation would establish path b in Figure 1, showing a direct link between control of government and a justice’s ideology. The more justices that a government can appoint, the more it would tip the collective ideological propensity of the Court one way or the other. We may not need to establish the link between voters and the government (i.e., path a). After all, there is a wealth of empirical support that voter partisanship and attitudes on

10 The correlation between the increase in socialist appointments and the government in power is .554, with no evidence of serial correlation (Durbin Watson = 1.938). The associated regression equation is Y = -.089 + .055X, where Y is the change in the percentage socialist appointees and X is whether or not a socialist party or coalition headed government.

13 important political issues determine which bloc controls the government (path a) in any given election period. Therefore, if path a and path b, then we are comfortable with the argument that public opinion has at least an indirect impact on the ideological predilections of Norwegian Supreme Court justices. As noted above the direct connection (path c) between voters’ opinions and judicial ideology probably exists only to the extent that justices of different backgrounds may share policy predispositions with those of a similar background, such as a common regional background. Of course, politically insulated justices, such as those serving on the Norwegian Supreme Court, will not be as strongly influenced by public sentiment as those securing judicial positions through an electoral process (Baum, 2008).

3. Historical Pattern: Appointment of Women to the Supreme Court While a serious effort has been made to create greater gender balance on the Court, in order to incorporate diversity of social and political perspectives, applicants were required to be prominent members of the legal profession. One consequence of this is that although women constitute a segment of the population roughly equal to that of men, a female Supreme Court justice did not join the high court until 1968. Of course, while there may have been a relatively small percentage of female lawyers at the time, gender equality in politics and government also was not as pervasive as it has become. That said, Norway is considered to be among the most egalitarian societies in the world, and the presence of women in the country’s political life is quite impressive (see Andrews and Hoekstra, 2010; Inglehart and Norris, 2003). In the national executive, Gro Harlem Brundtland was a very popular prime minister, and the prospect of another female prime minister is not all that remote. Of the seven political parties holding seats in the parliament (as of spring 2011), four have women as their party leaders. Two are clearly on the left—Kristin Halvorsen (Socialist Left) and Liv Navarsete (Center Party), and two are decidedly on the right— (Progress Party) and (Conservative Party). While the current prime minister—Jens Stoltenberg (Labour)—is male, if a nonsocialist government were to be installed before the next general election in 2013, surely a female would become prime minister. Moreover, women head nine of the seventeen government ministries.11

11 Those ministries include Labor, Fisheries and Coastal Affairs, Government Administration, Reform and Church Affairs, Defense, Health and Care Services, Local Government and Regional Development, Culture, Education and Research, and Transportation and Communications.

14 A good deal of research has focused upon the incidence of women in national legislative bodies, and much of that work can be invoked to account for the trend over more than three decades of elections. We have plotted that trend in Figure 3, along with the corresponding trend in the inclusion of women on the Norwegian Supreme Court. Norway is among those nations with the highest proportion of women in parliament, and earlier studies suggest two general factors that we think have facilitated the election of women to the Storting—cultural values and institutional practices. [Figure 3 Goes Here] Assessing the role of culture, Inglehart et al. (2002) demonstrate that nations with well developed egalitarian values elect women to national legislatures in far greater numbers than more traditional cultures, or those more concerned with survival issues. Such societies have become well enough developed economically that they can move beyond “survival” to greater “self-expression values. With a greater commitment to egalitarian norms, more women are elected to parliament. Undoubtedly, Norway has a long-standing commitment to political equality, and the demand for such equality for women was viewed as “legitimate” (Bystydzienski, 1988:77). The egalitarianism of Norwegian political culture created a congenial environment for the inclusion of women in national politics. However, to take advantage of a favorable cultural climate, the activity of strong women’s organizations provided the impetus for the increased election of women to parliament. The concerted efforts of women’s groups in the 1960s through the 1970s energized the push to elect more women to the Storting (Bystydzienski, 1988:77). Institutional arrangements contributed to this growth as well. For example, Norway’s proportional representation system provided opportunities to slate and elect a significant number of women on party lists, an effect that has been observed in PR systems generally (Norris, 2004), at least in more developed nations (Matland, 1998). Of course, there are various structural features in proportional representation systems that offer opportunities for high levels of cohesion. For example, multi-member districts allow for diversity on a party ticket, resulting in more opportunities for women, but not so much because of high district magnitude, but more likely because of greater “party magnitude” (i.e., the size of a party’s parliamentary delegation in a multi-member district; Matland, 1993). In addition, there is considerable turnover of members of parliament in PR systems, whereas dislodging incumbents in majoritarian systems can be a long, torturous project (Norris, 2004). In Norway opportunities were plentiful, and with a strong push within

15 civil society, the trend of substantial increases in the election of women was jump started in Norway. Returning to Figure 3, we begin in the late 1960s when the percentage of Supreme Court Justices moved from zero to 5 per cent in 1968 with the appointment of the first female justice, Lilly Bølviken. The absence of women on the Court was true in the parliament as well. The first noticeable jump in female MPs occurred in the early 1970s, a response to the concerted mobilization efforts of women’s organizations (Bystydzienski, 1988). A significant increase can be observed after the 1977 election when the Socialist Left and Liberal Parties adopted gender quotas, to be followed by a leveling off during Conservative Kåre Willoch’s first and second cabinets. The proportion of female MPs remained in a more or less steady state until 1985, by which time the Labour Party decided to include a high percentage of women on its party lists. Thus, after the 1985 election, the presence of women in the Storting jumped to nearly 35 per cent. Without a doubt, reserving party list positions for women goes a long way toward explaining the dramatic upward trend from the late 1970s through the middle 1980s (Narud and Valen (2008). One other institutional variable of note is what Matland (1993) labels “party magnitude,” which is simply the size of a party’s parliamentary delegation in a multi-member district. If a party has a sizable number of MPs, it will have more opportunity to slate women on its election list. Indeed, at least through the early 1970s, party magnitude was linked to the presence of women in the Storting (Matland, 1993). Overall then, the combination of an egalitarian culture, a proportional representation electoral system, a sizable “party magnitude,” and gender quotas implemented by the political parties fostered the steady increase of women in parliament through most of the period under study. However, during the last 20 years, the proportion of women MPs has remained stable. While the Supreme Court functions in the same cultural milieu, the increase in the proportion of women justices was dampened considerably, due, in large part, to institutional impediments. Justices may serve until the age of 70, and unlike MPs are not subject to frequent elections. Consequently, the opportunities to elevate women to the nation’s highest court are sharply limited. Typically, a sizable number of males and females cannot be slated for multiple openings on the Court, a task that would have been challenging throughout most of the time period under analysis anyway, since women were not heavily represented in the legal profession in the early years of the period under study. So, a much slower process of placing women on the Court has had to rely upon the general embrace of equality in Norwegian political culture.

16 In the post-World War II era, the first woman, Lilly Helene Bølviken, was appointed to the Supreme Court by the non-socialist coalition government headed by Prime Minister Per Borten, and began her service on the Court in 1968. From that time forward to 1980, there was a gradual increase in the number of women on the high court, primarily during the Labour Party’s control of government. During Willoch’s first and second cabinets the proportion of women on the Supreme Court declined slightly, which in a way paralleled the leveling off of women in the Storting. Then from 1988 through the end of 2009, there was a slow, but steady increase in the proportion of female Supreme Court justices, until that percentage nearly matched the percentage of women in the parliament. That the pace at which the inclusion of women reaches an apparent steady state at slightly less than 40 per cent in both Parliament and the Supreme Court, in all likelihood can be explained by structural differences in the two national branches of government. Although the proportion of women on the Supreme Court is quite impressive by comparative standards (Andrews and Hoekstra, 2010), Chief Justice Tore Schei still thinks the inclusion of women on the Court ought to reflect their presence in the general population (Schei, 2006). Embracing this goal, Knut Storberget, the current Minister of Justice, seeks to assure that at least 40 per cent of the Court’s members should be women (NTB, 2008). That goal has nearly been achieved, as the plot in Figure 3 demonstrates. While the Norwegian culture of equality, combined with the influence of civil society (e.g., women’s groups) can be brought to bear on the composition of both Parliament and the Court, institutional features can account for the much more rapid growth for the Storting. Clearly, proportional representation and its attendant party magnitude, as well as the adoption of gender quotas, magnified the number of opportunities for women to win parliamentary seats. By contrast, changing recruitment rules to increase the percentage of women on the Supreme Court simply was not an option. The smaller number of positions along with the long tenure of sitting justices guarantees a very gradual replacement process. However, institutional impediments only seem to have slowed down the inclusion of women on the Court. In the long haul, an egalitarian culture has produced a legal profession populated by many more women and a corresponding commitment to appointing them to the Supreme Court.

4. Historical Pattern: Center-Periphery and the Supreme Court Rokkan (1967) has made a strong case that regional differences assist in explaining Norwegian politics, which is depicted as the vertical axis of the scheme displayed in Figure 1

17 above. For instance, the ‘counter culture’ of the periphery of western and southern Norway translated into new parties. While Rokkan’s analysis may appear dated, we can still find political variation by region. For instance, in the 1994 European referendum, the eastern region anchored by Oslo gave a very large majority of its support to joining the European Union. More specifically, 67 per cent of Oslo voters backed membership in a referendum in which that membership was rejected by 52.2 per cent of the recorded votes. Likewise, the communities of Bærum and Asker, conventionally included in the Oslo west legal community, cast 75 and 72 per cent of their votes for EU membership.12 Certainly, many other factors were at work in that referendum (Pettersen et al., 1996), but the center-periphery division noted earlier by Rokkan was relevant to that struggle over EU membership. In the Norwegian jurisprudential community, the center-periphery effect should emerge in a manner similar to the one observed by McGuire (1993) for the role of a Washington-centric legal elite in the United States. Focusing upon the dominant role of Washington based lawyers in arguing cases before the Supreme Court, McGuire asserts that we “. . . need to take account of the social alliances that exist among the legal, as well as political, actors who shape the direction of the choices made by the federal government” (McGuire, 1993:388). We strongly suspect a center-periphery effect in the Norwegian legal community, with the most elite players concentrated in the capital.13 A significant number of Supreme Court justices come out of this jurisprudential milieu, and we hypothesize that “social alliances” may shape the policy preferences of those eventually elevated to the Supreme Court. There is reason to believe that interpersonal interactions within this elite circle occur on a regular basis (Kristjánsson, 2010a:6). Such discussions may set the “Oslo West” legal community a bit apart from lawyers located outside the greater Oslo region. For example, there is at least anecdotal evidence that the Oslo legal milieu might be tied to the government.14 Indeed, law professor Eivind Smith

12 The township suburbs of Asker and Bærum immediately west of Oslo in the county of are often included in the greater Oslo area. These communities are not coded as part of the Oslo (until 1925: Kristiania) variable used here. 13 The country’s only law school existed at the until the University of Bergen started the second in 1969 and the University of Tromsø started the third and final law school in 1987. 14 Dean of the University of Bergen Law School, professor Asbjørn Strandbakken, argued that the Supreme Court should be relocated to the small town of Kristiansand in order to increase its independence from the government institutions in the capital of Oslo and to limit the recruitment to the Court from Homenkollåsen in ’Oslo West’ (Garvik, 2008).

18 has pointed out that far too many justices had been employed in the Ministry of Justice or some other governmental office. He claims that it is quite understandable that a justice could be influenced by work experience and environment (Kristjánsson, 2010b:9; Pedersen, 1994). The narrow nature of the legal community is evident when Supreme Court justices have to recuse themselves because they are married to the government’s prosecuting attorney arguing a case before the Court and other key civil servants in governmental (Kristjánsson, 2010b:9). This portrayal certainly plays into Fleischer’s characterization of the Supreme Court as government friendly (Fleischer, 2006). Moreover, Grendstad et al. (2011a) find that those justices born in Oslo were more likely to side with the government on economic issues than those from other regions of the country. Turning to the pattern of Oslo appointees since the end of World War II, we can readily observe that there has been a general, long-term decline over the last half century (see Figure 4).15 Initially, from 1945 through most of the 1950s, there was a steady rise in the percentage of Oslo-born justices from about 40 percent to over 60 percent of the Court membership. Sixty percent, however, was the high water mark. Since the 1950s, the proportion of Oslo-born justices has dropped until it settled at about the level it was at immediately after WW II. If (1) being part of the Oslo social matrix explains, at least in part, judicial decision making and (2) about 40 percent of all justices are part of that legal milieu, then this variable is of particular interest to students of the Norwegian Supreme Court. [Figure 4 Goes Here]

5. Historical Pattern: Center-Periphery and the Inside Track If ever there is a center-periphery division relevant to the Norwegian Supreme Court, it might well be reflected in Oslo service in key departments of the Ministry of Justice. In a recent work, for example, the degree to which the justices’ decision-making behavior was deemed government-friendly, a stint in the Legislation Department or the Public Prosecutor’s Department significantly increased the likelihood that a justice would side with the government when it was a party in a civil case (Grendstad, Shaffer and Waltenburg, 2011b; Østlid, 1988). Toiling away in the bowels of these critically important central government organs appears to encourage sympathy for the political center.

15 In 1956, the Oslo born Carl Rode, having been chief district court judge (sorenskriver) in the Vesterålen area in the 1945-1953 period, was selected for a justiceship on the Court in party because of his ’knowledge about Northern Norway’ (The National Archives of Norway).

19 Perhaps of the two above-mentioned central government agencies, the Legislation Department might have the greatest relevance for the full range of legal and constitutional issues brought to the Supreme Court for final adjudication. Clearly, a substantial number of justices are drawn from the Legislation Department (Kjønstad, 1999), and it would be naïve o think that this on-the-job socialization does not leave a lasting impression (Eckhoff, 1964). These are the very people who write or assist in writing the laws, and interpret the laws, with or without a request from other governmental officials (Andenæs, 1986). If indeed the Legislation Department decides “what the law is,” (Skarpnes, 1986:195), then justices recruited from this division of the Ministry of Justice may well continue to know what the law is when elevated to the high court. The post-World War II trend in recruiting Supreme Court justices from the Legislation Department is exhibited in Figure 5. [Figure 5 Goes Here] Generally speaking, the post-World War II period was marked by an approximately six decade long increase in the presence of former Legislation Department employees on the Supreme Court. From 1945 until the mid-1980s, the presence of these appointees was gradual, but steady. From then through the mid-1990s the proportion shot up to a point that half or more of the justices had this specific type of executive branch experience. A sharp decline beginning in 1997 bottomed out in 1999, was then followed by a resurgence of the appointment of those with Legislative Department experience, so that by the end of the period, well over 50 percent of the Supreme Court justices passed through the Department on the way to the pinnacle of the Norwegian judicial system. While unquestionably highly qualified judicial candidates can be found in the Legislation Department, a caveat of systemic proportions deserves mention. What we have here is not a smooth progression within say the court system. Justices are not necessarily moving from experience as judges in lower courts, which could easily be regarded as a logical career path, one in which ascension would proceed within a politically independent domain. Instead, we are witnessing a potential breach of a judiciary’s independence from the executive branch of government. Governments simply can elevate members of the executive branch to the high court. Under such circumstances, can we credibly assert that there is a meaningful degree of judicial independence from the executives controlling the appointment process? Perhaps, but the question deserves further attention. Of course, experience in the central government may represent, at least in part, a reinforcement of some basic values embedded in law school curriculum. Perhaps a bias tipped in favor of the government and more powerful economic interests is a natural

20 consequence of a legal education (Eckhoff, 1964; Fleischer, 2006). If so, law schools are, in effect, teaching more than legal principles and reasoning. They are equipping prospective lawyers and judges with some of the very extra-legal predispositions we seek to address in this book. Along these lines, academics have not only exerted an indirect influence on the Supreme Court by training future justices. Johs. Andenæs (1987), a prominent Scandinavian lawyer, a six time interim justice, and law professor at the University of Oslo Law School, at one time modestly pointed out that all justices on the Supreme Court once had been his students. Torgersen (1963) counts five law professors on the Court in the 1814-1884 period, primarily stemming from the disorganized situation at the University of Oslo in the beginning of that period. Then professors were absent from the Court for the next hundred years. But during the last two decades, a number of law professors themselves, not just their students, have found their way onto the high court. As charted in Figure 6, from 1945 through 1990 not a single law school professor was appointed to the Supreme Court. That pattern was altered when in 1991 Carsten Smith, a University of Oslo law school professor was elevated to the Supreme Court, although Smith himself, a dedicated scholar quite comfortable in the ivy tower, might have seen it as more of a lateral move than having been “elevated.” If Figure 6 is any indication, the presence of law professors on the Court rose steadily and peaked at 20 percent in 1998, and for several years remained at about one-in-five justices coming from the professoriate. That figure was nearly cut in half for several years, only to rebound in the last two sessions depicted in the graph. [Figure 6 Goes Here] At this juncture, we would hypothesize tentatively that the increase in law professors on the Court might have helped produce (1) more dissents and (2) a modest step toward increased institutionalization. As indicated in the previous chapter, Chief Justice Smith considered the Supreme Court to be a political institution, and thought that full discussion and dissent were appropriate elements of the deliberative process. At least intuitively and perhaps stereotypically as well, professors revel in extended discussion, debate, disagreement, and embellishment. In such a decision-making environment, dissenting becomes an accepted, perhaps an even valued, standard of conduct. The slow, but steady increase in the proportion of academics on the bench might reinforce the practice of dissenting from the Court’s rulings. On the second point, we surmise that the Norwegian Supreme Court is reasonably well institutionalized. Employing McGuire’s (2004) trichotomous typology, we note that the Court is “differentiated” in that it is distinct from other branches of government and has a

21 clear role in the political system. However, a sizable number of justices have not had a great deal of experience as judges prior to their appointment, a key indicator of differentiation. The Supreme Court is also “durable” in that it is an acknowledged governmental coequal with “… internal norms and regularized procedures for decision making” (McGuire, 2004:132), but a law clerk is not assigned to each individual justice, a form of staffing that should contribute to durability. Finally, with respect to “autonomy,” the Court does exercise control of its docket, but may be more dependent on the executive branch, given the judicial appointment process. It is on this final dimension of autonomy that the presence of law professors might make an important contribution. Clearly, law professors, being intellectually grounded in constitutional law, might be predisposed to engage in judicial activism when deliberating cases. One scholar notes that

… especially during the past few years, the Judiciary has shown a more dynamic understanding of its own power of judicial review of legislative acts and a renewed “activism” in its interpretation of the Constitution (Nguyên-Duy, 2011).

Perhaps the greater presence of law professors has encouraged such behavior, which in turn, seems to be stimulating increased institutionalization of the Norwegian Supreme Court.

6. Summary and Conclusion In this chapter, we have assumed that national policy ruled upon by the Supreme Court is, in part, determined by appointment. We contend that it matters whether or not a socialist or non-socialist government runs the appointment process, whether or not a male or female is selected, whether or not the candidate is plugged into the Oslo legal elite network, and whether or not the justice served in the Legislation Department or was a faculty member of one of the country’s law schools. That said, we have reported a descriptive analysis of these cases with respect to the government appointing justices, the presence of female justices, the distribution of justices from either the “center” or “periphery,” Legislative Department service, and previous experience as a law school professor. First, since we previously found a link between the vote of a justice and the party in government that appointed the justice, we presented a graph that tracked the proportion of those appointed by either socialist or non-socialist governments (Grendstad et al., 2010). As would be intuitively obvious, we find that for each year a socialist-led government is in place, there was 5.5 percentage point increase in the proportion of socialist appointees on the Court. Naturally, a similar pattern would hold for non-socialist appointments.

22 Second, tracking the proportion of women serving on the Supreme Court with the proportion elected to the Parliament, we find that while both percentages were comparable at the end of the period under study, there was a much more rapid increase of females in the Storting than on the Court. Institutional differences in the recruitment processes seem to account for the differential in the rate of growth. We suggest that the egalitarian nature of Norwegian culture eventually led to a respectable percentage being appointed to the Supreme Court. Third, some observers argue that there is a center-periphery effect, in which those in the national center of Oslo might, as an elite gathered in the nation’s capital, behave differently. Indeed, an earlier analysis unearthed a correlation between a justice’s decisional behavior concerning economic issues and whether or not the justice was born in Oslo (Grendstad et al., 2011a). Near the beginning of the post-World War II period, an extraordinarily high proportion of justices were Oslo-born, followed by a long-term decline. Nevertheless, even by 2009 nearly 40 per cent of the justices were born in Oslo. Fourth, while the Supreme Court is a relatively autonomous institution, the fact that we find a remarkable increase in the proportion of Legislation Department employees being elevated to the high court quite possibly might compromise the independence of the Court. These appointees bring a great deal of executive experience outside of judicial channels, adequate grounds to at least hypothesize that they bring government-friendly behavior. Indeed, recent empirical findings offer some initial support for this hypothesis (Grendstad et al., 2011b). We suspect that not only might this appointment pattern diminish autonomy, it also might suggest a reduced level of institutional differentiation. Finally, we noted that after their complete absence on the Supreme Court for well over four decades, law professors began to have a presence on the Court so that as of this writing, one-in-five justices were recruited from the professoriate of the nation’s law schools. This may rescue a greater measure of judicial independence, particularly in so far as we have witnessed the Court’s recent increased willingness to flex its judicial muscle on some controversial constitutional issues. Overall, the political, social, and professional backgrounds of justices must shape their perceptions of the law and its application in the adjudicative process. To the extent that justices are not machine-like drones cranked out by the nation’s law schools, their fundamental ideological attitudes inform their decision-making behavior. Most importantly for present purposes, if and when appointment decisions are made on the basis of gender,

23 party, center-periphery origins, or professional background, the government is to some degree making policy by appointment.

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27

Figure 2 Proportion of Socialist Government Appointees Norwegian Supreme Court 1945-2009

1.0

0.9

0.8

0.7 Non- Socialist Soc Soc Non- Soc 0.6 Non- Socialist Soc Socialist Non- 0.5 Soc Soc Proportion Socialist Appointees 0.4

0.3 1950 1960 1970 1980 1990 2000 Year

Soc

28

Figure 3 Proportion of Women Appointees Norwegian Supreme Court 1967-2009

0.5

Parliament 0.4

0.3 Socialist Socialist Non- Soc Non- Soc 0.2 Soc Non- Socialist

Proportion Women Soc Non- Soc Soc Supreme 0.1 Court

0.0 1970 1980 1990 2000 Year

Soc

29

Figure 4 Proportion of Oslo Appointees Norwegian Supreme Court 1945-2009

0.7

0.6

0.5 Socialist Non- Socialist Soc Non- Soc Socialist Non- Soc 0.4 Soc Non- Soc Soc Proportion Oslo Appointees 0.3

0.2 1950 1960 1970 1980 1990 2000 Year

Soc

30

Figure 5 Proportion of Justices With Legislation Department Experience Norwegian Supreme Court 1945-2009

0.55

0.50

0.45

0.40 Non- Socialist Soc Soc Non- Soc 0.35 Non- Socialist Soc Socialist Non- Soc 0.30 Soc Proportion Legislative Department 0.25

0.20 1950 1960 1970 1980 1990 2000 Year

Soc

31

Figure 6 Proportion of Justices Who Have Been Law Professors Norwegian Supreme Court 1945-2011

0.30

0.25

0.20

Non- Socialist 0.15 Soc Soc Non- Soc Non-

Proportion Professors Soc 0.10 Socialist Socialist Non- Soc Soc

0.05

0.00 1950 1960 1970 1980 1990 2000 2010 Year

Soc

32