This Article is based on the author’s farewell speech at the Federal Constitutional Court on May 26, 2023.1

Introducing the Special Issue on “Judging under Pressure,” this Article sets out three interlinked challenges facing constitutional courts, broadly understood: persisting inequalities, the climate crisis, and rising autocratization. The Articles in this Special Issue identify, analyze, and prescribe a set of judicial responses and strategies when judging under pressure. Some reimagine and recalibrate the role of judges, while others respond with doctrinal and theoretical innovation; yet, throughout, there is a recognition of judicial constraints and institutional fragility.

There is a dearth of women judges sitting on international courts and tribunals. This contribution pays attention to the question of why judicial gender matters. Demonstrating that sex-based differences play an important part in judging has challenged even the most committed essentialists. Legitimacy-based arguments are deemed inadequate in so far as they fail to address the structures of power and discrimination that create exclusions. In this contribution, I argue that the dearth of women judges matters because it is both symptom and cause of the highly gendered way in which international law and international institutions operate. Drawing on Erika Rackley’s early work in which metaphor is used to reveal the gendered nature of the judicial role, I call forth the idea of the totemic judge of international law whose male gender is rendered invisible and unremarked and who functions to enrobe the gendered norms and institutions of international law. The female judge, conversely, is a disruptive force as her very presence places gender in the frame. Drawing on accounts from international courts and from the Feminist Judgments in International Law project, this contribution concludes that an approach to judging that acknowledges and challenges structures of power – including gender – contains transformative potential. However, it is potential that must find a way to operate within significant institutional and normative constraints.

Typically one member of a sitting panel of Hong Kong's Court of Final Appeal is a senior jurist drawn from another common law jurisdiction. In the Court's early years, these ‘overseas judges’ were responsible for writing approximately one quarter of the lead opinions across a vast range of cases. This article demonstrates, however, that this practice has changed. The overseas judges now write a smaller share of lead opinions and no longer write lead opinions related to issues of fundamental human rights or the relationship between Hong Kong and the rest of China. This article suggests this change has been made for good reason. Though valid questions about the legitimacy of the role of the overseas judges can be made, they also continue to perform a valuable communicative role regarding the status of Hong Kong's judicial independence under the ‘one country, two systems’ framework. A recent rise in attacks on overseas and other ‘foreign’ judges in Hong Kong can be understood as part of a broader project that seeks to constrain the role of the independent judiciary. By continuing to invite overseas judges to sit on the Court of Final Appeal but reducing their public prominence, the Court has sought not only to reduce avenues for attacks on the legitimacy of particular decisions, but to protect the autonomy and independence of the judiciary more broadly.

This commentary on Jeremy Waldron’s essay, ‘The Rule of Law and the Role of Courts’, applies a holistic perspective on the rule of law and judging situated within a broader complex of surrounding social, cultural, economic and political factors and institutions.

This article analyzes the ambitious Case Quality Assessment System (CQAS) that the Supreme People’s Court of China (SPC) promoted during the first half of the 2010s. It offers a case-study of Court J, a grassroots court located in an affluent urban metropolis of China that struggled to come out ahead in the CQAS competition. The article discusses how the SPC quantified judging and the problems created by the metricization process. The CQAS project is analyzed as a case of metric fixation. By identifying the problems that doomed the CQAS, the article points out the challenges facing the authoritarian regime in subjecting good judging to quantitative output standards. The CQAS is a metric that judges judging. It reveals how judging is viewed by the party-state. The article concludes by discussing the legacy of the CQAS. Though it nominally ended in 2014, key indicators that it introduced for supervising judges are still used by the Chinese courts today. The CQAS presaged the growing centralization that the Chinese judicial system is undergoing today. Though the SPC has terminated the tournament-style competition that defined the CQAS, the metric remains the template used to evaluate judging.

This paper takes a sceptical look at the possibility of advanced computer technology replacing judges. Looking first at the example of alternative dispute resolution, where considerable progress has been made in developing tools to assist parties to come to agreement, attention then shifts to evaluating a number of other algorithmic instruments in a criminal justice context. The possibility of human judges being fully replaced within the courtroom strictu sensu is examined, and the various elements of the judicial role that need to be reproduced are considered. Drawing upon understandings of the legal process as an essentially socially determined activity, the paper sounds a note of caution about the capacity of algorithmic approaches to ever fully penetrate this socio-legal milieu and reproduce the activity of judging, properly understood. Finally, the possibilities and dangers of semi-automated justice are reviewed. The risks of seeing this approach as avoiding the recognised problems of fully automated decision-making are highlighted, and attention is directed towards the problems that remain when an algorithmic frame of reference is admitted into the human process of judging.

The objective of the study has been to examine whether the freestyle dressage classes are judged reliably and to elaborate a method assessing the consistency of judging. The data contained 13 000 marks of the ten best-ranked horses at nine Grand Prix classes and four Intermediate I classes from ten international competitions. The marks concerned 119 horses in total and were given by 37 judges. A method for evaluating the consistency of judging has been proposed. The index of disagreement (ID) assesses the disagreement of ranking by an individual judge relative to the general ranking based on the sum of marks awarded by five judges. The results show that the mean ID of individual judges is highly differentiated. The ID is influenced by the judge's position in the arena. The consistency of judging was lower in Intermediate I Freestyle Tests than in Grand Prix Freestyle Tests and it varied in different competitions. The conclusion of the study is that the results of the freestyle dressage classes are often biased. The present system of judging should be permanently checked. The offered method of evaluating agreement between judges' rankings may help to improve the consistency of judging and the reliability of the horses' scores.