In the U.S., the two recent candidates for appointment to the Supreme Court, Roberts and Alito, have both pledged allegiance to the text of the constitution. Their right wing supporters acquiesce in their decision to foreswear judicial activism on the side of the right, perhaps in order to forestall judicial activism on the side of the left. Their opponents are comforted that they will not be activist judges.
In the WTO, we seem to have avoided this type of ritual, surely in part because Appellate Body nominees do not go through public, televised hearings. Yet, the same type of issue arises. U.S. trade remedies lawyers criticize the "judicial activism" of the Appellate Body, especially in its safeguards jurisprudence. Without much dissent, the Appellate Body adopted the Shrimp-Turtle decision, which provided an evolutionary understanding of "exhaustible natural resources" under Article XX(d) of GATT, and also found that the chapeau of Article XX required it to search for a "line of equilibrium."
In Asbestos, the Appellate Body gave new meaning to the term "less favourable treatment", allowing a nuanced approach to discrimination under Article III of GATT, and also adopted a balancing test approach to the necessity tests in Article XX. This is judicial activism, but as Richard Steinberg writes in his article on Judicial Law-Making at the WTO in the American Journal of International Law, there are significant constraints on judicial activism.
This text-based, but evolutionary, approach to interpretation seems inconsistent with the Scalia attempt to determine what the framers of the Constitution had in mind at the time. There is an important distinction between fidelity to original intent and fidelity to text. Fidelity to text can accept that the authors of the Constitution had something in particular in mind, but that they entered into a commitment that was not time-limited and that allowed for evolution as the social, technological and legal context changes. This seems to be the right approach both for the WTO and for the U.S. Constitution, as it allows for text-limited interpretation that responds to change. This seems especially important in light of the fact that it is difficult to amend the Constitution and the WTO Charter.
