As underlined by Simon Lester in a previous post, the United States keeps raising the following question:
how have we come to this point where the Appellate Body, a body established by Members to serve the Members, is disregarding the clear rules that were set by those same Members.
The economist Joan Robinson once said that it is difficult to define an elephant but when you see one you recognize it! In my view, there is no doubt that the United States is implicitly accusing the Appellate Body Judges of "behaving badly" or in other words of "judicial activism".
The problem is that according to Professor Randy Barnett, the expression "judicial activism", "while clearly pejorative, is generally empty." In the same vein, during oral arguments for Republican Party of Minnesota v. Kelly, Judge Scalia claimed that calling oneself a strict constructionist while criticizing others for being judicial activists "doesn't mean anything. It doesn't say whether you 're going to adopt the incorporation doctrine, whether you believe in substantive due process. It's totally imprecise. It's just nothing but fluff."
So, those waiting for the United States to clarify it accusation are likely to be left hungry.
In this context, I notice that no scholarly article has attempted to clarify the expression "judicial activism" in the WTO context (In the US, one can find such a work in The Origin and Current Meanings of "Judicial Activism", 92 Calif. L. Rev. 1441 (2004) ) and to distinguish clearly "bad" judicial activism from "useful" judicial activism.
I am however convinced that this distinction is relevant and is the key to unlock the present crisis. Is it too late for such a discussion?
Finally, I note that some commentators would like to evacuate completely the notion that there is such a thing as "bad" judicial activism and that Appellate Body Judges are simply doing their job of interpreting "unclear" WTO texts. Such a position is unhelpful because it evacuates the notion that sometimes there is a legitimate malaise when reading certain interpretations or indeterminate definitions out of the blue (e.g. definition of a "public body " in Article 1 of the SCM). Add to that the fact that the Appellate Body has decided implicitly that it never makes mistakes and therefore never reverses its jurisprudence.
