Judicialization and Politicization
Week 8
Judicialization and politicization
is politics more judicialized than in the past?
are courts becoming more politicized?
what are the political implications of judicial empowerment?
The rise of constitutionalism
the restraining of government through law
modern origin in French & American revolution
acceleration in response to World War II
expansion of constitutional rights and judicial authority
Judicialization of politics
the process of power shifting towards courts (and legal institutions) from other branches of government, especially the legislature
courts become an important site for settling issues of public policy
political actors and action become constrained by court rulings
who should ultimately decide matters of public policy?
Judicialization
three ways courts have become empowered vis-a-vis the legislatures (Ferejohn 2002):
- creation of substantive limits on legislative power
- policy-making through litigation and judicial precedent
- the regulation of political activity and enforcement of standards
Judicialization
two types of effects of courts in judicialized political systems:
direct: effects caused by litigation and court rulings
indirect: effects produced by the anticipation and threat of litigation
Ex ante v ex post review
one type of indirect effect of judicialization is legislator moral hazard (Fox and Stephenson 2011; Ward and Gabel 2019)
- knowledge that courts will correct ill-advised policies makes legislators behave more recklessly
this type of moral hazard is more common with ex ante judicial review (Gabel et al. 2024)
Judicialization
There is hardly any political question in the United States that sooner or later does not turn into a judicial question. From that, the obligation that the parties find in their daily polemics to borrow ideas and language from the judicial system. Since most public men are or have formerly been jurists, they make the habits and the turn of ideas that belong to jurists pass into the handling of public affairs. The jury ends up by familiarizing all classes with them. Thus, judicial language becomes, in a way, the common language; so the spirit of the jurist, born inside the schools and courtrooms, spreads little by little beyond their confines; it infiltrates all of society, so to speak; it descends to the lowest ranks, and the entire people finishes by acquiring a part of the habits and tastes of the magistrate.
Alexis de Tocqueville, Democracy in America (1835)
Judicialization
intertwined with the “juridification” of modern social life
the language of law, rights and adjudication seeps outside the courtroom
informal conflict resolution is replaced by judicial or quasi-judicial processes
Judicialization and proceduralism
rights and courts contribute to emphasis on formalism and procedural justice
widely accepted but narrow conception of justice (Pound 1910)
modern courts are less concerned with substantive justice (“the right thing”)
the idea is that proceduralism should lead to just outcomes
Judicialization of “mega-politics”
Ran Hirschl’s main normative objection to courts is the judicialization of “mega-politics” (Hirschl 2010, 2004)
reviewing whether the procedure was observed in public tenders is much less problematic from ruling that a new economic policy is unconstitutional
which issues are too “political” for courts?
- drawing the boundary is a normative judgment
Types of mega-politics cases
- Policy: e.g. rulings on the pessification of the Argentinian economy (2003-4)
- Electoral: e.g. excluding a candidate or declaring an election void (Romania 2024)
- Constitutional: e.g. SA CC demanding amendments to constitution (1996)
- Identity: e.g. Turkish Constitutional Court crackdown on religion (1998-2003)
Origins of judicialization
functionalist: complexity of modern governance requires more adjudication
institutionalist: court design sets off the process of self-empowerment
court-centred: judges are power-hungry and drive the process
rights-centred: rights and litigants explain expansion of judicial power
International judicialization
why would governments establish international judicial regimes that constrain them?
Moravcsik (2000) explains it as a form of “republican liberalism”
governments lock in their preferences against future political alternatives
newly established democracies are driving the process
Judicialization and politicization
courts expand their power through decisions on public policy and state institutions
- such matters naturally invite politicization which can lead to decline of trust in the long-run
as courts grow in importance, they also become more attractive to politicians
- judicialization –> politicization
politicians do not act merely within the rules but also with respect to the rules (existing institutions)
- if e.g. packing a court with loyalists helps to win power or realize political preferences, they will often do it
Politicization
beyond court curbing measures enacted by politicians, law and courts can become politicized also by
judicial elections
high-profile decisions
political polarization
autocratization
Dejudicialization
is the era of increasing judicialization over? (Abebe and Ginsburg 2019)
- most obvious in the backlash against international courts, e.g. dejudicialization of the WTO
but there are also signs in domestic politics
- e.g. the near total de-legitimization of the Polish Constitutional Court in recent years
References
POLS0113: Judicial Politics