2: Courts in Liberal Democracy

Why should unelected judges be able to overturn the decisions of elected governments? And what does it actually mean for a court to be independent? This week we situate courts in the normative frameworks of liberal democracy: the rule of law, the separation of powers and counter-majoritarianism.

Mandatory readings

Waldron, Jeremy. “The rule of law and the role of courts.” Global Constitutionalism 10, no. 1 (2021): 91-105. https://doi.org/10.1017/S2045381720000283

Vanberg, Georg. “Constitutional Courts in Comparative Perspective: A Theoretical Assessment.” Annual Review of Political Science 18, no. 1 (2015): 167-185. https://doi.org/10.1146/annurev-polisci-040113-161150

Melton, James, and Tom Ginsburg. “Does De Jure Judicial Independence Really Matter?: A Reevaluation of Explanations for Judicial Independence.” Journal of Law and Courts 2, no. 2 (2014): 187-217. https://doi.org/10.1086/676999

Optional readings

Epstein, Lee, Olga Shvetsova, and Jack Knight. “The role of constitutional courts in the establishment and maintenance of democratic systems of government.” Law & Society Review 35, no. 1 (2001): 117-163. https://doi.org/10.2307/3185388

Dahl, Robert A. “Decision-making in a democracy: the Supreme Court as a national policy-maker.” Journal of Public Law 6, no. 2 (1957): 279-295.

Helmke, Gretchen, and Frances Rosenbluth. “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective.” Annual Review of Political Science 12, no. 1 (2009): 345-366. https://doi.org/10.1146/annurev.polisci.12.040907.121521

Popova, Maria. “Political competition as an obstacle to judicial independence: Evidence from Russia and Ukraine.” Comparative Political Studies 43, no. 10 (2010): 1202-1229. https://doi.org/10.1177/0010414010369075

Hayo, Bernd, and Stefan Voigt. “Explaining de facto judicial independence.” International Review of Law and Economics 27, no. 3 (2007): 269-290. https://doi.org/10.1016/j.irle.2007.07.004