Comparative+Judicial+Politics

For CRS Oct.26. Summarized by Kate. Core idea: The article looks at the concepts of judicial independence and judicial review to see how they differ from country to country and to try to explain some of this difference. Starting point: The ‘rule of law’ in general is widely accepted in democracies. However, allowing high courts (like the US Supreme Court) to conduct judicial review is more contentious. It essentially enables a small ‘non-majoritarian body of experts to second-guess the majoritarian institutions charged with drafting the laws in a way that reflects society’s interests’ (727). Therefore, the degree to which such bodies are independent of versus beholden to politics is very important. This, in turn, depends of domestic institutions and configurations of political power. Definition: ‘We take **judicial independence** to mean court autonomy from other actors.’ (729). - For statutory judicial review (review of lower-level decision-making bodies’ laws): If a court is threatened that its rulings will be overturned by the legislature, it will generally not implement more radical policy decisions that what the legislature is willing to accept – this curtails its independence, as it must take the legislature’s preferences into account in order avoid triggering an override. - For constitutional judicial review (review of the constitution): here it is generally harder for the legislature to overturn the court’s rulings, and often requires a supermajority. If this is not the reality, the court will be quite independent. Normative theoretical reasons to favor judicial review: - ‘Everyone can be better off, from behind a veil of ignorance, when society is governed by fairly constructed constitutional principles that stipulate rights and duties, and ... these might be better protected, particularly for minorities, by legal experts than by political actors supported by shifting majorities’ (731-2) - ‘Incomplete information about the future effects of legislation on outcomes would lead to excessively conservative laws were it not for the existence of an ex post check on legislative actions’ (732). Normative theoretical reasons to oppose judicial review: - Preference for assembly-based systems, where the legislature, as the embodiment of popular sovereignty, is empowered to make decisions instead of the courts. They argue minorities should be protected through institutions granting stronger voice in the legislature rather than through courts. - ‘Others argue that legal incrementalism tends to frustrate radical reforms and naturally favors conservative causes’ (732). How do courts gain political independence? - If the legislature is fragmented (for example, with the Parliament and the Executive preferring different policy outcomes), courts have more autonomy, - Legislatures can also intervene through their power to appoint judges, or by altering a court’s jurisdiction (what cases they’re allowed to hear), or by changing citizens’ ability to bring cases before courts. All of these capacities are lessened when thee legislature is divided. The US versus other systems. - In the US: The Supreme Court essentially gave itself the power of judicial review in the //Marbury v. Madison// case. - Outside the US: institutions vary. - In ‘old European democracies’: prefer assembly-based systems, and fear the ‘judicialization of politics’ as well as the ‘polticization of the judiciary’. 2 reasons for this – o legislative and executive branches tend to be fused, leaving no space for autonomous court action in a split judiciary. o However, parliamentary systems also tend to be more fragmented. o Thus, its not clear if courts would be more or less autonomous [OK – I admit – I don’t really get what they’re driving at here...] - In new democracies since WWII have often opted for ‘constitutional democracies’ (something of a hybrid between the US and European systems) where special constitutional courts are given the power of judicial review, which are independent of the rest of the judicial system (they can’t review the findings of the courts below them) and are ‘more circumscribed by the political branches’ [what this means in practice, I don’t know]. These have been preferred because o anti-authoritarian backlash – formerly authoritarian European states liked the idea of introducing a constitutional court because it would provide a check on executive leadership without taking the bulk of sovereignty out of the legislative assembly. o the non-authoritarian case – the legislative politics of minority protection: in countries that weren’t former dictatorships, many opted for constitutional courts because it would protect minorities within the country – these systems were often set up by outgoing political groups that did not expect to get back into power again soon but wanted judicial safeguards. In future research, how could judicial independence be measured empirically? 1. By how often the court overturns government actions. Of course, given full information, a government that knows a decisions can and probably will be overturned by the court may not implement that decisions – but given that such information is often not readily available, the authors determine that the measure is OK. 2. By examining court reactions to governmental attempts at nationalization. 3. It might also be useful to try to identify the conditions under which courts make ‘mistakes’ in anticipating government’s preferences and willingness to counteract their decisions – i.e. cases where government overturns their rulings.
 * John Ferejohn, Frances Rosenbluth, and Chales Shipan (2007), Comparative Judicial Politics. In Charles Boix and Susan C. Stokes (ed.s) //The Oxford Handbook of Comparative Politics.//**