"Liberal concepts of democracy envision courts as key institutions for the promotion and protection of democratic regimes. Yet social science scholarship suggests that courts are fundamentally constrained in ways that undermine their ability to do so. Recognizing these constraints, this book argues that courts can influence regime instability by affecting inter-elite conflict. They do so in three ways: by helping leaders credibly reveal their rationales for policy choices that may appear to violate legal rules; by encouraging leaders to less frequently make decisions that raise concerns about rule violations; and by encouraging the opposition to accept potential rule violations. In each way, courts promote the prudent use of power. We evaluate implications of this argument using a century of global data tracking judicial politics and democratic survival"--
Independent judges are thought to promote democratic regime survival by allowing perceived violations of rules limiting arbitrary power to be challenged non-violently in a fair setting, governed by transparent rules. Yet, judges are often subjected to public shaming and politically motivated removals. Courts are sometimes packed with partisan allies of the government, their jurisdiction is nearly always subject to political control and their decisions can be ignored. For all of these reasons, scholars have identied patterns of prudential decision-making that is sensitive to political interests even on the most well-respected courts in the world. If these forces all operate on judges, what, if any, are the conditions under which judges can be conceived of as defenders of democracy? How could judges subject to political pressures stabilize a democratic regime? This document summarizes a book that addresses these questions. We argue that despite these pressures judges can enhance regime stability by incentivizing prudence on behalf of elites, both those who control that state, i.e., leaders, and those on whose support leaders depend. Empirically, we leverage original data on judicial behavior, judicial institutions, and policy using a sample of all democratic political systems for over 100 years. We re-examine empirical claims of existing models of courts and democracy as well as original claims derived from our own work.
Schools, welfare agencies, and a wide variety of other state and local institutions of vital importance to citizens are actually controlled by attorneys and judges rather than governors and mayors. In this valuable book, Ross Sandler and David Schoenbrod explain how this has come to pass, why it has resulted in service to the public that is worse, not better, and what can be done to restore control of these programs to democratically elected—and accountable—officials. Sandler and Schoenbrod tell how the courts, with the best intentions and often with the approval of elected officials, came to control ordinary policy making through court decrees. These court regimes, they assert, impose rigid and often ancient detailed plans that can founder on reality. Newly elected officials, who may wish to alter the plans in response to the changing wishes of voters, cannot do so unless attorneys, court-appointed functionaries, and lower-echelon officials agree. The result is neither judicial government nor good government, say Sandler and Schoenbrod, and they offer practical reforms that would set governments free from this judicial stranglehold, allow courts to do their legitimate job of protecting rights, and strengthen democracy.
We can’t afford to be complacent any more: “A formidable book . . . extremely rich in historical examples, case studies, and quantitative data.” —International Journal of Constitutional Law Democracies are in danger. Around the world, a wave of populist leaders threatens to erode the core structures of democratic self-rule. In the United States, the tenure of Donald Trump marks a decisive turning point for many. What kind of president intimidates jurors, calls the news media the “enemy of the American people,” and seeks foreign assistance investigating domestic political rivals? Many think the Constitution will safeguard us from lasting damage. But is that assumption justified? Drawing on an array of other countries’ experiences, Tom Ginsburg and Aziz Z. Huq show how constitutional rules can both hinder and hasten the decline of democratic institutions. The checks and balances of the federal government, a robust civil society and media, and individual rights—such as those enshrined in the First Amendment—often fail as bulwarks against democratic decline. The sobering reality, they contend, is that the US Constitution’s design makes democratic erosion more, not less, likely. Its structural rigidity has had unforeseen consequence—leaving the presidency weakly regulated and empowering the Supreme Court to conjure up doctrines that ultimately facilitate rather than inhibit rights violations. Even the bright spots in the Constitution—the First Amendment, for example—may have perverse consequences in the hands of a deft communicator who can degrade the public sphere by wielding hateful language banned in many other democracies. We—and the rest of the world—can do better, and the authors conclude by laying out practical steps for how laws and constitutional design can play a more positive role in managing the risk. “This book makes a huge contribution to our understanding of how democracies erode and what institutional reforms would make it harder for authoritarian populists to entrench their power.” —Yascha Mounk, author of The People vs. Democracy “Whereas other recent books on the crisis of American democracy focus on what has gone wrong, Ginsburg and Huq provide us with clear-eyed proposals—including some bold constitutional reforms—for how to fix it.” —Steven Levitsky, New York Times–bestselling coauthor of How Democracies Die
This title examines the political role of courts in new democracies in Latin America and Africa, focusing on their ability to hold political power-holders accountable when they act outside their constitutionally defined powers. The book also issues a warning: there are problems inherent in the current global move towards strong constitutional government, where increasingly strong powers are placed in the hands of judges who themselves are not made accountable.
In this revised and updated edition of a classic text, one of America's leading constitutional theorists presents a brief but well-balanced history of judicial review and summarizes the arguments both for and against judicial activism within the context of American democracy. Christopher Wolfe demonstrates how modern courts have used their power to create new "rights" with fateful political consequences and he challenges popular opinions held by many contemporary legal scholars. This is important reading for anyone interested in the role of the judiciary within American politics. Praise for the first edition of Judicial Activism: "This is a splendid contribution to the literature, integrating for the first time between two covers an extensive debate, honestly and dispassionately presented, on the role of courts in American policy. --Stanley C. Brubaker, Colgate University
This book illuminates how law and politics interact in the judicial doctrines and explores how democracy sustains and is sustained by the exercise of judicial power.
Many critics attack federal judges as anti-democratic elitists, activists out of step with the mainstream of American thought. But others argue that judges should stand alone as the ultimate guardians of American values, placing principle before the views of the people. In The Most Democratic Branch, Jeffrey Rosen disagrees with both assertions. Contrary to what interest groups may claim, he contends that, from the days of John Marshall right up to the present, the federal courts by and large have reflected the opinions of the mainstream. More important, he argues that the Supreme Court is most successful when it defers to the constitutional views of the American people, as represented most notably by Congress and the Presidency. And on the rare occasion when they departed from the consensus, the result has often been a disaster. To illustrate, Rosen provides a penetrating look at some of the most important Supreme Court cases in American history--cases involving racial equality, affirmative action, abortion, gay rights and gay marriage, the right to die, electoral disputes, and civil liberties in wartime. Rosen shows that the most notorious constitutional decisions in American history--the ones that have been most strenuously criticized, such as Dred Scott or Roe v. Wade--have gone against mainstream opinion. By contrast, the most successful decisions--from Marbury v. Madison to Brown v. Board of Education--have avoided imposing constitutional principles over the wishes of the people. Rosen concludes that the judiciary works best when it identifies the constitutional principles accepted by a majority of Americans, and enforces them unequivocally as fundamental law. Jeffrey Rosen is one of the most respected legal experts writing today, a regular contributor to The New York Times Magazine and the Legal Affairs Editor of The New Republic. The provocative arguments that he puts forth here are bound to fuel heated debate at a time when the federal judiciary is already the focus of fierce criticism.
Whether examining election outcomes, the legal status of terrorism suspects, or if (or how) people can be sentenced to death, a judge in a modern democracy assumes a role that raises some of the most contentious political issues of our day. But do judges even have a role beyond deciding the disputes before them under law? What are the criteria for judging the justices who write opinions for the United States Supreme Court or constitutional courts in other democracies? These are the questions that one of the world's foremost judges and legal theorists, Aharon Barak, poses in this book. In fluent prose, Barak sets forth a powerful vision of the role of the judge. He argues that this role comprises two central elements beyond dispute resolution: bridging the gap between the law and society, and protecting the constitution and democracy. The former involves balancing the need to adapt the law to social change against the need for stability; the latter, judges' ultimate accountability, not to public opinion or to politicians, but to the "internal morality" of democracy. Barak's vigorous support of "purposive interpretation" (interpreting legal texts--for example, statutes and constitutions--in light of their purpose) contrasts sharply with the influential "originalism" advocated by U.S. Supreme Court Justice Antonin Scalia. As he explores these questions, Barak also traces how supreme courts in major democracies have evolved since World War II, and he guides us through many of his own decisions to show how he has tried to put these principles into action, even under the burden of judging on terrorism.
