essay questions

Consequential Courts

JUDICIAL ROLES IN GLOBAL PERSPECTIVE

Edited by

DIANA KAPISZEWSKI University of California, Irvine

GORDON SILVERSTEIN Yale Law School

ROBERT A. KAGAN University of California, Berkeley

CAMBRIDGE UNIVERSITY PRESS

xii Contributors

Manoj Mate is Assistant Professor of Law, Whittier Law School, and Assistant

Professor of Political Science (by courtesy), Whittier College.

Amnon Reichman is Professor of Law, University ofHaifa (Israel).

Druscilla L. Scribner is Associate Professor of Political Science, University ofWis-

consin, Oshkosh.

Martin Shapiro is James W. and Isabel Coffroth Professor of Law (Emeritus),

Berkeley Law, University of California.

Alexei Trochev is Associate Professor, School of Humanities and Social Sciences,

Nazarbayev University (Kazakhstan).

Introduction

Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan*

In early nineteenth-century America, Alexis de Tocqueville (1835) famously

observed, "[Sjcarcely any political question arises...that is not resolved, sooner

or later, into a judicial question." That may have been a considerable exaggeration

at the time, but today, the dynamic Tocqueville highlighted marks many constitu-

tional democracies in which independent courts are vested with powers of judicial

review. In such countries, political actors, organizations, and ordinary individuals

who become enmeshed in political conflicts have strong incentives to frame their

desires as constitutional or statutory claims and ask courts to vindicate them.

As a result, in the early twenty-first century, courts have become versatile actors

in the governance of many constihitional democracies, and judges and justices

play multiple roles in politics and policymaking. As many observers have noted/

politically consequential courts have emerged in new democracies from Korea to

South Africa to Brazil and beyond; courts in more established democracies such as

Canada and New Zealand have been given or have assumed more power to protect

individual rights and invalidate government policies; and both the European Court

of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on

dramatic roles in European governance.

However, the political power of courts has ebbed as well as flowed. In many

Latin American countries, judges are not blazing the way to robust constitutional

democracy in the way many hoped they might. The Hungarian Constitutional

Court, once hailed as one of the most significant new constitutional courts (Zifcak

1996), had its wings clipped less than a decade after its creation (Scheppele 1999).2

* Respectively, Assistant Professor of Political Science, University of California, Irvine; Assistant

Dean, Yale Law School; Professor Emeritus of Political Science and Law, University of California,

Berkeley.

1 See, for example, Tate and Vallinder 1997, Stone Sweet 2000, Hirschl 2006.

2 After another brief period of judicial independence from 2002 to 2010 (Piana 2010), the wing clipping

became far more aggressive starting in November 2010 when the Hungarian government amended

2 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

There has been a sustained backlash against the growing authority of the Supreme

Court in Israel. And in the last two decades, the U.S. Supreme Court has issued many

rulings designed to limit the use of litigation and courts to challenge governmental

decisions and policies (Staszak 2010, Siegel 2006).

This ebb and flow raises hvo broad questions: (i) what induces some high courts to

become actively involved in politics and policy making at certain moments; and (2)

in what arenas and to what effect do courts assume expanded roles in governance?

During a year-long Andrew W. Mellon Foundation John E. Sawyer Seminar at

the University of California, Berkeley, these questions were considered by an array

of academic specialists on high courts. Much discussion dwelt on the first issue -

identifying the reasons for the rise and fall of judicial power - a more traditional topic

for political scientists. However, at the heart of our deliberations was the conviction

that it is also vital to focus on the second question: what do empowered courts actually

do with their power? Where, to what extent, how, and why do they become politically

consequential actors in the life of a nation? Fully understanding judicial politics,

our discussions indicated, requires careful attention to the functional, substantive

roles that judges and courts play in government, politics, and policy. This book -

consisting primarily of detailed studies of the roles that courts in nations from every

region of the world have begun to play in politics and government - is the fruit of

those conversations.

We are not the first to consider judicial roles in politics, of course.3 This volume

is distinctive, however, in its explicitly comparative method, and its mapping of

the variety of roles in governance that courts are now undertaking, the political

conditions and judicial strategies that have fostered those assertions of power,

and the extent to which courts' attempts to play these roles have been politically

consequential. With only a limited number of case studies and with numerous, often

hard-to-measure causal variables in play, we cannot offer definitive explanations

for variation in judicial role expansion, or make definitive claims about the broader

consequences of expanded judicial governance. The volume does, however, offer a

wealth of ideas about how and why diverse patterns of judicial activity in governance

the constitution, stripping the Constitutional Court of its power to review legislation on key economic

policy issues. In part in reaction to the court's continued assertiveness, Hungarian officials rewrote

the entire charter in 2011, reducing the Constitutional Court to a shadow of its former self by packing

the bench, limiting the court's jurisdiction, and eliminating open access for petitions challenging the

constitutionality of laws (Scheppele 20113, 2oub, 20110).

3 Beyond the myriad studies of judicial roles in American politics, important work has been published

concerning the roles particular courts have played in other nations, for example, examining the

development of constitutional courts in France (Stone Sweet 1980); the Charter of Rights and the

legalization of politics in Canada (Mandel 1994); the emergence and growth of the European Court

of Justice (Alter 2001); and the growth of judicial power in India (Reddy 2009). Other scholars have compared how different courb handle similar challenges - such as adjudicating social policy (Tushnet

2009, Epp 1998); constitutional design (Slcach 2005); individual rights (Kende 2009); transitional justice (Teitel 2002, Elster2oo4); and economic governance (Kapiszewski 2012). Other studies have examined

the role of courts at particular political moments - such as democratic transition (e.g., Stotzky 1993;

Introduction 3

emerge and how courts have made a difference in the political life of their societies.

In that respect, we believe the book advances a new agenda for the comparative

study of courts.

In this chapter, we begin by discussing the concept of "judicial roles," distin-

guishing the political functions some courts are taking on today from the dispute-

resolution and law-enforcement roles that had traditionally been their bailiwick. We

then describe the various political arenas in which courts have become more active,

and the types of political-judicial roles that have emerged in some polities, refer-

encing a range of examples from the volume's empirical chapters and illustrating

what we refer to as judicial role expansion. Next, we offer a three-category frame-

work for considering the various factors and forces that impinge on judicial role

expansion and contraction, again employing a range of examples from the volume's

chapters. Finally, we discuss how courts have maneuvered to play (or indeed, avoid)

new roles, discussing the strategies, techniques, and tactics they have adopted to

do so.

EXPANDED JUDICIAL ROLES IN GOVERNANCE

The concept of a judicial role has commonly been used with reference to jurispru-

dential issues, characterizing how individual judges approach decision making in

individual cases. Judges, it has been said, might have: (i) a legalistic role conception

(feeling obliged to protect or adhere closely to legal texts and precedents, regard-

less of consequences); (2) an activist role conception (prioritizing judicial flexibility

and substantive justice); or (3) a deferential role conception (convinced that judges

should defer, on democratic grounds, to legislative judgments in disputes over con-

stitutional meaning).

Our emphasis in this volume, by contrast, is on the functional roles courts play

in politics, governance, and society. Thirty years ago in Courts: A Comparative and

Political Analysis, Martin Shapiro (1981) pointed out several basic sociopolitical

roles that courts traditionally have played in governmental systems. First, through

both criminal and civil cases, courts promote the peaceful resolution of everyday

disputes and reinforce widely held norms, thus helping maintain order.4 Second,

Shapiro noted that the legitimacy attached to ostensibly neutral courts enables

them to play an important role in enforcing and legitimating the laws and policies

promulgated by the dominant political leaders, also helping the central government

control local governments, police, and bureaucrats (see also Shapiro, Ch. 16 in

this volume). Third, courts traditionally have helped legitimate existing systems

of economic power by enforcing rules relating to property, contract, and in many

4 Courts do not provide everyday justice in all cases, of course, nor do they do so to everyone's

satisfaction. There are always risks of corruption, and political and social biases are often built into the

law; moreover, the costs, delays, and complexities of litigation usually give the "haves" an advantage

(Galanter 1974). However, by adhering to the trappings and practices of legal neutrality,

Q Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

cases, restrictions on competition. Fourth, Shapiro observed that applying generally

stated laws to individual cases entails interpreting legal ambiguities in a way that

draws courts into an interstitial lawmaking role. Echoing some of Shapiro's points,

Ginsburg and Moustafa (2008:4) observe that even authoritarian polities commonly

establish courts and grant them some degree of autonomy, because courts perform

five systemic functions or roles. Political rulers use courts, Ginsburg and Moustafa

argue, to: "(i) establish social control and sideline political opponents, (2) bolster

a regime's claim to 'legal' legitimacy, (3) strengthen administrative compliance

within a state's own bureaucratic machinery and solve coordination problems among

competing factions within the regime, (4) facilitate trade and investment, and (5)

implement controversial policies."5

In playing the sociopolitical roles outlined by Shapiro, and Ginsburg and

Moustafa, courts act primarily as agents of top political authorities. Traditionally,

courts are expected to faithfully enforce the laws, not make or change them, for in

principle the law is to be made by political leaders, embodying those leaders' policy

preferences. However, as both established and newer democracies have empow-

ered courts to declare laws and executive orders unconstitutional, there has been a

marked increase in courts' potential to assume new roles - to make new law and

apply law in new ways. When courts play these new roles in ways that depart from

political leaders' preferences, they can exert a significant, independent, and distinc-

tively judicial influence on broad realms of public policy, redistributing political

authority. To mention just a few examples from the case studies in this volume,

courts can decide legal disputes between political incumbents and challengers in

ways that contribute significandy to the consolidation of (or, indeed, weakening of)

constitutional democracy; resolve disputes behveen different branches of govern-

ment, thus helping to decide who governs; and affect the quality of government by

breaking legislative deadlocks and ordering bureaucracies to comply with statutory

and constitutional law.

Wliy would political leaders empower courts such that they can overrule govern-

mental decisions or otherwise function as independent political actors? Why would

politicians enact constitutionally entrenched bills of rights with the potential to limit

the government's own powers? Political scientists have identified a variety ofexplana-

tory scenarios. In the wake of a cruelly repressive regime, political leaders shaping a

new democracy often act on the hope that strong, independent judges - armed with

judicial review powers and constitutional bills of rights - will serve as barriers against

re-descent into tyranny (Scheppele 2000; Klug, Ch. 3 in this volume; Ferejohn,

Ch. 14 in this volume; Shapiro, Ch. 16 in this volume). Sometimes, a number

of jostling political parties, none of which can count on becoming or remaining

dominant (or a currently dominant political faction that is losing confidence), seek

political insurance by establishing a new constitution that enshrines aspects of their

5 See also Ferejohn, Ch. 14 in this volume.

Introduction

political program, secures political rights, and empowers a constitutional court to

enforce those provisions (Ginsburg, 2003; Hirschl 2007; see also Ramseyer 1994;

Magalhaes 1999; Finkel 2008; and Guarnieri, Ch. 6 in this volume). However,

elected leaders with a more stable power base may also obtain a range of political

benefits from designating courts the ultimate interpreters of the constitution, and

thus sometimes foist that power on them (Whittington 2007). For instance, judicial

empowerment sometimes reflects political leaders' desire to signal their commit-

ment to the rule of law in order to attract support from other nations, prevent capita]

flight, and/or encourage foreign investment (e.g.. North and Weingast 1989; Farber

2002; Silverstein 2003, 2006; Moustafa 2003, 2007). In federal polities, a powerful

court may promise subnational governments fairer treatment by the other subna-

tional units and by the central government, or may provide the central government a

tool to rein in subnational governments (e.g., Magaloni and Sanchez 2008; Shapiro,

Ch. 16 in this volume).

Moreover, as governments empower courts, demands for judicial action can also

well up from civil society. In modern states, citizens and voters expect govern-

ments to protect human rights, promote equal treatment, and provide protection

from bureaucratic arbitrariness and threats to their economic liberty and security

(Friedman 1984). Accordingly, political activists, legal reformers, business firms, and

ordinary litigants have increasingly sought judicial remedies for a broad array of

administrative, political, and policy grievances - thus calling on courts to play new

roles in governance.

Judges do not invariably respond to those demands, of course. Their willing-

ness and ability to act assertively, scholars have noted, depends on many factors,

including: (a) the extent to which the constitutional text and judicial precedents

give the judges a clear duty or opportunity to decide assertively in a particular case;

(b) judges' own political and judicial philosophy (Segal and Spaeth 1993); (c) the current political regime's determination and capacity to squelch unwanted judicial

challenges (Epstein, Knight, and Shvetsova 2001, Ginsburg 2003, Trochev 2008);

(d) the extent to which an assertive court can expect political support from powerful

allies (Vanberg 2001; Staton 2004, 2006, 2010); and (e) the relative strength of the

national tradition of respecting judicial independence, the rule of law, and judicial

creativity.6

As this long list of relevant factors implies, judges' willingness and ability to

respond to citizens' (and politicians') demands for more assertive rulings, as well

as political leaders' tolerance for such rulings, vary from polity to polity, over time,

and even from issue to issue. However, where judges have grown more willing to

make assertive rulings, and political leaders are more inclined to comply with their

Judges' education or hard negative experience may have produced a judicial culture that favors a more

mechanical application of legal texts and sfrongly discourages judicial assertiveness against political

authority or involvement in politically controversial issues. See, e.g., Couso 2005, Hilbink 2007, and

Huneeus 2010 on Chilean judges.

D Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan decisions, lawyers and political activists are concomitantly encouraged to bring a

widening array of grievances to court. This can lead judges to adopt more expansive

interpretations of constitutional ideals, further expanding their roles in governance

(Stone Sweet 1999). It is these roles that our volume explores.

Before proceeding with our analysis, several caveats, qualifications, and prefatory

points are in order. First, let us reemphasize that we do not mean to suggest courts

have become more powerful political actors everywhere, or that all high courts fol-

low the same developmental path toward expanding roles in governance. The courts

examined in this volume - the lion's share of which have assumed important roles

in society, politics, and policy making - are not fully representative of courts around

the world. Rather, the countries under study were selected to illuminate the ques-

tions that inspired this project. We sought to examine a particular phenomenon -

courts acting more expansively than most judiciaries did in the past - in order to

identify new roles high courts have been playing in recent decades and thereby

to encourage scholars to ask new questions about the place and impact of courts

in politics and policy. We therefore had to examine country cases that had already

become the object of serious academic attention, revealing courts' expansive actions.

Simultaneously, we sought to examine courts from a broad geographic range, from

both civil-law and common-law traditions, with newer as well as long-established

records of judicial independence. Those goals recommended a nonrandom, tar-

geted process for choosing country cases. We hunted where highly qualified scouts -

our chapter authors - had already identified and studied the kind of quarry that fit

our criteria. Given this case-selection technique, the empirical chapters do not war-

rant conclusions about what percentage of courts are playing more important roles

throughout the world, or strong generalizations about why or when they do or do

not do so. Instead, the chapters offer a broad foundation of contexhially rich empir-

ical evidence and compelling examples of courts that do play consequential roles

in governance in polities around the world, and demonstrate that one cannot fully

understand national politics in those contexts without paying close attention to their

courts and the interaction of courts with other government institutions.

Second, we do not imply that courts will necessarily resolve (rather than exac-

erbate) government stasis, that they will defuse (rather than enflame) normative

conflict, or that if they assume the role of delineating and enforcing individual rights

they will interpret them expansively. We are not proposing that courts are everywhere

and always "the good guys." Courts can play new roles in different ways, prioritizing

order and authority as well as liberty or equality, endorsing local autonomy as well

as central governmental power. Our volume illustrates some of that variety.

Third, we acknowledge that as passive institutions - and "the least dangerous

branch" (Hamilton 1788; Bickel 1962) - courts hardly ever act alone. Just as one

can think of the roles that different musical instruments play in an orchestra -

with first violins carrying the melody, basses and percussion propelling the rhythm,

and so forth - so, too, courts, once they are granted or assume constitutional review

Introduction 7

powers, rarely perform as soloists, instead becoming part of the ensemble of governing

institutions. The more important the parts (or musical roles) assigned to courts in the

orchestral score, the more forcefully courts play their parts, and the broader the range

of other instruments (political and societal actors) to which they play counterpoints,

the more courts affect the ensemble's overall performance - that is, the more they

influence society and the output of a political system.7 Where the "legal complex"8

and support for constitutional norms are less developed or political cleavages too

entrenched and intense, court rulings supporting constitutional democratic values,

for instance, may have lesser or only short-lived effects. One of our goals in this

volume, then, is to understand how courts interact with other political actors: how

some actors encourage courts to play new roles and help them do so, whereas others

hamper and block their efforts.

Finally, as the title of this volume suggests, asserting that courts are playing

more and expanded roles in governance implies that their decisions are in some

sense consequential, that they have some actual effect on the governance of the

surrounding society. Making such a claim, however - even if only implied - involves

an evidentiary challenge. It requires investigating what happened after a court issued

its decisions, both in the short- and long-term, and to what extent its dictates - as

opposed to other factors - actually shaped the subsequent course of events. Judicial

consequentiality, therefore, can confidently be assessed - and hence a full account

of judicial role expansion offered - only with the passage of time.9 However, most

of the studies in this volume focus on relatively recent court decisions, thereby

limiting contributors' ability to trace the consequences of the rulings they discuss and

comment on how enduring and significant expanded judicial roles in governance

have been. We believe, however, that the studies represent a crucial first step toward

understanding the conditions under which courts can be consequential.

POLITICAL ARENAS AND JUDICIAL ROLES

Certain kinds of political disputes, conflicts, and tensions emerge - sooner or later -

in virtually all polities, and increasingly, in some countries, they are generating

demands for judicial action. The empirical studies in this volume reflect five such

arenas of political contention: (i) conflicts between incumbent political regimes and

their challengers; (2) conflicts between proponents of secular versus religious val-

ues; (3) conflicts behveen competing power centers within national governments or

7 We are indebted to Mark Graber for the orchestral image of interbranch relations.

This term, as Halliday (Ch. 13 in this volume) discusses, is drawn from Halliday, Karpik, and Feeley

(2007: 6-7), who use it to refer to "the system of relations among legally-trained occupations which

mobilise on a particular issue." For Halliday et al., lawyers (including government lawyers and legal

academics) and judges form the heart of the legal complex.

9 To be clear, there is an important difference between courts playing a particular role successfully, and

being consequential. Even when a court is not successful in the sense of outcomes exactly matching

its dictates, its rulings may still be very important to the way political events play out.

p Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan between central governments and culturally or politically divergent subnational gov-

ernments; (4) conflicts emerging from popular anger concerning official corruption,

or governmental deadlock or stasis; and (5) conflicts reflecting government failure

to recognize or implement constitutionally or legally promised rights. Because the

issues with which courts grapple are complicated and multifaceted, many of the

judicial roles our authors analyze fit in more than one arena. Nonetheless, we

believe this typology helps us effectively summarize our chief findings concerning

the expanded roles in governance that some high courts now play.

Conflict Arena I: Disputes between Political Incumbents and Challengers

Especially (but not exclusively) in new and fragile democracies, disputes often arise

between political incumbents and challengers concerning the legitimacy and fair-

ness of potentially pivotal elections, and rights of political expression and organiza-

tion. Moreover, as Ginsburg (Ch. i in this volume) observes, after the displacement

of an autocratic regime, new democracies often face controversial questions oftran-

sitional justice (construed broadly), for example, concerning the binding quality

of laws or constitutional provisions promulgated by, and/or the legal immunity or

punishment of officials from, the old regime. When contenders push these political

controversies onto the dockets of high courts, judges face a choice between ruling for

regime stalwarts or challengers, behveen strengthening or weakening aspirations for

constitutional democracy, between entrenching the interests and values of incum-

bents or of new majorities. No matter what they choose, courts are thrust into a new

role in governance: influencing the struggle for political power. Several chapters in

this book, as summarized in the next few pages, illustrate ways in which courts have

been called on to play, and have played, this new judicial role.

Facilitating Democratic Transitions

In Korea, Taiwan, and Thailand, as shown by Ginsburg (Ch. i in this volume),

legal challenges to disputed elections (or as in Korea, impeachment proceedings)

led to crucial judicial decisions that determined who shall rule and who shall not. In

Ukraine, Georgia, and Kyrgyzstan, as Trochev describes (Ch. 2 in this volume, p. 68),

high courts "staffed with Soviet-era judges... cancelled rigged elections, thus open-

ing the way for a peaceful change of government." By resolving leadership succession

crises during tense moments of constitutional challenge, high courts can strengthen -

although of course not guarantee - prospects for a political regime characterized by

the rule of law and respect for constitutionally defined democratic processes and pro-

cedures. Indeed, whereas Ginsburg (Ch. i in this volume) indicates that the Korean

and Taiwanese high courts successfully played this role, acting as what he calls

"downstream [democratic] consolidators," the Ukrainian, Georgian, and Kyrgyzstani

high courts' success in doing so was significantly less enduring (Trochev, Ch. 2 in

this volume).

Introduction 9

More broadly, in many new democracies, independent high courts are widely

viewed as symbolizing the aspiration for government characterized by constitution-

alism, bound by the rule of law, and responsive to reason. Klug's chapter tells us that

in postapartheid South Africa, the Constitutional Court quickly became such a sym-

bol. Faced with a politically sensitive transition to majority rule, leaders managing

the transformation gave the Constitutional Court an extraordinary role - helping

make and legitimate the constihjtion itself. The 1993 interim constitution provided

for a democratically elected Constitutional Assembly to draft the new constitutional

text, but stipulated that the court would scrutinize the Assembly's work before certi-

fying that it had abided by the principles enshrined in the interim constitution (Ch.

3 in this volume, p. 103). Amidst great political pressure, the court boldly denied

certification of the new constitution drafted by the Assembly. Although it endorsed

the "overwhelming majority" of its provisions, it insisted that the Bill of Rights

must be further entrenched, that a controversial labor clause be subjected to (rather

than insulated from) judicial review, and that the supremacy of central government

law over centrifugal regional powers be protected (Id. at 104). The Constitutional

Assembly complied, revising the constitution along the lines the court dictated.

Further, Klug shows that early in the postapartheid era, the court issued a series of

assertive constitutional decisions that signaled its independence and commitment

to constitutional principles rather than political expediency. The Bill of Rights,

the court held, required invalidation of laws enacted by apartheid-era legislahires -

including the death penalty and numerous other criminal laws (Ch. 3 in this volume,

pp. 99-100). However, the court also invalidated some legislation that was passed by

the sitting African National Congress (ANC)-dominated Parliament and signed by

Nelson Mandela. The court held, for example, that newly empowered black-majority

governments in South Africa - both national and regional - were bound to respect

constitutionally guaranteed procedural and property rights of white citizens. The

court's evenhandedness, Klug observes, enabled it to play an important political

role: consolidating the core idea of constitutionalism and the rule of law in the

national political culture. In so doing, he argues, judges made the constitution and

court central symbols of the reconstituted nation's political identity (Ch. 3 in this

volume).10

Sparking Antiauthoritarian Movements

In authoritarian regimes with some elements of the rule of law and measure ofjudi-

cial independence, courts sometimes serve as what Cinsburg (Ch. i in this volume)

Ginsburg's chapter describes a similar role for the Korean Constitutional Court. "Since its estab-

lishment in late 1988," he suggests, the court "has become the embodiment of the new democratic

constitutional order," routinely being "called upon to resolve major political conflicts and issues

of social policy," including carrying out "a complete overhaul of the country's criminal proce-

dure... prompting. .. significant amendments to the National Security Act, and (establishing) an

important administrative law jurisprudence" (Ch. i in this volume, p. 104).

D Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan calls "upstream triggers for democratization." That is, court decisions can operate as

focal points for political movements demanding democracy (or a return to democ-

racy after authoritarian intervention). When courts label repressive governmental

actions against pro-democracy advocates illegal or unconstitutional - even if doing

so provokes retaliation from political leaders - their decisions "can provide clarity

as to what constitutes a violation of the rules," help legitimate regime opposition,

and "raise the costs of oppression" (Ch. i in this volume, p. 48).

How such a process unfolded in Pakistan is recounted by Ginsburg, and Mate

(Ch. 10 in this volume) discusses the Indian experience in that regard. In 1975, Indian

Prime Minister Indira Gandhi, perturbed that the Supreme Court had repeatedly

ruled her redistributive economic policies unconstitutional, and fearful that it would

affirm a lower court ruling that she had violated electoral laws to win reelection,

responded aggressively. She declared a state of emergency, assuming broad emer-

gency powers; packed the Supreme Court with allies and drove the legislature to

enact constitutional amendments and statutes that curbed judicial powers; autho-

rized preventive detention of political opponents; and suspended fundamental polit-

ical and due process rights. The Supreme Court, however, had established a record

of decisions defending constitutional and legal rights, and it enjoyed the support

of a lively legal complex (Halliday, Karpik, and Feeley 2007; Epp 1998). Popular

and elite support for the court and constitutional values enabled previously weak

opposition political parties to use Gandhi's attack on the courts and law as a rallying

point. Ultimately, they pushed Gandhi to end the period ofuntrammeled executive

rule, and then defeated her in the ensuing election.

Electoral Conflicts in Established Democracies

Even in established democracies, of course, courts are often drawn into disputes

between political incumbents and their opponents, between governments and their

critics, between those who regulate the boundaries of political activity and those

who challenge them. The more dense the statutory and constitutional law governing

democracy, the more easily political disputes can be transformed into plausible legal

claims - and the more often courts have the opportunity to play a significant role in

determining political winners and losers. In the United States, Bush v. Gore (2000)

provides a widely known example. The Supreme Court resolved an extraordinarily

close, intensely litigated presidential vote-counting dispute in Florida, propelling

George W. Bush into office. More broadly, as Kagan (Ch. 8 in this volume) notes, in

its 1962 decision in Baker v. Can and a series of follow-up cases, the U.S. Supreme

Court significantly reshaped the U.S. electoral process. It did so by mandating

decennial redrawing of electoral district lines to equalize district population size,

and by its expansive interpretation of the Voting Rights Act of 1965, which enabled

the government to draw electoral district lines designed to enhance the influence of

certain racial and ethnic minority voters.

Introduction 11

Conflict Arena II: Intragovemmental Disputes about Who Governs

Conflicts over the allocation of governing power occur in every political system,

but perhaps appear in more varied forms in systems with divided powers. For high

courts, resolving intragovernmental conflict in ways that frustrate powerful politi-

cians can be risky. However, as more countries have established judicial review,

courts are increasingly asked to officiate tugs-of-war between the elected branches

of government - and between the elected and judicial branches - over who defines

policy. Likewise, many federal systems experience policy conflicts between national

governments aiming to prescribe and enforce uniform rules and rights on the one

hand, and subnational governments seeking to enforce their own modes of gov-

ernment and values on the other. Accordingly, the question of who has primary

constitutional authority to govern with respect to particular issues and people is

often pushed onto the agendas of national high courts, enabling them to shape the

distribution of authority among government institutions.

Executive-Legislative Conflict

The authors of several of the empirical chapters in this volume describe judicial

efforts to resolve heated executive-legislative conflict at the federal or national level.

In Taiwan in 2004, for instance, the high court was called on to play this role in the

wake of an assassination attempt against presidential candidate Chen Shui-bian one

day before the presidential election (Ginsburg, Ch. i in this volume). After Chen's

victory in the extraordinarily close contest, opposition politicians filed a case with

the Taiwanese High Court alleging electoral irregularities - specifically, that the

shooting had been staged to create sympathy for Chen. Soon thereafter, once the

Taiwanese Executive and opposition-controlled National Assembly had established

dueling committees to investigate the shooting, a second legal challenge - this

one to the constitutionality of the Assembly's law creating its separate investigative

committee - asked the High Court to clarify the investigative powers of each branch

(and hence the ability of each to shape the political debate over the election). The

court declared the act partially unconstitutional (thereby limiting the legislature's

ability to encroach on either executive or judicial constitutional terrain), and also

rejected the suit calling for the nullification of the election results, thus allowing

Chen to retain office (Ginsburg, Ch. i in this volume, pp.56-57).

Since Chile's transition to democracy in 1990, its Constitutional Tribunal (TC)

has likewise been implicated in tense executive-legislative battles generated by the

1980 constitution written under the Pinochet dictatorship (1973-1990). In particular,

the TC has been repeatedly called on to resolve challenges to the constitutionality

of presidential decrees, requiring it to "interpret and rearticulate the power rela-

tionships set out by the authoritarian regime under the new political conditions of

competitive democracy" (Scribner, Ch. 4 in this volume, p. 114). The way the court

\ Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan played this power-distribution role changed over the post-transition period, culmi-

nating in its articulation of a co-legislative role for the Executive (Scribner Ch 4

in this volume, pp. 114-115), thereby reinforcing power inequities in Chile's already

strongly presidentialist system.

Judicial-Elected Branch Conflict

The more courts venture into policy-making and power-distributing roles, the greater

the risk of conflict between the judiciary and chief executives or legislatures over

who governs. For instance, as Reichman (Ch. 9 in this volume) explains, although

the Israeli government did not adopt a founding written constitution in 1948, by

1990 it had enacted nine Basic Laws that were understood to be building blocks for a

future constitution (Reichman, Ch. 9 in this volume, p. 238). Those laws established

a "weak form of judicial review" in which the Knesset (Parliament) could exempt

any statute from judicial review and overrule any Supreme Court ruling that had

used a basic law to nullify a governmental decision (Reichman, Ch. 9 in this volume,

p. 233). When the Knesset passed hvo additional Basic Laws concerning individual

rights in 1992, it reiterated the same limited judicial review formulation. However,

in the face of these limitations, Supreme Court Justice Aharon Barak (a former law

professor) "launched a scholarly campaign to establish... that the court had in fact

been granted 'unconventional' powers to strike down legislation infringing basic

human rights" (Reichman, Ch. 9 in this volume). The court subsequently drew

on Barak's arguments to hold "that all Basic Laws had ... become supreme over

ordinary legislation." In this way, the court dramatically expanded its own potential

role in governance - for example, as Hirschl (Ch. 12 in this volume) points out, to

defend liberal individual rights from the demands for religious orthodoxy (backed

by the growing electoral and legislative influence of religiously passionate political

parties). The Indian Supreme Court has also assumed roles once played by elected leaders

(Mate, Ch. 10 in this volume). First, although the Indian constitution authorized

Parliament to enact amendments by a simple majority vote, the Supreme Court

held that amendments it deemed to violate the "basic structure" of the constitution

were invalid. In this way, the court appointed itself guardian of original constitutional

principles against amendments it deemed to be motivated by partisan political goals.

Second, following the period of emergency rule (1975-1977) and Prime Minister

Indira Gandhi's ensuing electoral defeat, the court, seeking to reestablish its author-

ity, developed a public interest litigation (PIL) regime that dramatically expanded

popular access to the court and enabled it to broaden its own jurisdiction and reme-

dial powers. In two striking PIL cases, the court, asserting that the independence

of the judiciary is part of the basic structure of the constitution, ultimately wrested

control over judicial appointments from the Executive, thereby ensuring a larger role

for itself in the staffing process and correspondingly diminishing partisan political

leaders' influence over judicial composition.

Introduction i?

Additional conflicts have arisen behveen judicial and elected leaders as a result

of the advancing globalization of law. In the Netherlands, for instance, Huls

(Ch. 7 in this volume) describes how the Dutch high court (Hoge Raad) expanded

its lawmaking role via its formal obligation to incorporate European law and supra-

national judicial decisions into Dutch law. For example, by interpreting ECHR

opinions broadly, the court made liberal substantive changes in Dutch family law

that the national Parliament had declined to enact. Similarly, in France, Lasser (Ch.

ii in this volume) shows that the Cours de Cassation interpreted European law and

precedents broadly to expand fundamental rights in the French legal system. This

assertive French judicial action, in turn, placed political pressure on courts in neigh-

boring countries to do the same, and the ECJ and the ECHR endorsed member-state

court decisions that followed the French lead (Lasser, Ch. n in this volume, pp. 301-

302). The result was a "cycle of pressures" in which both domestic and supranational

judges chipped away at national parliamentary control oflawmaking.

National-Subnational Government Conflict

Although many of the countries considered in this volume are unitary systems, several

chapters offer intriguing examples of courts playing a role in resolving disputes about

the distribution of governing power between levels of government. Kagan (Ch. 8

in this volume) recounts the well-known story of how the U.S. Supreme Court

helped the federal government dramatically expand its governing reach, redefining

the balance of power behveen Washington and state capitals. Through one set of

rulings in the late 19303 reinterpreting Congress's constitutional spending power

and regulatory power over interstate commerce, the court authorized construction

of a much larger, increasingly dominant national administrative and regulatory state

(Kagan, Ch. 8 in this volume, p. 200). In its rulings on another set of cases in the

19605, the court reinterpreted the post-Civil War i4th Amendment to make most

provisions of the federal constitution's 1791 Bill of Rights binding on both state

and local governments. This enabled federal courts (as well as cooperative state

courts) "to help regulate unprofessional or repressive local criminal justice systems"

especially, but not only, in the South (Kagan, Ch. 8 in this volume, p. 201).

Conflict Arena HI: Complaints about Government Stasis

and Maladministration

In many modern societies, rising public expectations for justice, good government,

and particular policies or processes generate lawsuits that call on courts to remedy

perceived government nonresponsiveness or stasis, as well as maladminish'ation of

various kinds. Of course, identifying government stasis and maladministration may

imply a particular notion or theory of what government should do and how it should

do it. For our purposes, what matters are the new judicial roles that emerge when

citizens feel their government is locked in stasis, unlawfully neglecting important

Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

issues or sources of injustice, or is being poorly run, and assert those claims in

court.

Breaking Political Roadblocks Political scientists often point out that constitutional decisions in which high courts

"make policy" are not necessarily or even usually countermajoritarian. Judges can

take legal or policy initiatives that political leaders support but find difEcult to launch

on their own owing to constitutional restrictions or political constraints (Silverstein

2009; Graber 1993; Paris 2001). Indeed, political leaders themselves often implicidy

or explicitly invite courts into the political arena.

For instance, as noted previously, political leaders representing both major racial

groupings instructed the South African Constitutional Court to determine whether

a draft constitution complied with certain core principles (Klug, Ch. 3 in this

volume). In the Netherlands, Huls (Ch. 7 in this volume) teaches us that for years, a

recalcitrant minority faction in the governing parliamentary coalition had blocked

demands for legislation that would shield from prosecution physicians who provide

or aid in voluntary euthanasia for suffering, terminally ill patients. By deciding indi-

vidual euthanasia cases to protect the b-eating physicians, Huls observes, the Dutch

Hoge Raad played the role of political "scout" for Dutch leaders, venturing into pol-

icy territory riddled with political risk, blazing a trail politicians could follow. With

the court out in front, politicians could gauge political and public reaction before

moving decisively to enact legislation codifying the court's rulings (Ch. 7 in this

volume).

The United States provides another (and well-known) example of political-

deadlock-breaking high court action (Kagan, Ch. 8 in this volume). In the decade

following the Second World War, many Northern states passed civil rights laws,

and Cold War geopolitical competition pressured national political leaders to

eliminate the embarrassing injustices of Southern racial apartheid. However, the

Democratic majority in Congress was split: a determined minority used the Senate

filibuster and their dominance of key leadership positions in the House and Senate

to repeatedly block congressional civil rights legislation attacking segregation.

Moreover, constitutional questions existed concerning Congress's power to regulate

local school-assignment policy. In Brown v. Board of Education (1954), the Supreme

Court gingerly grasped this political hot potato, declaring official racial segregation

in public schools unconstitutional and "reflecting a moral conviction that a great

many national political leaders shared but remained unable to implement through

congressional legislation" (Kagan, Ch. 8 in this volume, p. 218)."

" The political deadlock in Southern states did not quickly end with the court's decision, of course,

which met with massive and often violent resistance. Nonetheless and despite some evidence to the

contrary (Rosenberg 1991), Kagan (Ch. 8 in this volume) concludes that the ruling was ultimately

consequential, stimulating the Civil Rights Movement and framing the politics of civil rights in the United States. See also Klarman 2007.

Introduction 15

Battling Corruption and Maladministiation

In both Italy and India - as described by Guarnieri and Mate in Chapters 6 and 10,

respectively, in this volume - courts have proactively provided new remedies against

politicians and bureaucrats whose corruption and/or failure to implement national

laws had generated public frustration. In Italy, the primary judicial actors were lower

court judges who, in the European civil law tradition, combined investigative and

prosecutorial powers with their judicial powers. The cataclysm of Fascism and World

War II, Guarnieri points out, led to a postwar Italian political system that splintered

power among numerous ideologically disparate parties, established a constitutional

court, and greatly enhanced the independence of the judiciary. Those changes,

Guarnieri shows, also weakened hierarchical controls on lower court judges and

prosecutors, ultimately giving them the discretion, experience, and power to launch

hundreds of corruption investigations and prosecutions against important political

party leaders and government officials in the 19905. This wave of initiatives, as

Guarnieri puts it, thrust the Italian judiciary - even if not completely successfully -

into the role of imposing a moralistic kind of legal accountability on the political

class (Ch. 6 in this volume).

Mate's chapter shows that beginning in the 19805 and continuing into the next

decades, the Indian Supreme Court sought to impose the rule of law on way-

ward government officials and agencies in a strikingly different way - by mobiliz-

ing private citizens to serve as enforcement agents. Indian judges reinterpreted

the constitution to facilitate access to courts by dramatically expanding stand-

ing to sue, and to authorize novel judicial remedies. In the 1981 "Judges Case,"

Mate tells us, the court asserted that anyone with sufEcient interest could file

claims to redress injury to the public caused by government illegality in breach

of important public duties, and pledged that the court would readily respond

(Ch. 10 in this volume, pp. 272-273). The court's procedural rulings encouraged

private citizens to file scores of PIL cases documenting governmental corruption

and appalling maladministration. In response, the Supreme Court mandated the

creation of new watchdog institutions designed to clamp down on official corruption,

spur better enforcement of environmental laws, remedy mass violations of criminal

defendants rights, and more - acting, in effect, as chief "social auditor" (Mate, Ch.

10 in this volume, p. 273).

Conflict Arena IV: Cultural and Religious Cleavages

Frequently, the studies in this volume suggest, the legal issues high courts face reflect

deep cultural tensions - between religious and secular values in shaping law and

public policy, for example, or between preferences for national cultural or religious

uniformity versus demands for subgroup or individual autonomy. Similarly, court

cases often reflect conflicts between the neutrality demanded by political liberalism

and the norms prized by particular religious, ethnic, or cultural subgroups. As

\^ Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan antagonists in these clashes push their claims before the judiciary, high court judges

are asked to play a balancing role: either to find points of accommodation behveen

conflicting worldviews, or else officially prioritize one view over another in national

political, legal, and social life. Hirschl (Ch. 12 in this volume), for instance, discusses the rapid rise of funda-

mentalist sentiments and political pressures in a number of predominantly Islamic

countries with secular rulers or ruling parties (Egypt, Kuwait, Pakistan, Malaysia).

These major social changes generated cases that induced high courts - most staffed

by judges professionally socialized to secular rule of law values - to adopt a new

role in governance: protecting secular or moderate Islamic practices or legal pref-

erences from subordination to fundamentalist religiosity and practices. In some

cases, constitutional changes establishing Shari'a law as "the" official source of

law made it even more difficult for secular courts to preserve their legal authority

and their own (and political leaders') more secular values. However, the Pakistan

Supreme Court, to cite one example, nevertheless held that basic constitutional prin-

ciples remained supreme over Shari'a law, blocking, at least formally, a coalition of

Taliban-sympathizer parties in the North-West Frontier Province from enacting laws

designed to "enforce Islamic morality" (Hirschl, Ch. 12 in this volume, p. 320). The

Dutch Hoge Raad could also be seen as playing a role in this arena when it blocked

prosecutions of physicians for euthanizing terminally ill patients, thus bypassing

a legislative deadlock between political factions defending religious beliefs in the

sacredness of human life and factions committed to secular humanism (see Huls,

Ch. 7 in this volume).12

The U.S. Supreme Court has had somewhat rougher sailing into the crosscurrents

of cultural conflict between secular liberal values on the one hand and conservative

traditional morality on the other. Similar to the courts described by Hirschl and

Huls, the U.S. Supreme Court has tended to side with the secular position.

For instance, it issued sweeping rulings banning prayer and Bible reading in all

public schools (Engel v. Vitale, 1962; Abington School District v. Schempp, 1963).

It also made controversial decisions restricting state laws that had criminalized

pornography (Roth v. U.S., 1957; Miller v. California, 1973), abortion (Roe v.

Wade, 1973), and (more recently) consensual homosexual relations (Lawrence v.

Texas, 2003). As Kagan notes in Chapter 8 in this volume, the court's decisions in

these realms stimulated intense political backlash. In regions in which evangelical

Christianity is politically strong, state and local legislatures have erected obstacles

in the path the court "scouted" and forcefully paved, and the court has been

made a symbol of secular Godlessness in the ensuing culture wars that pit local

traditionalism against the tolerance preached by most national political elites.

Nonetheless, the court's opinions in these areas reflect a new judicial role:

12 Analogously, Huls tells us, the high court helped resolve tensions between proponents of religiously

based traditional norms in Dutch family law and advocates of gender equality, holding that ECHR opinions on family law trumped Dutch family law (Ch. 7 in this volume, p. 187).

Introduction i7

helping frame the national political debate on controversial cultural issues, and

lily endorsing practices and proponents of pluralism rather than sectarian

orthodoxy.

Conflict Arena V: Disputes about Rights and Equality

Many constitutions require elected governments and administrative officials to rec-

ognize individual rights to due process and equal treatment, to allow individuals to

voice controversial opinions and criticize the government, and to allow freedom of

worship. Conflict develops when political leaders, law enforcers, and bureaucrats

in constitutional democracies seek to curtail claims to these rights and freedoms,

arguing that such assertions threaten public order, national security, civility, or the

realization of high-priority public objectives. Adjudicating these types of disputes

compels judges to play the role of articulating critical compromises.

Moreover, since the mid-hventieth century, new constitutions have often included

not only procedural, civil, and political rights but social and economic rights as

well. Such positive rights" offer citizens and groups a legal foothold to demand

public goods ranging from adequate housing to a fair wage, a decent education, and

healthcare. However, because these positive rights can carry a significant price tag

for governments, judges sometimes face a difficult choice behveen fiscal prudence

and constitutionalism. When courts mandate generalized provision of goods or

services on the basis of these rights, political leaders must weigh the economic cost

of complying against the potential political cost of, and damage to constitutionalism

caused by, rejecting or ignoring such judicial mandates.

Chapters in this volume on the United States, South Africa, India, Israel, and

some European countries describe critical judicial engagement with the challenges

of supporting rights (and declaring their limits). To give just a few examples, in South

Africa, Klug asserts, the Constitutional Court has been the "premier institution"

defending human rights in the postapartheid era (Ch. 3 in this volume, p. 100).

Similar to its U.S. counterpart, the South African court has played a crucial role

in race relations, seeking to temper racial conflict and foster racial equality in the

transition from white minority rule to democratic government dominated by black

majorities. As noted earlier, the court has decided cases in favor of white litigants

seeking the rights and protections afforded political minorities by the new consti-

tution, but has also tried to eradicate the harsh legacies of apartheid. For example,

it has sought to extend postapartheid governing principles to localities and remote

rural areas,13 struck down the death penalty, invalidated legislation in violation of

'3 In the Zondi case, for instance, the court considered a challenge to a set of legal provisions (the

KwaZulu-Natal Pound Ordinance) that allowed landowners to seize, impound, and eventually sell

animals that trespassed on their land - thereby facilitating white landowners' exploitation of rural

communities who held their wealth in livestock. "Seeing in the case the perpetuation of the colonial

system of exclusion and dispossession" in rural South Africa, the Constitutional Court ruled the

provisions unconstitutional (Klug, Ch. 3 in this volume, pp. 107-108).

v Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan the equality clause of the constitution, expanded rights-claimants' access to courts,

protected precolonial grazing rights, and reinforced rights to political participation,

certain socioeconomic resources, and marriage (Klug, Ch. 3 in this volume).

Further, as Mate (Ch. 10 in this volume) summarizes, beginning in the 1977 to

1979 period, the Indian Supreme Court established a new "activist jurisprudential

regime in the area of fundamental rights." It expanded the constitutionally pro-

claimed "right to life and liberty" and broadened rights-based scrutiny of government

action under several constitutional articles (e.g., equality before the law) (Ch. 10

in this volume, p. 271). The court also focused on procedural rights. As noted, it

reinterpreted the constitution to broaden standing to sue (thereby expanding access

to the judiciary). In one ensuing PIL suit filed by a crusading journalist, the court

took the lead in establishing new guidelines for bail, ordered that thousands of

criminal suspects be freed from extremely lengthy pretrial detention (Ch. 10 in this

volume, p. 273), and helped do away with the practice of "protective custody." Over-

all, Mate concludes, the Supreme Court's activism "resulted in the creation of a

new corpus of constitutional rights and equitable remedies" (Ch. 10 in this volume,

p. 285). Castillejos-Aragon (Chapter 5 in this volume) tells a similar story about the

Mexican Supreme Court's extraordinarily proactive promotion of a new rights

jurisprudence following the advent of more competitive party politics in that country

in the early zooos.

CHANGING JUDICIAL ROLES: A FRAMEWORK OF CAUSAL FACTORS AND FORCES

Taken as a whole, the examples discussed so far demonstrate significant cross-

national variation in judicial roles in politics and policymaking. They also illustrate

role expansion in particular country cases, suggesting that judicial roles are far from

static. As Epstein et al. (2001) theorize, for instance, by repeatedly issuing decisions

that fall within the "tolerance intervals" of important power centers, a constitutional

court's legitimacy can increase over time, allowing it to make decisions on a broader

array of issues. However, politicians' and publics' tolerance for judicial assertiveness

can also quickly narrow - usually on particular issues rather than in general - but

in either case shrinking the court's protective legitimacy shield and impelling it to

play a role less boldly, or to reverse itself and abandon a role entirely. In short, over

time, judicial roles can be added to and extended - as well as stripped, superseded,

or replaced, in part or completely.

The next logical question, then, concerns what causes these shifts, expansions,

and contractions in judicial roles. The answer is far from clear. Our empirical

chapters point to complex constellations of political conditions, forces, and factors

that encourage, enable, or even compel some high court judges to breach the

constraints of judicial tradition and risk political reprisal in order to impose their legal

Introduction i9

solutions on controversial issues of governance. Other factors and forces discourage,

impede, or prevent other courts from doing so. Indeed, as difficult as this causal

question was to answer in an era when there were relatively few nations with courts

deeply engaged in social policy and governance, the task has become increasingly

challenging as the number of consequential courts - and the consequential roles

they play - have expanded exponentially in the last twenty years. Correspondingly,

we feel that at this point in the development of our collective empirical knowledge,

it is not yet feasible to generate an elegant, parsimonious, and reliable theory of

change in judicial roles in governance.

Instead, we suggest a three-dimensional framework for thinking about the fac-

tors and forces that help explain marked shifts in the consequential roles courts

play in governance: (i) the relatively broad and enduring national institutional

and political structures (such as constitutional strictures and political power con-

figurations, and the autonomy, size and scope of judicial institutions) as well

as international political and institutional structures that constrain and empower

courts; (2) the contemporary political dynamics that press courts to expand their

roles and take on greater responsibility for governance and public policy - or

work to prevent such changes; and (3) the incentives, capacities, and motives of

individual judges, and intra-court interactions. Each category includes several fac-

tors whose relative importance varies across time and contexts. We believe they

resist condensation into what would inevitably be a premature and overly simplistic

model.

We attempt to capture this complex framework for organizing the interacting

forces and factors that influence change in judicial roles through a "nautical

metaphor," schematically illustrated by Figure I.i. In our metaphor, high courts

are visualized as sailing vessels navigating the political high seas. The ocean and

its currents represent the first causal dimension, deep structural dynamics, defined

by the type of regime that built each particular ship, and the constitutional and

international context in which judicial ships sail. A second causal dimension com-

prises the forces that create opportunities and challenges for ships navigating these

waters. These short-term political dynamics are represented in our schematic by the

winds of demand for greater judicial participation in politics and policy, and winds

of resistance that slow or prevent change in judicial roles. These winds can increase

or decrease in intensity and change direction as political and economic squalls

arise and fade. Finally, on the third causal dimension, judicial role change may be

influenced by the skills of those who sail judicial ships. Structural preconditions and

short-term opportunities do not dictate judicial behavior. Instead, judicial ships need

a skilled and visionary captain and crew: the preferences, values, and incentives of

judges are a critical dimension that must be examined.

An ocean is vast and deep, and political-structural factors below the surface (our

first causal dimension) powerfully affect the choices and capacity of judicial captains

v Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

>^=f^^=£.- •-=~ys-

FIGURE 1.1. The Dynamics of Changing Judicial Roles: A Nautical Metaphor. Art by

David Hellman

and crews. Ships built in politically stable, competitive, constitutional democracies

with strong traditions of legality and judicial independence are better able to navigate

rough seas and unfavorable sea lanes. Similarly, the international context - political,

economic, legal, and judicial - can significantly influence the currents in the sea

on which judicial ships sail.

The winds of demand for judicial role expansion (part of our second causal dimen-

sion) can arise from a number of sources. As we have seen, pluralistic states typically

experience multiple types of tensions and conflicts - between political incumbents

and their challengers, different political institutions and factions, secular and reli-

gious values, rights claimants and forces of order. In countries whose constitutions

include rights and liberties and establish judicial review, such conflicts increasingly

give rise to demands for novel judicial interventions. These strong (but still variable)

winds of demand are generated by those in power as well as those in opposition. They

can have their genesis with political actors who see the courts as an ally, or a means

to achieve what cannot be easily accomplished through the political process alone.

Alternatively, they can be the product of litigation campaigns organized by strong

interest groups, or can arise from social protest movements, businesses, or other

civil society actors (including what Halliday [Ch. 13 in this volume] describes as the

legal complex). All of these actors can demand that courts take on new roles beyond

traditional dispute resolution and law enforcement, thereby pushing for role expan-

sion. Courts that catch the winds of demand for their involvement in politics may be

driven rapidly toward the far shores of expanded roles in governance. Those that do

Introduction 21

not might be becalmed, drifting away from a course toward greater involvement in

governance.

However, sometimes courts that are propelled by gusting winds of demand agree

to decide cases that are so politically or culturally controversial that they stir up strong

winds of resistance, roiling the seas.14 Powerful political institutions can attack them

for having acted undemocratically, illegally, and arrogantly, fighting the expansion

of judicial roles in governance, criticizing the ways in which judges play new roles,

denouncing the policies their rulings embody, or all three. Similar to actual winds,

resistance can develop slowly and steadily or with alarming speed, particularly at

moments when transformative governments sweep into power (Whittington 2007).

That the winds of resistance are often both expected and unpredictable in strength

is a perpetual tension that underlies judicial role expansion, even when high courts

have acquired a full ballast of legitimacy.

However, calm seas and favorable winds are not enough to explain variation

in the roles that courts play and how consequential they are, bringing us to our

third causal dimension. Judicial captains and their crew must make critical strate-

gic calculations when political demands push them into potentially stormy seas:

should they drop anchor and wait out the storm, press forward (trusting they have

the political support and institutional capacity to do so), change course, or return

to safe harbor? If they decide to proceed, what strategies, tactics, and techniques

should they adopt in order to do so? Even the most charismatic judicial leader

must convince other judges (her crew) of the wisdom of their charted course.

Judicial opinions must be shaped and reasons must be given (Shapiro 1992). Skill-

ful captains and officers can sometimes maneuver even less-stable judicial ships

through squalls of resistance. Other less-sawy, less-flexible judicial crews may be

unable to extricate even well-built vessels from unexpected political storms, or

may have to completely change course (or suffer damages) when they encounter

them. In short, the tacks that judicial ships take - and their ability to mitigate the

risks involved in making assertive, role-expanding rulings - also depend heavily on

their leadership; the judicial and political values, incentives, and preferences of

judicial majorities; and those majorities' navigating skills and the techniques they

deploy.

In sum, the voyage of each of our courts is determined by multiple and interact-

ing opportunities and risks, generated by structural factors and short-term political

currents and winds, and ultimately dependent on the skill and capacity of the judges

14 Indeed, the more the "countermajoritarian difficulty" (Bickel 1962) - the ostensible illegitimacy in

a democracy of unelected judges overriding and restricting the decisions of democratically elected

leaders (which Shapiro [Ch. 16 in this volume] identifies as the normative part of the "mighty problem of judicial review") - is recognized in a nation's political and legal culture, the worse resistance there

may be against assertive role-expanding judicial decisions understood as illegitimate "judicial activism"

or undemocratic judicial imperialism."

v 22 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

who confront these challenges and embrace (or ignore) these opportunities. Admit-

tedly, the boundaries among the three categories of factors and forces in our causal

framework - particularly between deep political structures (our ships and the ocean

upon which they are launched) and short-term political dynamics (our winds) -

are blurry. For example, important changes in macro-political structure (such as

transition from autocracy to democratic government) are often triggered by (and

often, in turn, trigger) short-term political action; if regime change is recent, the

two types of factors are entangled. The categories, in other words, are not mutually

exclusive. Moreover, shifts in judicial roles are typically produced by an interaction

among factors in at least hvo categories, if not all three. Hence, the implicit causal

model is complex, and our attempt to disentwine causal factors and discuss them

separately somewhat artificial. Further, inherent in our model is some endogeneity:

each ruling that is obeyed (or at least not fully defied), particularly if it stands up

to political and legal challenge, can add to a court's legitimacy - that is, increase

a judicial ship's ballast - enabling it to better withstand countervailing pressures.

Nevertheless, our simple framework provides a map for identifying and illustrating

patterns in how difiFerent types of factors influence judicial role expansion in our

empirical studies. In the rest of this section, we elaborate a bit on each of the three

types of factors mentioned, providing illustrative examples drawn from the volume's

chapters.

Structural Factors

Relatively enduring features of the institutional and political structure within which

courts operate often influence the roles they play. We highlight three types of factors:

(a) Major domestic political regime features - in particular: (i) whether the regime

is autocratic or democratic; and if the latter (ii) whether it is a unitary or federal

system; (iii) whether it is a parliamentary or a separation of powers system;

(iv) the degree to which political authority and power are concentrated or

fragmented; (v) whether it is a new or established democracy; (vi) whether it

is an illiberal or fully consolidated democracy;

(b) The political status and legal powers of the judiciary - most broadly: (i) the

high court's historical degree of independence from political intervention or

influence; (ii) the court's powers of judicial review of legislation (be they

long-standing or only recently granted or ambiguous); (iii) the relative density

and specificity of court-empowering provisions in the constitutional text; and

(iv) the court's degree of support from a politically active legal complex of

lawyers, judges, and legal academics;

(c) Supranational and international forces - demands and constraints stemming

from international treaty obligations, supranational structures, and national

dependencies on other states and their political, cultural, and economic actors.

Introduction 23

Although we define structural factors as relatively enduring features of the political

landscape in which courts and judges act, the empirical studies in this book portray

marked changes in political structures (or indeed in entire political regimes) as salient

generators of opportunities - or demands - for courts to take on expanded political

roles. Most important in this regard, our studies suggest, are shifts from autocratic

regimes to some form of constitutional democracy. To review just a few examples,

in Taiwan and Korea (Ginsburg, Ch. i in this volume), and in the wake of political

upheavals such as the Orange Revolution in Ukraine and the Rose Revolution in

Georgia in the 2000$ (Trochev, Ch. 2 in this volume), high courts were thrust into the

role of resolving intense election-related disputes, thus deciding who governs. It was

South Africa's dramatic transition from apartheid to a new constitutional democracy

that pushed the Constitutional Court into the roles of evaluating the constitutionality

of the draft constitution produced by the newly elected Constitutional Assembly

and then making epochal decisions on controversial rights issues (Klug, Ch. 3 in

this volume). After the 1990 transition to democracy in Chile, the Constihitional

Tribunal was repeatedly asked to interpret vague constitutional provisions regarding

the relative legislative power of Congress and the Executive, making consequential

choices behveen competing political and ideological projects" (Scribner, Ch. 4

in this volume, p. 116). The restoration of democracy after India's emergency rule

period in the late 19703 created the opportunity for the Supreme Court to make a

comeback from its emergency-era defeats by inviting a wave of PIL that enabled it

to assume a remarkably activist social-reformer role.

It is taken as a truism among public law scholars that the fragmentation ofpoliti-

cal authority (divided government in a separation of powers system, weak multiparty

coalitions, or factionalized ruling parties) decreases the likelihood that political

leaders can swiftly nullify or reverse assertive judicial rulings, thus offering courts

greater opportunity to play active roles in governance. One reason, therefore, that

transitions to democracy stimulate judicial role expansion is that power is by defi-

nition more fragmented in democratic regimes (even fragile or partial democracies

or what Trochev, Ch. 2 in this volume, labels "incomplete autocracies") than it

is in any other type of political system. Transitions to democracy stimulate the

creation of new governmental structures, multiple political parties, and more polit-

ically engaged news outlets - all of which can provide more potential supporters for

assertive court decisions.'5 In Mexico, as Castillejos-Aragon notes, the emergence

of a competitive party system in the later 1990$ made it much harder for the party

in power to dominate the Supreme Court, giving activist judges the political space

15 Of course, more fragmentation of power, particularly in new democracies, can also generate a different

kind of risk for assertive courts; that is, a greater likelihood that their decisions on controversial issues

will deeply discomfit one or more power centers, even if they are pleasing others. Consider the unpleas-

ant experience of Russia's first post-Soviet Constitutional Court in that regard, as described by Epstein

et al. 2001.

\ 24 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

to invite constitutional challenges to governmental policies and practices (Ch. 5 in

this volume).

However, even in longer-established democracies with stronger traditions ofjudi-

cial independence, fragmentation in ruling parties and coalitions appears to be an

important factor in stimulating and sustaining judicial role expansion. To give just

a few examples from this volume, division in parliamentary coalitions created the

conditions under which the Dutch Hoge Raad could break political deadlocks on

controversial moral "hot potato" issues without significant fear that its rulings on

social policy would be reversed (Huls, Ch. 7 in this volume). Likewise, disagree-

ments among parliamentary parties and within the governing coalition concerning

completion of the Israeli constitution provided the opening for the Israeli Supreme

Court - led by Justice Barak - to make bold interpretive rulings expanding its own

powers of judicial review and more fully entrenching the Basic Laws as constitution-

ally dominant (Reichman, Ch. 9 in this volume). In another example, Guarnieri

describes how the collapse of the dominant Italian political parties in the 19903 and

the resulting political fragmentation enabled judge-prosecutors to launch a massive

wave of corruption prosecutions against high government and party officials, for

in that period the risk of parliamentary resistance or retaliation was significantly

diminished (Ch. 6 in this volume, pp. 168-169,177).

Another structural factor - fragmentation of authority within or among judicial

systems - can also have a significant effect on the roles courts play. Hirschl describes

how in the predominantly Islamic countries he studied - and in Malaysia in partic-

ular - secular civil courts sought to erect jurisdictional barriers behveen secular and

Islamic judicial systems in hopes of preventing Shari'a court systems from expanding

their jurisdiction (Ch. 12 in this volume, pp. 321-323). In Europe, where lawmaking

and adjudicative authority is fragmented among multiple European political insti-

tutions (including the ECJ and ECHR) and domestic legislatures and courts, Dutch

and French courts have been able to create new rights and obligations in French and

Dutch law through the expansive interpretation of European law and supranational

court precedents with minimal risk of reversal or retaliation by the Dutch or French

governments.17

16 An earlier move toward political fragmentation, Guarnieri explains, had given the judge-prosecutors

the capacity to mount these prosecutions. The disassembly of hierarchical, top-down control within

the Italian judiciary in the late 19605 and early 19703 (in tandem with growing Communist influence

on the political process and increasing terrorism and organized crime) inspired lower-court judges

and prosecutors to coordinate, allowed them to play a more active investigative role, and augmented

judicial influence over the police (Ch. 6 in this volume).

17 In fact, Lasser asserts, "The simultaneous and interrelated convergence of... domestic and European

courts on the fundamental rights idiom has made it increasingly difficult to treat the domestic and

international judicial orders as truly external to each other," suggesting continuing evolution in the

roles of both sets of courts (Ch. n in this volume, p. 309). Interestingly, Huls (Ch. 7 in this volume)

suggests that being part of the European system - implying a responsibility to attend to the ECHR

Introduction 25

Another structural factor, which might be called the formal constitutional infras-

tructure, can expand (or restrict) courts' opportunities to play new roles. Trochev, for

example, suggests that explicitly prescribed textual barriers against nondemocratic

rule and intrusions on judicial independence, bills of rights, judicial review pow-

ers, and judicial jurisdiction over electoral disputes enabled courts to play dramatic

roles in critical elections in all three of the post-Soviet polities he analyzed (Ch. 2 in

this volume, p. 70). Chile's constitution, Scribner tells us, specifically assigned the

Constitutional Tribunal jurisdiction over legislative-executive conflicts, only vaguely

prescribing the relative lawmaking authority of each branch. Thus, the constitution

simultaneously drew the court into the politically sensitive role of deciding "who

governs" in particular cases, and allowed it to play that role with considerable latitude

(Ch. 4 in this volume, pp. 116-117).

The case-study chapters draw our attention to one final structural factor to which

we have already alluded: the increasingly watchful and influential set of suprana-

tional and international actors, governmental and nongovernmental, committed to

protecting and fostering democracy and expanding human rights. For instance, Klug

suggests that international recognition of the South African Constitutional Court's

rulings helped it develop and maintain a leading rights-defense role in that country

in the postapartheid era (Ch. 3 in this volume, p. 94). Trochev suggests that atten-

tion from the West - Western election observers' and negotiators' observance and

publicity of electoral irregularities and the subsequent struggle over election results

in Ukraine in 2004 and Georgia in 2003 - facilitated Supreme Courts' performance

of a mediating role (Trochev, Ch. 2 in this volume, p. 82).

Proximate Political Dynamics

Nested within relatively enduring structural conditions, shorter-term political pres-

sures can also engender urgent new demands for expanded judicial action or, con-

versely, compel a court to retreat. We refer here to dynamics such as: (a) current

political leaders' intense support for (or opposition to) a court's performance of a

particular role (including efforts to appoint or eject particular judges, or to expand or

retract judicial powers or independence); (b) vigorous social or political movements,

including media or litigation campaigns or pressures on particular issues by what

Halliday (Ch. 13 in this volume) has called the national legal complex (lawyers, law

professors, and the judiciary as a whole); and (c) strong expressions of public opinion

on politically, socially, or morally contentious issues.

Sometimes current political leaders push courts to assume assertive roles in gov-

ernance, encouraging them to make legal decisions that might resolve politically

and UN Treaty on Civil and Political Rights, in particular - can limit the ability of domestic courts to

choose and develop their own roles.

\. 26 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

divisive issues (or at least reduce political pressures on the leaders). Both President

Truman and President Eisenhower's Attorney Generals filed amicus briefs in the

U.S. Supreme Court in the case of Brown v. Board of Education, urging the court

to overrule Plessy v. Ferguson and declare state-mandated school segregation on the

basis of race unconstitutional (Kagan, Ch. 8 in this volume). Guamieri discusses

how the Italian courts' corruption-fighting role was supported by significant segments

of the political class; opposition parties in particular were enthusiastic about shift-

ing the responsibility for highlighting and investigating politicians' transgressions to

unelected judges who might be less constrained by political concerns (Ch. 6 in this

volume). Even more stunningly, Trochev recounts how President Akaev ofKyrgyzs-

tan ordered the Supreme Court to review the results of elections in districts where

outcomes had led to societal outcry (Ch. 2 in this volume, p. 85). In other instances,

a posteriori support for courts from government leaders can influence judicial roles.

After the South African Constitutional Court struck down an act that granted the

president authority to redraw regional electoral district lines and also invalidated

orders in that regard that President Mandela had issued, Mandela publicly praised

the court's decision as properly defending the principle of constitutional governance

(Klug, Ch. 3 in this volume, p. 100), no doubt fostering its role in electoral politics.

Indeed, even quite subtle signals from political leaders can influence judicial roles.

Reichman highlights how a "nod" from the Attorney General and tacit approval from

politicians encouraged the Israeli high court to engage in some forms of judicial

review decades before the country's "constitutional revolution" in the 1990$ (Ch. 9

in this volume, pp. 239-240).

Conversely, government and political leaders - driven by immediate politi-

cal desires - can move aggressively to prevent, discourage, or limit judicial role

expansion. Beyond overriding high court rulings that do not match their policy pref-

erences in hopes of swatting back judicial reach into political afifairs, they may seek to

replace judicial personnel or alter appointment procedures, or introduce changes in

a court's jurisdiction. For instance, a newly elected president in Georgia, Trochev's

chapter tells us, turned on the very Supreme Court judges whose decisions helped

propel him into office. He dismissed half of them, packed the court with partisan

loyalists, removed its jurisdiction over electoral disputes, and constricted judicial

review. Trochev tells a similar tale of court curbing by insurgent leaders whom the

court had helped into power in Ukraine (Ch. 2 in this volume, p. 83). Ginsburg

shows that both Thailand and Pakistan's high courts met similar fates under similar

conditions (Ch. i in this volume).

Of course, court-curbing measures are adopted or attempted in more established

democracies, as well. The Indian Supreme Court, as Mate shows (Ch. 10 in this

volume), was defied, overridden, reconstituted, and weakened by Prime Minister

Indira Candhi in 1977 during the period of emergency rule. President Franklin

Roosevelt's threat to expand and pack the U.S. Supreme Court and his appointment

of New Deal allies as justices terminated the court's self-appointed role of policing

Introduction 27

the reach and substance of federal and state regulatory powers (Kagan, Ch. 8 in

this volume). After regaining power in Italy in 2001, Prime Minister Berlusconi

introduced policies designed to systematically de-emphasize judicial investigations

and compromise judicial guarantees of independence - although, as Guarnieri

out, he was not successful in that regard (Ch. 6 in this volume).18

In addition to the pressures exerted on courts by current political authorities,

upsurges in demands from civil society actors and political movements can also

induce shifts in judicial roles. Hirschl's chapter describes how the rapid rise of

fundamentalist Islamic sentiments in Egypt, Kuwait, Pakistan, and Malaysia led to

demands for broader application of Shari'a law (Ch. 12 in this volume). As noted

earlier, the resulting disputes compelled or provoked high courts to adopt a new

role in governance - mediating conflicts between religious and secular groups and

values. However, at the urging of moderate political leaders, statist elites, secularist

elements of civil society (especially the urban intelligentsia), and powerful economic

stakeholders, by and large high court judges have played that role by interpreting

Shari'a law in ways that preserve the legal authority of the secular courts and their

own (and political leaders') more secular values.l9 In a different context, Reichman

recounts how Israel's shift toward market-based economics led business interests to

demand stronger judicial protection of economic rights (property, freedom ofvoca-

tion), which in turn provided support for the Supreme Court's assertion of judicial

review powers and a stronger rights-protection role (Ch. 9 in this volume, p. 242).

Mate describes how growing media attention to the Indian government's human

rights abuses (for instance, atrocities by state and local police and abhorrent prison

conditions), as well as to corruption and malgovernance, produced a surge in PIL

that helped propel the Indian Supreme Court into the role of government reformer •

with the support of most of India's legal complex and educated elites (Ch. 10 in this

volume, p. 27i).20

Trochev relates perhaps the most dramatic series of events, in which politicians

and citizens together sought both to implicate courts in and remove them from the

18 Of course, political leaders do not always have to act in order to constrain courts: courts can sometimes

anticipate potential political backlash and self-restrain. For instance, Reichman asserts that in several

instances in the early zooos, the Israeli Supreme Court decided judicial review cases in ways that

contrasted with its previous jurisprudence at least in part because of how it expected "relevant political

forces (primarily the security establishment, the treasury department or the religious sector)" to react;

the court, Reichman suggests, had "reached its political limit" (Ch. 9 in this volume, p. 257).

*9 More recently in Malaysia, however, Hirschl (Ch. 12 in this volume, p. 323) notes, mass mobilization

of Islamists about the scope of Shari'a jurisdiction made playing that role in that way "no longer a

feasible option for the [Federal Court]. It has opted instead for a strategy of mixed measures and

vagueness."

20 Of course, civil society can also impose limits on judicial will, or seek to do so. Kagan's chapter

mentions several examples of backlashes and unintended efFects stemming from civil society reactions

to U.S. Supreme Court rulings (Ch. 8 in this volume). Reichman shows how in the walce of Israel's

court-facilitated constitutional revolution, important facets of the legal complex together with the

media grew more critical of the court (Ch. 9 in this volume, p. 256).

\. 28 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

litical scene. Following contentious parliamentary elections in February 2005,

candidates who lost flooded the Kyrgyzstani courts with complaints, and a crowd

of 3,000 citizens pressured the Aravan district court into hearing a case of alleged

misconduct in that constituency. Soon after, about eighty protesters stormed the

Supreme Court building in an effort to pressure the entire court to resign - ulti-

mately occupying the building for more than a month before a zoo-strong "people's

militia" overtook the building and ejected them (Ch. 2 in this volume, pp. 83-86).

These actions, Trochev suggests, almost certainly influenced the roles these courts

subsequently played in politics.

Courts' Internal Incentives, Capacities, and Motives

Structural features of institutional and political systems and contemporary political

dynamics can generate openings, invitations, and pressures for shifts in judicial roles

in governance: these external factors may open the door and tempt judges to cross

the threshold. However, judges themselves must decide whether to pass through

the door, potentially risking criticism, defiance, or a reduction in authority. In other

words, judges' own incentives, capacities, and motivations are crucial to judicial

role expansion and contraction. Throughout this volume, authors refer to a range of

intra-court sources of shifting judicial roles, including: (a) galvanizing leaders within

the court; (b) evolving values and preferences of judicial majorities; and (c) judges'

desires to increase (or revive) the court's status and influence or use judicial power

to advance political or policy change.

With regard to judicial leadership, Mate shows us how the views, values, and

influence of Justices Bhagwati and Krishna lyer were crucial to the Indian Supreme

Court's assuming the role of uplifting the poor (Ch. 10 in this volume, p. 281). Like-

wise, in Pakistan, Judge Chaudhry's courageous resistance to General Musharrafs

attacks led the Supreme Court to assume an assertive role in seeking to trigger democ-

racy (Cinsburg, Ch. i in this volume, pp. 60-62). Without the "intellectual prowess

and leadership" of Israeli Supreme Court Justice Barak, Reichman argues, Israel's

"constitutional revolution" would not have occurred: Barak's scholarly campaign"

arguing that the country's ambiguous Basic Laws had in fact empowered the court

to invalidate legislation violating basic human rights gave the legal community an

invitation to file petitions - and offered it a "comprehensive manual" for how to do so

(Ch. 9 in this volume, pp. 244,248). Just as dramatically, Castillejos-Aragon empha-

sizes the key role of three justices in assertively - indeed, one might say bravely -

pushing for structural and procedural reforms that ultimately enabled the Mexican

Supreme Court to attract constitutional litigation, reactivate the legal complex and

forge a growing body of individual rights (Ch. 5 in this volume).

In addition, shifts in the stance of pivotal justices can strongly influence the

roles courts play and how they play them. To offer a well-known example, it was

the ostensible shift in the political motivations of one swing" justice - Owen

Introduction 29

Roberts's 1937 switch in time" (Ho & Quinn 2010) - that ended the U.S. Supreme

Court's efforts to block the expansion of the regulatory and administrative state. That

shift was consolidated when three of the justices who had constituted a barrier to

the New Deal agenda retired, another died, and President Roosevelt replaced all

four (Kagan, Ch. 8 in this volume).21 Broader changes in court majorities can also

stimulate judicial role change. In the case of South Africa, Klug argues that the

sharp increase in legitimacy of the justices President Nelson Mandela appointed to

the Constitutional Court in the mid-1990s - compared to those who held the post

previously - motivated and enabled the court to take on important symbolic, legal,

and practical roles in consolidating constitutionalism and democracy (Ch. 3 in this

volume, p. 97). Ginsburg notes that through the 19903, as more and more justices

born in Taiwan replaced those born on mainland China on the Council of Grand

Justices, the institution's internal motivations changed, leading it to systematically

disassemble barriers to democratic participation erected by the Kuomintang (KMT)

regime (Ch. i in this volume, p. 56).

Mate points to another motivational dynamic. The Indian Supreme Court's devel-

opment of PIL, he suggests, was partially inspired by several influential justices'

desire to "rehabilitate and bolster the (court's) institutional legitimacy," which had

been significantly damaged by its failure to block the excesses of Prime Minister

Indira Gandhi's emergency rule regime in the mid-1970s (Mate, Ch. 10 in this

volume, p. 264). Similarly, Scribner highlights how the Chilean Constitutional Tri-

bunal's shift to a more flexible and pragmatic stance after 1997 was motivated not

only by an evolution in the political backgrounds of the Tribunal's majority (from

Pinochet-era conservatives to appointees of elected center-left governments) but also

by the Tribunal's felt need - in the wake of its passivity during the dictatorship -

to build legitimacy among political parties, the legal community, and the public

(Ch. 4 in this volume; see also Huneeus 2010).22 Klug, too, suggests that the South

African Constitutional Court, due in great part to the failings of the judiciary under

apartheid, sought to distinguish itself as "a completely new institution with a funda-

mentally different role in protecting individuals and promoting a culture of rights

in a democratic South Africa" (Ch. 3 in this volume, p.96).

As many of these examples demonstrate, it is usually a combination ofopportuni-

ties and pressures stemming from political structures and dynamics on the one hand,

and judicial motivations to seize those opportunities on the other, that produces

21 Similarly, Scribner (Ch. 4 in this volume) argues that the return of Justice Valenzuela to the Chilean

Constitutional Tribunal stimulated a crucial switch in its interpretation of constitutional provisions

on legislative and executive lawmaking authority, thereby expanding its role in resolving institutional

disputes in that realm.

" To add one more example, Reichman discusses how the Israeli Supreme Court's increasing protection

of human rights throughout the 19905 was in part motivated by academic and human rights activists

criticizing the court for missing opportunities to exercise judicial review of statutes violating the values

entrenched in the country's declaration of independence, which activists believed the court should

have interpreted as constitutional (Ch. 9 in this volume, p. 250).

\. 3° Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

changes in judicial roles. For instance. Mate's chapter shows that the extraordinary

activism and assertiveness of the Indian Supreme Court (especially since the early

1990s) in issuing affirmative orders designed to improve various aspects of govern-

ment was due in significant measure to national legal, political, intellectual, and

journalistic elites' frustration with corruption and governmental ineffectiveness. The

groundwork for the court's willingness to attack corruption and maladministration,

however, had been laid by the justices Indira Candhi appointed to the Supreme

Court in the 19703, who had created PIL in the 19805 in part to enhance the court's

support in the wake of its mid-1970s acquiescence to emergency rule (Ch. 10 in this

volume).

JUDICIAL STRATEGIES, TACTICS, AND TECHNIQUES

In hindsight, political conditions - regime change or political fragmentation or

a strong legal complex - seem critical to courts playing new roles in governance.

However, as we previously hinted, even when conditions seem ripe, political leaders,

the legal community, or society can react negatively to judicial decisions in new

areas, and the strength of those reactions can be difficult for judges to predict

ex ante. The morning newspapers offer no diagrams delineating political leaders'

shifting tolerance intervals, or graphs showing the depth of the court's reservoir of

legitimacy. The legal complex may be supportive of expanding judicial roles, but

ultimately, only to a point or only in certain areas. Influential segments of society

may turn out to be unprepared for or downright resistant to particular types of

judicial activism. High courts' role-expanding decisions, therefore, often require

careful strategic calculation and political judgment - an assertion emphasized by

Shapiro and Ferejohn (Chs. 16 and 14, respectively, in this volume) and in many of

the empirical chapters.

Of course, as they are made by judges sitting on courts of law, such political judg-

ments are generally framed and justified in legal" ways. When high court judges do

decide to make politically sensitive, role-expanding decisions, they typically strive to

dampen the threat of political backlash by asserting that they are not making political

judgments but merely following legal imperatives that stem from the constih-itional

or statutory text or from the legal principles that underlie them. Indeed, in practically

every country studied in this book, judges employed a variety of legal strategies, tech-

niques, and tactics when ruling on politically controversial matters. They exhibited

striking creativity in how they interpreted constitutional texts, statutes, and judicial

precedents, framed their rulings, and timed their remedial orders.

Procedural and Interpretive Creativity

Judges taking on more expansive roles in politics and governance, the chapters in

this volume indicate, often engage in various kinds of legal creativity and innovation

Introduction 31

relating to procedure, remedies, case selection, and standing, as well as constitutional

(re)interpretation. With regard to procedural choices, high courts have traditionally

avoided politically explosive adjudication through doctrines that categorize some

issues as "political questions" or "bureaucratic matters" that are inappropriate for

judicial decisions, or by restricting standing to sue to escape being inundated by

abstract public interest claims against the constihitionality of governmental laws and

practices. However, this volume's chapters describe how some judges have extended

their reach into politics by forging innovations in procedural law that invite litigation

by politically or socially marginalized groups and individuals.

In the late 19505 and early 19603, Kagan's chapter notes, the U.S. Supreme Court

reinterpreted the constitution's habeas corpus clause, widening the ground for fed-

eral court review of state court decisions, thereby facilitating petitions to federal

courts by prisoners in state and local prisons and jails (Ch. 8 in this volume). The

court also reinterpreted the constitution's due process and right to counsel provi-

sions to require states to provide free lawyers to indigent criminal defendants. Even

more procedurally creative was the Indian Supreme Court's decision, as described

by Mate, to hear (and subsequently vindicate and remedy) a claim filed not by an

individual whose rights had arguably been violated, but by a journalist who had doc-

umented that the State ofBihar had been holding thousands of criminal suspects in

jail for interminable periods pending trial - longer than the maximum sentence had

they been tried and found guilty. Moreover, in its ruling, the court held that even

a letter from an individual unable to hire a lawyer would be acceptable as a formal

case filing - and in what came to be labeled "epistolary jurisprudence," went on

to hear and affirm large numbers of public-interest claims that led to wide-ranging

governmental reforms (Ch. 10 in this volume, p. 274) .23

Our chapters document other types of procedural creativity, as well. As Trochev

recounts in connection with Ukraine's Orange Revolution, following the 2004 runoff

presidential election behveen Viktor Yushchenko and Viktor Yanukovych, opposi-

tion and government actors filed multiple court cases accusing each other of voter

fraud. The dispute eventually reached the Supreme Court. Departing from the three-

judge panel norm, the court announced that the entire twenty-one-member Civil

Chamber would hear the plaintiffs' claims. The court also aired the proceedings on

national television, thereby displaying the formally legal (rather than politically par-

tisan) nature of the hearings. Further, in ruling on the case, the court "discovered"

a new remedy it asserted derived from the people's constitutional right to vote: the

holding of another second-round presidential election. That decision, as Trochev

perhaps understates, "relied as much on the spirit as the letter of the law" (Ch. 2

in this volume, pp. 78-83). Yushchenko's lawyers hailed the solution for its "cre-

ative" and innovative" nature. Ginsburg (Ch. i in this volume) describes another

23 The court's procedural creativity extended beyond its manipulation of standing; for instance, it also

developed other procedural tools such as "continuing mandamus," which allowed it to maintain

jurisdiction over PIL cases indefinitely by issuing orders and directives before final adjudication.

\. 32 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

form of procedural creativity. In both South Korea and Taiwan, courts bifurcated

politically sensitive legal claims into smaller, more manageable cases that could

be decided somewhat independently. For example, by treating a linked series of

cases surrounding the 2004 elections as discrete legal issues, Taiwanese judges and

justices ensured that they would be decided by different courts using different proce-

dures. As a result, different outcomes obtained, some favoring challengers and some

incumbents, helping maintain political balance and foster democratic consolidation

(Ch. i in this volume, p. 57).

Much has been written, of course, about the interpretive strategies courts employ

in reading constitutions, such as the discernment ofnon-textual fundamental princi-

pies, implied rights, balancing tests, and structural imperatives (see, e.g., Silverstein,

2003). Hirschl's chapter highlights a different kind of interpretive creativity in both

Egypt and Pakistan. In 1980, Egyptian leaders amended the country's constitution,

introducing Shari'a as "the" (rather than "a") primary source of legislation. To help

courts grapple with the stahis of Shari'a as a "potentially determinative source of

authority," the Supreme Constitutional Court developed an innovative interpre-

tive matrix of religious directives" that sought to distinguish between undisputed,

universally binding principles of Shari'a and flexible applications of those princi-

pies" (emphasis added) - the first such rubric to be created by a secular tribunal

(Ch. 12 in this volume, p. 315). In Pakistan, the Supreme Court developed what

Hirschl refers to as a "harmonization doctrine" that entailed interpreting the consti-

tution "holistically" - such that no provision stood above any other - again allowing

justices significant latitude to limit the influence of a constitutional amendment

requiring the nullification of all laws repugnant to the "injunctions of Islam" (Ch. 12

in this volume, pp. 318-319).

Strategic Assertiveness

For decades, political scientists have argued that courts often decide highly con-

troversial cases shrategically (rather than in strict adherence to legal principle) in

order to minimize the risk of governmental, political, and even judicial criticism or

backlash (Murphy 1964; Ferejohn, Ch. 14 in this volume). That propensity is evident

in many of the empirical studies in this volume. In politically controversial cases,

one common conflict-defusing judicial tactic is to assert a constitutionally important

principle and hold that the government has violated it, but then temper or delay

the legal remedy sought by the government's challengers. For instance, Cinsburg

tells us that in 2004, the opposition-dominated Korean National Assembly brought

an impeachment charge against the popular president, Roh Moo-hyun, claiming he

had violated election laws requiring presidential neutrality in election campaigns

for the Assembly. The Korean Constitutional Court disaggregated the case, rul-

ing first that Roh had violated the law (the basis for impeachment), but second

that removal from office (the demanded remedy) would be disproportionate to the

Introduction 33

offense.24 In so deciding, the court provided partial validation for both sides in

the dispute (Ch. i in this volume, pp. 54-55). In another example, the historically

deferential Ukrainian Supreme Court split the difference when deciding a case

concerning the closely contested 2004 election. It annulled the politically docile

election commission's certification of victory by the incumbents, ruling that

had engaged in extensive fraud, thus giving the challengers an important legal and

political victory. But rather than handing victory to the challengers, the court man-

dated that a new election be held, thus affording incumbents a chance to compete

again and perhaps survive (although in the event they lost).25

On other occasions, courts postpone publication of bold remedies against the gov-

ernment or delay their implementation in an effort to head off tensions. This tactic

is illustrated by the U.S. Supreme Court decision in Brown v. Board of Education

(Kagan, Ch. 8 in this volume). After ruling mandatory racially segregated schools

unconstitutional, the court postponed its decision on the mandatory remedy until

the following year's term, and then ordered that racially segregated school districts

must dismande discriminatory systems not immediately but "with all deliberate

speed," enabling recalcitrant school boards to temporize, often for years (Rosenberg

1991).

A different postponement-of-remedy tactic is illustrated by Klug's account of the

1995 Western Cape case. In that case, the South African Constitutional Court

was confronted with a potentially explosive challenge to the constitutionality of

a law passed by the recently elected ANC-controlled Parliament and signed by

the immensely popular President Mandela, granting him authority to redraw the

electoral district lines for local government elections. The existing lines had been

established by an earlier act "negotiated by all parties as part of the transition to

democracy," and thus represented a crucial consensual compromise (Ch. 3 in this

volume, p. 105). However, a court ruling striking down the new law and Mandela's

district lines could have impeded local government elections across the country

and "halted the very process of democratic transition away from apartheid" (Ch. 3

in this volume, p. 18). To reassert the primacy of basic principles, the court gave

challengers an important victory: it held that the law and Mandela's implementing

orders represented an unconstitutional delegation of essential legislative power to

24 Ginsburg emphasizes that by refusing to endorse the National Assembly's factual findings, the court

assumed the role of "reviewing the political assessment of the impact that the removal of the President

would have on Korean democracy, establishing ibelf (rather than the Assembly) as the final arbiter of

whether removal was actually warranted" (emphasis added); that is, of saying what law is (Ginsburg,

Ch. i in this volume, p.54).

5 Our authors also suggest that courts sometimes split the difference through their rulings across a series

of cases. Hirschl illustrates this dynamic in his discussion of a set of crucial cases in Malaysia concerning

whether Shari'a courts are subject to fundamental principles of administrative and constitutional law.

Whereas overall the Malaysian court tended to bolster secular values, in these sorts of controversial,

highly publicized and politicized cases, it often sided with religious authorities and tribunals to some

degree, in hopes of retaining relevance and reducing the steadily increasing risk of backlash (Ch. 12

in this volume, pp. 323-325).

\. 34 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

the President. However, it also offered the ANC-dominated Parliament a period

of time to correct the violations, ultimately allowing the elections to go forward as

outlined in the newer regulations (Ch. 3 in this volume).

Finally, in a case discussed by Reichman (Ch. 9 in this volume) and then by

Ferejohn (Ch. 14 in this volume), the Israeli court employed a strategy reminiscent

of that famously used by the U.S. Supreme Court in Marbury v. Madison (1803):

strategically manufacturing an extraordinary role for itself and simultaneously pre-

empting retaliation by playing that role so as to support the government's position

in the particular case at hand. In the 1995 Bank Hamizrachi case, discussed earlier,

creditors claimed that their "right to property," established by a Basic Law, should

override a statute that granted a government agency the power to forgive the debts

of nearly bankrupt rural settlements. Until then, the prevailing doctrine had been

that even if the courts found a statute in conflict with a previously enacted Basic

Law, the Knesset (Parliament) could explicitly authorize the statute's implementa-

tion. In boldly asserting "that all Basic Laws had. .. become supreme over ordinary

legislation," the Supreme Court empowered itself to exercise judicial review on the

basis of all Basic Laws (Reichman, Ch. 9 in this volume, pp. 234, 246). However, in

deciding the particular dispute, the court upheld the questioned statute's constitu-

tionality, holding that its infringement of the right to property was "proportionate,"

and adding that the state should be given some leeway as the issue had not been seri-

ously litigated previously (Reichman, Ch. 9 in this volume, p. 247). In part because

the case was a relatively technical one concerning an issue that did not implicate

the main rifts in Israeli society (and in part because the court strategically delayed

publishing the ruling, ultimately "burying" it by publishing it in the wake ofYitzhak

Rabin's assassination in 1997), the government did not attack or protest the decision

(Reichman, Ch. 9 in this volume, p. 247). The Bank Hamizrachi opinion, however,

could be and was used by the court in subsequent cases to entrench its self-assigned

powers of legally and politically authoritative judicial review.

Judges can also sequence their rulings strategically. For example, some courts

sequence involvement in new policy areas carefully, testing the waters by first assert-

ing their powers in cases involving issues of low political salience, gradually building

on those precedents before applying them to cases with higher political stakes. Reich-

man suggests the Israeli court strove to ensure that the cases on which the country's

'constitutional transition" was founded were of low political visibility (Ch. 9 in this

volume, p. 249). Another form of sequencing entails initially targeting subnational

levels of government. Mate shows that when the Indian Supreme Court began to

use public interest litigation in the 19803 to issue bold reform orders to government

bureaucracies for failing to implement national laws, its targets were state and local

bureaucracies, not central government agencies. Only in the 19905, facing more

unstable, short-lived central government ruling coalitions in Parliament did the

court, less worried about central government resistance, begin issuing bold reform

orders to national bureaucratic bodies (Ch. 10 in this volume).

Introduction 35

A related role-expansion tactic involves what Mate refers to as "strategic assertive-

ness." Strategic assertiveness entails a court undertaking a new role by announcing

a general principle that constrains governmental power, initially applying that prin-

ciple in selective or qualified ways so as to avoid outcomes in individual cases that

might invoke governmental resistance or retaliation, but ultimately moving step by

^tep - as political conditions permit - to apply it more boldly and against more impor-

tant targets. Thus, Mate describes the 1981 Judges Case," in which senior lawyers

from various states in India challenged the central government's control over judi-

cial transfers and appointments, and in particular, the law minister's asserted power

to transfer state high court judges to other jurisdictions, bypassing the normal con-

sultation procedures. The central government maintained that the lawyers did not

have standing to file the case, as they had not suffered any legal harm, and asserted

that only judges could bring such claims. The Indian Supreme Court dismissed

the government's objections to the lawyers' standing, asserting that as "officers of

the court" they had a strong interest in the maintenance of judicial independence,

which the court held was part of the "basic structure" of the constitution and hence

immune from infringement by the government - and which the government's judi-

cial transfers arguably compromised. On the merits of the case, the justices ruled

that the constitutional principle of judicial independence required the Executive

to consult in advance with the chief justice and at least one other Supreme Court

and high court justice concerning judicial appointments and transfers. The court

qualified the ruling, however, by stipulating that the Executive was not constitution-

ally required to abide by the advice of the consulted judges (Ch. 10 in this volume,

pp.272-273).

In sum, the court strategically extended its own jurisdiction (by endorsing standing

for public interest litigation to the advocates) and laid down a basic precedent (con-

straining unfettered executive discretion in dealing with judicial staffing) enabling

the minister to achieve the outcomes he had sought in the case at hand. Twelve years

later in the "Second Judges Case" (1993), the Supreme Court - buoyed by a decade

of successfully asserting its power and facing a politically weaker governing coalition

- reinterpreted the same constitutional provisions even more assertively, ruling that

the chief justice of India (in consultation with the other two senior justices on the

Supreme Court), not the Executive, had the final say in judicial appointments and

transfers (Mate, Ch. 10 in this volume, p. 276).

CONCLUSION

In the countries examined in this volume - and undoubtedly in others, as well -

courts are playing consequential new roles in governance. They do so in multiple

arenas of political conflict: deciding disputes between political incumbents and

challengers and between units of government about who governs; addressing ten-

sions behveen secular and religious beliefs; and responding to popular outcry about

\. ?6 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

government corruption, deadlock, or stasis. Courts are playing such new roles - our

country studies suggest - because macrostructural conditions more often offer them

the opportunity to do so; because political actors increasingly urge, encourage, and

sometimes insist that they do so; and because judges themselves are motivated to

assume new functions in governance. Because they often (although not always) do

so at the risk of criticism and resistance from some political leaders, institutions,

certain segments of the public, and even some judges and other members of the

national legal complex, judges often proceed toward new roles in governance care-

fully and strategically - picking and choosing their battles, linking bold rulings to

constitutional texts via creative interpretation, and seeking to avoid political backlash

by tempering the remedies they order in particular cases. We sought to illustrate this

complex mix of factors and forces impinging on courts and the roles they play with

a nautical metaphor depicting judicial ships sailing on an ocean of multifaceted

opportunity and risk, propelled by winds of demand and ever watchful for winds of

resistance. The chapters following this introduction take us on a fascinating array of

judicial voyages.

We hasten to highlight that neither we nor the volume's contributors wish to

exaggerate the roles courts are playing in politics and policymaking around the

world. Even where courts play enormously important roles, factors and forces with

the potential to limit those roles or the way courts play them can arise without

warning. Indeed, far from being power maximizers, courts are often successful

because they are careful balancers. Few judicial ships seek to cross the high seas at

fall sail as quickly as possible, taking on ever-more cargo (judicial roles); instead,

courts often tack carefully, assuming new roles judiciously. As a result, courts are

rarely monolithically strong. They are called on selectively to resolve particular types

of disputes, and they generally respond selectively, ultimately playing more roles in

certain spheres of politics and policy than in others.

Likewise, our case studies call into question the assumption that political power is

zero-sum - that the power gained by courts must come at the expense of that possessed

by the other branches of government, or that a loss of power by judges must mean

the other branches have become more powerful. As our authors show quite clearly,

powerful courts can strengthen and legitimate the authority of the executive and

legislative branches alike. Courts and politicians coordinate in myriad ways, and

affording courts more power can simultaneously strengthen a political regime: the

power of all of the branches can grow together in something of a virtuous cycle.

However, the fact that courts have not commandeered politics in any country - even

where they have long been powerful - suggests that judicial power is asymptotic to

political power: the former may grow to the outer boundaries of the latter but will

never eclipse it. Indeed, our case studies demonstrate repeatedly that courts rarely

act alone. This is true in part because they are structurally passive institutions, but

also because they are often most consequential when they exercise power in concert

with, rather than in opposition to, other important actors.

Introduction 37

This volume is an effort to begin a new conversation in the field of comparative

judicial politics. It suggests an agenda, and a direction in which scholars of courts

around the world might move - one that we hope will lead to a more nuanced

discussion of the roles courts play and how those roles change over time. It is

:isely because we see this book as an effort to open new avenues of inquiry

that - following the eleven empirical chapters that form the heart of the volume -

it includes a quartet of chapters in which distinguished authors (whom we have

called our provocateurs theoretiques) offer their own perspectives on the general

project, our discussion of the expansion of judicial roles in governance, and the

analytic framework we have outlined here. We reserve the final word, however, for

our own concluding chapter, in which we take up some of their arguments and

challenges.

REFERENCES

Ackerman, Bruce A. 1991. We the People: Foundations. Cambridge, MA: Harvard University

Press.

Alter, Karen J. 2001. Establishing the Supremacy of European Law: The Making of an Inter-

national Rule of Law in Europe. New York: Oxford University Press.

Baum, Lawrence. 2006. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton: Princeton University Press.

Biclcel, Alexander. 1962. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. Indianapolis: The Bobs-Merrill.

Couso, Javier A. 2005. "The Judicialization of Chilean Politics: The Rights Revolution that

Never Was." In The Judicialization of Politics in Latin America, edited by Rachel Sieder,

Line Schjolden, and Alan Angell. New York: Palgrave.

Czarnota, Adam, Martin Krygier, and Wojciech Sadurski, eds. 2005. Rethinking the Rule of

Law after Communism. New York: Central European University Press.

Dunoff, Jeffrey and Joel Trachtman, eds. 2009. Ruling the World? Constitutionalism, Intema-

tional Law and Global Governance. New York: Cambridge University Press.

Dupre, Catherine. 2003. Importing the Law in Post-Communist Transitions: The Hungarian

Constitutional Court and the Right to Human Dignity. Portland: Hart Publishers.

Elster, Jon. 2004. Closing the Books: Transitional Justice in Historical Perspective. New York:

Cambridge University Press.

Epp, Charles. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Com- parative Perspective. Chicago: University of Chicago Press.

Epstein, Lee, Jack Knight and Olga Shvetsova. 2001. "The Role of Constitutional Courts

in the Establishment and Maintenance of Democratic Systems of Government." Law 6

Society Review 35:117-63.

Farber, Daniel A. 2002. "Rights as Signals." The Journal of Legal Studies 31(1): 83-98.

Finkel, Jodi. 2008. Judicial Reform as Political Insurance: Argentina, Peru and Mexico in the

1990s. Notre Dame: University ofNotre Dame Press.

Friedman, Lawrence. 1984. Total Justice. New York: Russell Sage Foundation.

Galanter, Marc. 1974. "Why 'the Haves' Come Out Ahead: Speculations on the Limits of

Legal Change." Law 6- Society Rev. 9: 95.

Gargarella, Roberto, Pilar Domingo, and Theunis Roux, eds. 2006. Courts and Social Trans-

formation in New Democracies: An Institutional Voice for the Poor? Aldershot: Ashgate.

38 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan

Gauri, Varun and Daniel M. Brinks. 2008. Courting Social Justice: Judicial Enforcement of

Social and Economic Rights in the Developing World. New York: Cambridge University

Press.

Ginsburg, Tom. 2003. Judicial Review in New Democracies: Constihitional Courts in Asian

Cases. New York: Cambridge University Press. Ginsburg. Tom and Tamir Moustafa, eds. 2008. Rule by Law. The Politics of Courts in

Authoritarian Regimes. New York: Cambridge University Press.

Goldstein, Judith et al. 2001. Legalization and World Politics. Cambridge: MIT Press.

Graber, Mark. 1993. "The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary."

Studies in American Political Development 7(1): 35-73.

Halliday, Terry, Lucien Karpik, and Malcolm Feeley, eds. 2007. Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Change. Portland: Hart Publishing.

Hamilton, Alexander. 1788. "The Federalist No. 78: The Judiciary Department." Independent

Journal, June 14.

Hasen, Richard. 2006. The Supreme Court and Election Law: Judging Equality from Baker v.

Can to Bush v. Gore. New York: New York University Press.

Helmke, Gretchen. 2005. Courts under Constraints: Judges, Generals, and Presidents in

Argentina. New York: Cambridge University Press.

Hilbink, Lisa. 2007. Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile.

New York: Cambridge University Press.

Hirschl, Ran. 2006. "The New Constitutionalism and the Judicialization of Pure Politics

Worldwide." Fordham Law Review 75(2): 721-54.

Hirschl, Ran. 2007. Towards Juristocracy: The Origins and Consequences of the New Consti-

tutionalism. Cambridge: Harvard University Press. Ho, Daniel and Kevin Quinn. 2010. "Did a Switch in Time Save Nine?" Journal of Legal

Analysis 2(1), 69-113. Huneeus, Alexandra. 2010. "Judging with a Guilty Conscience: The Chilean Judiciary's

Human Rights Turn." Law and Social Inquiry 35 (Winter): 99-135.

Kapiszewski, Diana. 2011. "Power Broker, Policy Maker, or Rights Protector? The Brazilian

Supreme Tribunal Federal in Transition." In Courts in Latin America, edited by Gretchen

Helmke and Julio Rfos-Figueroa. New York: Cambridge University Press.

Kapiszewski, Diana. 2012. High Courts and Economic Governance in Argentina and Brazil.

New York: Cambridge University Press.

Kende, Mark. 2009. Constitutional Rights in Two Worlds: South Africa and the United States.

New York: Cambridge University Press.

Klarman, Michael J. 2007. Brown v. Board of Education and the Civil Rights Movement.

Oxford: Oxford University Press.

Lasser, Mitchel de S.-O.-1'E. 2009. Judicial Transformations: The Rights Revolution in the

Courts of Europe. New York: Oxford University Press.

Magalhaes, Pedro C. 1999. "The Politics of Judicial Reform in Eastern Europe." Comparative

Politics 31(4): 43-62. Magaloni, Beatriz and Aiianna Sanchez. 2008. "Institutional Origins of Supreme Court

Power: Mexico 1994-2007." Presented at "The Dilemmas of Judicial Power: A Sawyer

Seminar at the University of California Berkeley," February 14, 2008.

Mandel, Michael. 1994. Charter of Rights and the Legalization of Politics in Canada. Toronto:

Thompson Educational Publishing.

Moustafa, Tamir. 2003. "Law versus the State: The Judicialization of Politics in Egypt." Law

and Social Inquiry 28: 883-928.

Introduction 39

Moustafa, Tamir. 2007. The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt. New York: Cambridge University Press.

Murphy> Walter. 1964 Elements of Judicial Strategy. Chicago: University of Chicago Press.

Nonet, Philippe and Philip Selznick. 1978. Law and Society in Transition: Toward Responsive

Law. New York: Harper Colophon [reprinted, 2001, Transaction Books].

North, Douglas and Barry Weingast. 1989. "Constitutions and Commitment: The Evolution

of Institutions Governing Public Choice in lyth C. England." Journal of Economic History

49:803-32.

Nunes, Rodrigo. 2010. Politics without Insurance: Democratic Competition and Judicial Reform in Brazil." Comparative Politics 42(3): 313-31.

Paris, Michael. 2001. Legal Mobilization and the Politics of Reform: Lessons fi-om School

Finance Litigation in Kentucky." Law and Social Inquiry 26: 631-84.

Piana, Daniela. 2010. Judicial Accountabilities in New Europe: From Rule of Law to Quality

of Justice. Aldershot: Ashgate.

Ramseyer, J. Mark. 1994. "The Puzzling Independence of Courts: A Comparative Approach." Journal of Legal Studies 23(2): 721-47.

Reddy, 0. Chinnappa. 2009. The Court and the Constitution of India: Summits and Shallows. New York: Oxford University Press.

Rosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring about Social Change? Chicago: University of Chicago Press.

Sadurski, Wojciech, ed. 2002. Constitutional Justice, East and West: Democratic Legitimacy and Constitutional Courts in Post-Communist Europe in a Comparative Perspective. The

Hague: Kluwer Law International.

Scheppele, Kim Lane. 1999. The New Hungarian Constitutional Court." Eastern European Constitutional Review 8(4): 81-87.

Scheppele, Kim Lane. 2000. Constitutional Interpretation after Regimes of Horror." Univer-

sity of Pennsylvania Law School, Public Law Working Paper No. 05.

Scheppele, Kim Lane. 2ona. "Hungary's Constitutional Revolution." New York Times

December 19,2011. Retrieved from http://krugman.blogs.nytimes.com/2on/i2/i9/hungarys- constitutional-revolution/

Scheppele, Kim Lane. 2onb. "Update: Depression and Democracy Revisited." New York

Times, December 20, 2011. Retrieved from http://krugman.blogs.nytimes.com/2on/i2/20/

more-hungary/

Scheppele, Kim Lane. 20110. "The Unconstitutional Constitution." New York Times,

January 2, 2012. Retrieved from http://krugman.blogs.nytimes.com/2oi2/oi/o2/the-uncon

stihjtional-constitution/

Schwartz, Herman. 2000. The Struggle for Constitutional Justice in Post-Communist Europe.

Chicago: University of Chicago Press.

Segal, Jeffrey A. and Harold J. Spaeth. 1993. The Supreme Court and the Attitudinal Model.

New York: Cambridge University Press.

Shapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: University of

Chicago Press.

Shapiro, Martin. 1992. "The Giving Reasons Requirement." University of Chicago Legal

Forum, 179-221.

Shapiro, Martin and Alec Stone Sweet. 2002. On Law, Politics and Judicialization. New York:

Oxford University Press.

Sieder, Rachel, Alan Angell, and Line Schjolden. 2005. The Judicialization of Politics in Latin

America. New York: Palgrave Macmillan.

40 Diana Kapiszewski, Gordon Silverstein, and Robert A. Kagan Introduction 4i

Siegel, Andrew. 2006. "The Court Against Courts: Hostility to Litigation as an Organizing

Theme in the Rehnquist Court's Jurisprudence." Texas Law Review 84(5): 1097-202.

Silverstein, Gordon. 2003. "Globalization and the Rule of Law: A Machine that Runs of

Itself?" International Journal of Constitutional Law i: 427-45.

Silverstein, Gordon. 2006. Singapore: The Exception that Proves Rules Matter." In Rule by Law: The Politics of Courts in Authoritarian Regimes, edited by Tom Ginsburg and Tamir

Moustafa. New York: Cambridge University Press, 73-101.

Silverstein, Gordon. 2009. Law's Allure: How Law Shapes, Constrains, Saves and Kills Politics.

New York: Cambridge University Press.

Simmons, Beth. 2009. Mobilizing for Human Rights: International Law in Domestic Politics.

New York: Cambridge University Press.

Skach, Cindy. 2005. Borrowing Constihitional Designs: Constitutional Law in Weimar

Germany and the French Fifth Republic. Princeton: Princeton University Press.

Slaughter, Anne-Marie, Alec Stone Sweet, and Joseph Weiler. 1998. The European Courts

and National Courts. Portland: Hart Publishing.

Solyom, Laszlo and Georg Brunner. 2000. Constitutional Judiciary in a New Democracy: The

Hungarian Constihitional Court. Ann Arbor: University of Michigan Press.

Staszak, Sarah. 2010. "Institutions, Rulemaking and the Politics of Judicial Retrenchment."

Studies in American Political Development 24: i68-8o.

Staton, Jeffrey K. 2004. "Judicial Policy Implementation in Mexico City and Merida." Com-

parative Politics 37(1): 41-60.

Staton, Jeffrey K. 2006. "Constitutional Review and the Selective Promotion of Case Results."

American Journal of Political Science 50(1): 98-112.

Staton, Jeffrey K. 2010. Judicial Power and Strategic Communication in Mexico. New York:

Cambridge University Press.

Stone Sweet, Alec. 1980. The Birth of Judicial Politics in France: The Constitutional Council

in Comparative Perspective. New York: Oxford University Press.

Stone Sweet, Alec. 1999. "Judicialization and the Construction of Governance." Comparative

Political Studies 31:147-84.

Stone Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York:

Oxford University Press.

Stotzky, Irwin P., ed. 1993. Transition to Democracy in Latin America: The Role of the Judiciary. Boulder: Westview Press.

Tate, C. Neal and Torbjorn Vallinder. 1997. The Global Expansion of Judicial Power. New York: New York University Press.

Teitel, Ruti. 2002. Transitional Justice. New York: Oxford University Press.

de Tocqueville, Alexis. 1835 (1899). Democracy in America (Book I, Chapter XVI) New York:

D. Appleton and Company.

Trochev, Alexei. 2008. Judging Russia: The Role of Constitutional Courts in Russian Politics

1990-2006. New York: Cambridge University Press.

Tushnet, Mark. 2009. Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights

in Comparative Constitutional Law. Princeton: Princeton University Press.

Vanberg, Ceorg. 2001. Legislative-Judicial Relations: A Game-Theoretic Approach to Con-

stitutional Review." American Journal of Political Science 45(2): 346-61.

Waltz, Kenneth. 1964. Man, the State and War. New York: Columbia University Press.

Whittington, Keith E. 2005. "Interpose Your Friendly Hand: Political Supports for the Exercise

of Judicial Review by the United States Supreme Court." American Political Science Review

99(4): 583-96.

Whittington, Keith. 2007. Political Foundations of Judicial Supremacy: The Presidency the

Supreme Court, and Constitutional Leadership in U.S. History. Princeton: Princeton Uni-

versity Press.

Wolfensohn, James. 2001. "Keynote Address to the Law and Justice Conference: Empow-

erment. Security and Opporhinity through Law and Justice." Retrieved from http:

//www.worldbank.org/html/extdr/extme/jdwsp07Q90i.htm.

Zifcak, Spencer. 1996. "Hungary's Remarkable, Radical, Constitutional Court." Journal of

Constitutional Law in Eastern and Central Europe 3:1-56.