Hirschl The Judicialization of Mega Politics

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The Judicialization of
Mega-Politics and the
Rise of Political Courts
Annu. Rev. Polit. Sci. 2008.11:93-118. Downloaded from www.annualreviews.org
Ran Hirschl
by Universidad de Chile on 03/18/13. For personal use only.
Faculty of Law and Department of Political Science, University of Toronto,

Toronto M5S 2S2, Ontario, Canada; email: ran.hirschl@utoronto.ca
Annu. Rev. Polit. Sci. 2008. 11:93–118 Key Words

The Annual Review of Political Science is online at comparative constitutional law and courts, judicialization
http://polisci.annualreviews.org
of politics, law of democracy, constitutional theory
This article’s doi:
10.1146/annurev.polisci.11.053006.183906 Abstract
Copyright c 2008 by Annual Reviews. In recent years, the judicialization of politics worldwide has expanded
All rights reserved
its scope to encompass what we may term “mega-politics”—matters
1094-2939/08/0615-0093$20.00 of outright and utmost political significance that often define and
divide whole polities. In this article, I explore the scope and nature
of judicialization of this kind. I begin by identifying the characteris-
tics of the judicialization of mega-politics and by surveying the main
explanations for its emergence. I then illustrate the various forms
and manifestations of the judicialization of mega-politics through
recent examples drawn from jurisprudence of courts and tribunals
worldwide. Next, I explore recent studies that advance a strate-
gic “judicialization-from-above” account, which emphasizes support
from the political sphere as a necessary precondition for judicializa-
tion of pure politics. To further illustrate this point, I survey patterns
of political reaction to recurrent manifestations of unsolicited judi-
cial intervention in the political sphere in general, and unwelcome
judgments concerning contentious political issues in particular.
93
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INTRODUCTION gion, the rights of privacy and equality, and

Constitutional supremacy—a concept that public policies pertaining to criminal justice,
has long been a major pillar of American polit- property, trade and commerce, education,
ical order—is now shared, in one form or an- immigration, labor, and environmental pro-
other, by more than 100 countries across the tection. Bold newspaper headlines reporting
globe. Numerous postauthoritarian regimes landmark court rulings concerning hotly con-
in the former Eastern Bloc, Latin America, tested issues—reproductive freedoms, same-
Asia, and Africa were quick to endorse princi- sex marriage, the place of religious symbols in
ples of modern constitutionalism upon their the public sphere, or the rights of detainees—
transition to democracy. From Germany and have become common. This is evident in the
Spain to Russia and Turkey, constitutional United States, where the legacy of active ju-
courts throughout Europe have started to play dicial review recently marked its bicentennial
an important role in translating constitutional anniversary; here, the courts have long played
provisions into practical guidelines for use a significant role in policy-making. And it
in public life. The new South African con- is just as evident in younger constitutional
stitution (1996) and the South African Con- democracies that have only established ac-
stitutional Court have become symbols of tive judicial review mechanisms in the last few
postapartheid renewal in that country. Even decades.
such countries as Britain, Canada, Israel, and In recent years, the judicialization of pol-
New Zealand—not long ago described as itics has expanded beyond rights issues or
the last bastions of Westminster-style par- transnational cooperation to encompass what
liamentary sovereignty—have rapidly joined we may term “mega-politics”—matters of
the global trend toward constitutionaliza- outright and utmost political significance that
tion. Most of these countries also have a often define and divide whole polities. These
recently adopted constitution, or have un- range from electoral outcomes and corrob-
dergone a constitutional revision to incorpo- oration of regime change to matters of war
rate a bill of rights and introduce some form and peace, foundational collective identity
of active judicial review. This trend has not questions, and nation-building processes per-
passed over supranational entities; for exam- taining to the very nature and definition
ple, constitutionalization processes have taken of the body politic. Examples include the
place in the European Union, prior to and fate of the American presidency, the war in
after its recent eastward expansion. Mean- Chechnya, the near-constant political tur-
while, the European Court of Justice (the apex moil in Pakistan, multicultural citizenship
court of the now 27-state European Union) in Western Europe, the place of Germany
and the European Court of Human Rights in the EU, quandaries of transitional jus-
(the top judicial organ of the Council of tice from the post-communist world to post-
Europe) have emerged as widely cited sources authoritarian Latin America to postapartheid
of jurisprudence. South Africa, the status of indigenous pop-
One of the main consequences of this ulations in Australia and New Zealand, the
transformation has been the judicialization political future of Quebec and the Canadian
of politics—the ever-accelerating reliance on federation, the eminence of Shari’a law in
courts and judicial means for addressing core Egypt, the secular nature of Turkey’s polit-
moral predicaments, public policy questions, ical system, or Israel’s fundamental defini-
and political controversies. Armed with these tion as a “Jewish and democratic state” and
newly acquired judicial-review procedures, the corresponding question, “Who is a Jew?”
national high courts worldwide are frequently These diverse matters have all been framed
asked to resolve a range of issues including as constitutional issues, with the concomitant
the scope of freedom of expression and reli- assumption that courts, not politicians or the
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public, should resolve them. Aharon Barak, perspective. Because the number of American
the former proactive president of the Supreme citizens who work in the field still far exceeds
Court of Israel, once said that “nothing falls the number of citizens of the rest of the world
beyond the purview of judicial review; the who study the same set of phenomena, Amer-
world is filled with law; anything and every- ican constitutional experience is still the main
thing is justiciable,” and it seems that this reference point for most pertinent studies
motto has become widely accepted by courts published in leading academic venues. Con-
worldwide. sequently, the judicialization of politics con-
While constitutional theorists in the tinues to be portrayed as broadly synonymous
United States have been preoccupied with with American-style rights jurisprudence and
limiting executive power in the era of the judicial activism. Although such an account
“war on terror,” the global expansion of ju- might have been accurate as recently as the
dicial power has marched on. Although many 1990s, it no longer captures the current scope
public policy matters still remain beyond the of judicialized mega-politics.
purview of the courts, there has been a grow- Works that attempt to explain (not merely
ing legislative deference to the judiciary, an describe) the judicialization of politics may
increasing (and often welcomed) intrusion of be grouped, for the sake of simplicity, into
the judiciary into the prerogatives of legis- four main categories: functionalist, rights-
latures and executives, and a corresponding centered, institutionalist, or court-centered.
acceleration of the judicialization of polit- The functionalist approach attributes the ju-
ical agendas. Together, these developments dicialization of recent decades to the prolif-
have helped to bring about a growing reliance eration in levels of government and the cor-
on adjudicative means for clarifying and set- responding emergence of a wide variety of
tling fundamental moral controversies and semiautonomous administrative and regula-
highly contentious political questions, and tory state agencies (Shapiro & Stone-Sweet
have transformed national high courts into 2002). According to this approach, indepen-
major political decision-making bodies. dent and active judiciaries armed with judicial-
Despite the increasing relevance of this review practices are necessary for the efficient
trend to the study of both domestic and monitoring of the ever-expanding adminis-
international politics, the political science lit- trative state. Moreover, the modern admin-
erature addressing the judicialization of pol- istrative state embodies notions of govern-
itics worldwide remains surprisingly sketchy. ment as an active policy maker rather than
The term judicialization suffers from analyt- a passive adjudicator of conflicts. It there-
ical fuzziness; it is often used in an umbrella- fore requires an active, policy-making judi-
like fashion to refer to different, if often inter- ciary (Feeley & Rubin 1998). Along the same
related, processes. Relatively few works (e.g., lines, the judicialization of politics may also
Tate & Vallinder 1995; Goldstein et al. 2001; stem from the increasing complexity and con-
Hirschl 2002, 2004a, 2006; Ferejohn 2002; tingency of modern societies (Luhmann 1985)
Shapiro & Stone-Sweet 2002; Miller 2004; and/or from the creation and expansion of the
Pildes 2004; Sieder et al. 2005) go beyond modern welfare state with its numerous reg-
single-country case studies to treat the judi- ulatory agencies (Teubner 1987, Habermas
cialization of politics as a broad sociopoliti- 1988). Some accounts of the rapid growth
cal phenomenon. With a few notable excep- of judicialization at the supranational judicial
tions, much of the pertinent literature seems level portray it as an inevitable institutional
not to recognize that the great judicialization response to complex coordination problems
train has long since left the flashy “rights ju- deriving from the systemic need to adopt stan-
risprudence” station. Some of this oversight dardized legal norms and administrative reg-
stems from lack of a genuinely comparative ulations across member-states in an era of
www.annualreviews.org • Rise of Political Courts 95

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converging economic markets (Stone-Sweet ical actors are required to adhere. The persis-
2000). In some instances, economic liberal- tence and stability of such a system requires
ization may be an important projudicializa- at least a semiautonomous, supposedly apo-
tion factor. In the regulatory arena, the combi- litical judiciary to serve as an impartial um-
nation of privatization and liberalization may pire in disputes concerning the scope and na-
encourage “juridical regulation” (Vogel 1998, ture of the fundamental rules of the political
Kelemen & Sibbitt 2004). game. Active judicial review is both a prereq-
The second approach emphasizes the uisite and a byproduct of viable democratic
prevalence of rights discourse or the greater governance in multi-layered federalist coun-
awareness of rights issues, which is both re- tries (Shapiro 1999). In other words, more
flective of and contributing to what may be democracy equals more courts. However, the
termed judicialization from below. An authen- “proliferation of democracy” thesis cannot ac-
tic, “bottom up” judicialization is more likely count for the judicialization of politics in non-
when judicial institutions are perceived by so- or quasi-democratic polities, nor account for
cial movements, interest groups, and political significant variations in levels of judicializa-
activists as more reputable, impartial, and ef- tion among new democracies. And it does not
fective decision-making bodies than other in- adequately explain increased levels of judicial-
stitutions, which are viewed as bureaucracy- ization in stable democracies with no apparent
heavy or biased (Tate & Vallinder 1995). changes in their political regime.
Judicialization of this kind relies on a per- An institutional catalyst for judicialization
ceived contrast between the relative open- is provided by the proliferation of courts and
ness and integrity of the judicial process tribunals at the supranational level (Romano
and the corruptibility of political bargaining 1999, Slaughter 2000, Goldstein et al. 2001).
(Scheingold 1974). A well-developed support Perhaps nowhere is this process more evi-
structure for legal mobilization may aid this dent than in Europe (e.g., Weiler 1999; Stone-
kind of judicialization by allowing historically Sweet 2004). A similar process has taken place
under-represented or disenfranchised groups with respect to international trade disputes.
and individuals to invoke potentially favorable The establishment of the dispute settlement
laws and constitutional provisions through mechanism of the World Trade Organization
strategic litigation (Epp 1998). (WTO) has had far-reaching implications for
A third approach emphasizes institutional trade and commerce policies at the national
features that are, ceteris paribus, hospitable to level. The 1994 North American Free Trade
judicialization. At a bare minimum, the judi- Agreement (NAFTA) also established quasi-
cialization of politics requires acceptance of judicial dispute-resolution processes regard-
the rule of law, some level of legitimacy of the ing foreign investment, financial services, and
legal system, and a relatively independent and antidumping. Similar arrangements were es-
well-respected apex court armed with some tablished by the MERCOSUR agreement in
form of judicial-review power. Hence, the South America.
proliferation of democracy worldwide is said Models of judicial review employed by
to be a main cause of judicialization and the ex- constitutional democracies vary in their pro-
pansion of judicial power more generally. By cedural characteristics. This variance is said
its very nature, the establishment of a demo- to have implications for the scope and na-
cratic regime entails some form of separation ture of judicial review in these countries. A
of powers among the major branches of gov- system that permits a priori and abstract re-
ernment, as well as between the central and view initiated by politicians (e.g., France),
provincial/regional legislatures. It also entails unlike a system that permits only a poste-
setting up procedural governing rules and riori and concrete judicial review (e.g., the
decision-making processes to which all polit- United States), would appear to have a greater
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potential for judicialized policy making using perialist” courts of expropriating the consti-
the process of constitutional review. However, tution, being too assertive or overinvolved
as scholars have correctly pointed out, “the in moral and political decision making, and
apparently more restrictive combination of thus disregarding fundamental principles of
a posteriori and concrete review has hardly separation of powers and democratic gov-
relegated the US Supreme Court to a mi- ernance (Tushnet 1999, Bork 2002, Kramer
nor policy role” (Tate 1992, p. 6). Likewise, 2004, Waldron 2006).
the impact of the judiciary on public policy None of these four approaches takes the
outcomes is said to be more significant un- conceptualization of courts as political in-
der a decentralized, all-court review system stitutions seriously enough. As the seminal
(e.g., the United States) than under a cen- work of Robert McCloskey, Robert Dahl, and
tralized, single-tribunal (constitutional court) Martin Shapiro (among others) established,
review (e.g., Germany, Austria, Italy, Spain, constitutional courts and their jurisprudence
and almost all new democracies in postcom- are integral elements of a larger political set-
munist Europe). But akin to the a priori/ ting and cannot be understood in isolation
abstract versus a posteriori/concrete distinc- from it. Taking the notion of courts as polit-
tion, the real significance of the distinc- ical institutions even further, recent political
tion between decentralized and centralized science scholarship suggests that judicial re-
review is questionable. Constitutional courts view is often politically constructed, and that
in Italy, Germany, France, Russia, Poland, elected officials may have political and policy
and Hungary appear to have been as en- reasons for empowering constitutional courts
gaged with core political controversies as their (e.g., Gillman 2002; Ginsburg 2003; Lovell
counterparts in countries that employ a de- 2003; Hirschl 2004a, 2008; Graber 2006;
centralized approach. Finally, liberal stand- Whittington 2007). Accordingly, a more
ing and accessibility rights along with lower strategic or realist approach to the judicial-
barriers of nonjusticiability provide an im- ization of politics has emerged, emphasizing
portant institutional channel through which “judicialization from above” and the political
ordinary citizens can challenge what they conditions that are likely to promote it. Con-
regard as infringements on their constitution- crete political power struggles, the interests of
ally protected rights before a country’s ju- elites and other influential stakeholders, and
dicial system, thereby increasing the likeli- clashes of worldviews and policy preferences
hood of judicial involvement in public policy are considered the main catalysts of the judi-
making. cialization of mega-politics. Strategic politi-
The fourth perspective holds that the cal deference to the judiciary alongside polit-
courts and judges are the main driving force ically astute judicial behavior is the explosive
behind the expansion of judicial power. This formula here.
court-centric approach is often advanced by In this article, I explore the nature and
scholars of supranational judicial organs (e.g., scope of the new level of judicialized politics,
Weiler 1994, Mattli & Slaughter 1995, Alter as well as recent scholarship that advances a
2001, Oliveira 2007). It is shared by constitu- realist political explanation of it. I proceed
tional theorists who often treat unelected jus- in four stages. The next two sections define
tices as seizing power from elected officials, and illustrate the characteristics of the judi-
thereby illustrating the so-called counter- cialization of mega-politics through recent ex-
majoritarian difficulty, or the tension between amples drawn from jurisprudence of courts
democratic governing principles and judicial and tribunals worldwide. I then explore re-
review. Even politically astute critics of judi- cent studies that suggest that the judicializa-
cial activism, both leftists and conservatives, tion of politics is first and foremost a politi-
often accuse “power hungry” judges and “im- cal phenomenon. Neither societal factors or

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institutional features hospitable to judicial The proliferation of administrative agen-

activism, nor power-hungry courts and judges cies in the modern welfare state has expanded
seeking to expand their influence, is a suffi- the scope of administrative review by courts.
cient condition for the judicialization of pure Drawing on norms from contract law and
politics. Finally, I demonstrate that support constitutional law—but mainly from admin-
from the political sphere is a necessary pre- istrative law—courts oversee and enforce the
condition for the judicialization of pure pol- application of due process, equal opportunity,
itics. To that end, I explore patterns of po- transparency, accountability, and reasonable-
litical reaction to recurrent manifestations of ness in public policy making. It is therefore
unsolicited judicial intervention in the politi- not surprising that judicialization of this type
cal sphere in general—and unwelcome judg- dominates the justice system itself, from civil
ments concerning contentious political issues procedure to criminal due process; it is also
in particular. As I suggest in my concluding salient in similarly process-heavy policy areas

remarks, the strategic approach to judicial- such as immigration, taxation, public tenders,
ization illustrates the increasingly inexplica- and urban planning. In short, whereas at
ble divide between grand constitutional the- the most general level, a juridification of
ory and the study of real-life constitutional social relations has taken place worldwide,
law and politics. judicialization of this second, more concrete
type manifests itself mainly in the domain
of now “ordinary” rights jurisprudence, and
THREE LEVELS OF judicially enforced procedural justice, and
JUDICIALIZATION: THE NEW formal fairness in public policy making.
FRONTIER, JUDICIALIZATION In recent years we have seen the emer-
OF “MEGA-POLITICS” gence of another level of judicialized politics:
Over the last few decades there has been a reliance on courts and judges for dealing
dramatic expansion in the realm of courts with mega-politics—core political contro-
and judges engaged with determining public versies that define the boundaries of the
policy outcomes, mainly through administra- collective or cut through the heart of entire
tive review, judicial redrawing of bureaucratic nations. This third level of judicialization in-
boundaries between state organs, and, latterly, cludes several subcategories: judicial scrutiny
“ordinary” rights jurisprudence. Not a sin- of executive-branch prerogatives in the realms
gle week passes without a national high court of macroeconomic planning or national se-
somewhere in the world releasing a major curity (i.e., the demise of what constitutional
judgment pertaining to the scope of constitu- theorists call the “political question” doc-
tional rights or the limits on legislative or ex- trine); judicialization of electoral processes;
ecutive powers. The most common are cases judicial corroboration of regime transforma-
dealing with criminal “due process” rights and tion; fundamental restorative-justice dilem-
other aspects of procedural justice. Also com- mas; and above all, the judicialization of
mon are rulings involving classic civil liberties, formative collective identity, nation-building
the right to privacy, and formal equality. This processes, and struggles over the very defini-
ever-expanding body of civil liberties jurispru- tion or raison d’être of the polity as such—
dence has expanded and fortified the bound- arguably the most troubling type of judicial-
aries of the constitutionally protected private ization from a participatory democracy stan-
sphere (often perceived as threatened by the point. These emerging areas of judicialized
long arm of the state and its regulatory laws) politics expand the boundaries of national
and has transformed numerous policy areas high-court involvement in the political sphere
involving individual freedoms. beyond any previous limit. This trend is often
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supported, tacitly or explicitly, by powerful people—but many cases that are not purely
political stakeholders. The result has been the political (e.g., large class-action lawsuits) also
transformation of supreme courts worldwide affect the lives of many people. Because there
into a crucial part of their respective countries’ is no simple answer to the question “what is
national policy-making apparatus. political?”—for many social theorists, the an-
It is difficult to overstate the significance of swer to that question would be “everything”—
this transition. Whereas oversight of the pro- there can be no plain and simple definition of
cedural aspects of the democratic process— the judicialization of politics, either. And there
judicial monitoring of electoral procedures are other complications. A controversial polit-
and regulations, for example—falls within the ical issue in one polity (say, affirmative action
mandate of most constitutional courts, ques- in the United States) may be a nonissue in an-
tions such as a regime’s legitimacy, a nation’s other polity. And different polities may have
collective identity, or a polity’s coming to very different views of a single issue. For ex-
terms with unsavory episodes in its past, pri- ample, reproductive freedom may be framed
marily reflect deep political dilemmas, not ju- mainly as a clash of rights (e.g., in the United
dicial ones. As such, they ought—at least in States), as reflection of the status of the his-
principle—to be contemplated and decided by torically influential church (e.g., in Poland),
the populace itself, through its elected and ac- or as a conflict between national prefer-
countable representatives. Adjudicating such ences and supranational norms (e.g., the com-
matters is an inherently and substantively po- patibility of Irish abortion laws with provi-
litical exercise that extends beyond the appli- sions of the European Convention of Human
cation of rights provisions or basic procedural Rights).
justice norms. Judicialization of this type in- That said, there seems to be a qualita-
volves instances where a nation’s courts decide tive difference between the political salience
its watershed political issues—even those not of (for example) a court ruling refining the
directly addressed by its constitution—despite boundaries of the right to a fair hearing, and
the obvious recognition of the very high polit- a landmark judgment determining the legit-
ical stakes for the nation. It is precisely these imacy of a polity’s regime or a nation’s col-
instances of the judicialization of core po- lective identity. The scope of the right to a
litical issues that make the democratic cre- speedy trial is an important issue for peo-
dentials of judicial review most questionable. ple facing criminal charges, but its salience
Whereas courts may be a suitable setting— is not comparable to “existential” political is-
perhaps even the best one, both in terms of sues such as the status of political Islam in the
their institutional position in a democracy and Middle East or the constitutionality of the
in terms of the judges’ expertise—for assess- postapartheid political pact in South Africa.
ing evidence, for determining responsibility Indeed, few issues may be considered more
for alleged wrongdoing, or for dealing with “political” than those that authoritatively de-
matters of procedural justice and fairness, it is fine a polity’s very identity. This elusive yet
ultimately unclear what makes courts an ap- intuitive distinction is what differentiates the
propriate forum for deciding what are quan- judicialization of mega-politics from the first
daries of a purely and substantively political two levels of judicialization. In considering
nature. the following examples, we shall touch on
The distinction between “ordinary” in- areas of judicialization that are seldom ad-
stances of judicialization and the judicializa- dressed by American constitutional theory;
tion of “mega-politics” depends, in part, on this area of scholarship has been too preoc-
our conceptualization of the political. A po- cupied with matters American, particularly
litical decision must affect the lives of many attention-grabbing rights issues.

ANRV344-PL11-05 ARI 8 April 2008 9:40
A FEW ILLUSTRATIVE (e.g., Italy’s Silvio Berlusconi, Peru’s Alberto

CASES (PLEASE FASTEN Fujimori, and Thailand’s Thaksin Shinawa-
YOUR SEATBELTS) tra), and “political trials”—arguably the old-
est form of judicialized politics, dating back
The judicialization of mega-politics includes to the Roman Empire or the days of King
several types of controversies, not all of which Herod the Great—in which prominent oppo-
are equally problematic for canonical consti- sition leaders have been indicted, disqualified,
tutional theory. Arguably, the most overtly po- or otherwise removed from competition by a
litical area is the judicialization of the demo- politicized judiciary.
cratic process itself. The US Supreme Court Courts have also become the ultimate de-
landmark jurisprudence in matters such as cision makers in disputes over national elec-
campaign financing, gerrymandering, and the tion outcomes, for example in Taiwan (2004),
redrawing of electoral districts is well known Puerto Rico (2004), Ukraine (2005), Congo
(see, e.g., Issacharoff et al. 2007). Courts else- (2006), Italy (2006) and Mexico (2006). Italy’s
where are frequently requested to decide on Constitutional Court approved a win by
the approval or disqualification of political <25,000 votes to the center-left leader Ro-
parties and candidates, or the validity of voter mano Prodi in one of the country’s closest
lists. Often, the political stakes are high. For elections. Likewise, a series of election ap-
example, the Constitutional Chamber of the peals and counter-appeals culminated in Mex-
Venezuelan Supreme Court was called upon ico’s Federal Electoral Court dismissing the
to determine the validity of over 2.5 million claim of the leftist runner-up Andres Manuel
signatures to a petition to hold a referen- Lopez Obrador of massive fraud by right-
dum that would determine whether Presi- wing candidate and election winner Felipe
dent Hugo Chavez should be recalled. Ulti- Calderon in the July 2006 presidential elec-
mately, Chavez won the referendum (2004) tion. Calderon won the election with a mar-
and avoided impeachment. In the past decade, gin of <0.6%. Constitutional courts have also
courts in a number of countries—notably been centrally involved in deciding election
Algeria, Bangladesh, Belgium, India, Israel, outcomes in states and provinces. Clearly,
Spain, and Turkey—have virtually or literally the Bush v. Gore courtroom struggle over the
banned political parties from participating in fate of the American presidency (e.g., Hasen
national elections. Such dissolutions of polit- 2004) was no idiosyncratic moment in the
ical parties raise serious questions about the recent history of comparative constitutional
boundaries of democracy and the very defini- politics.
tion of the polity, especially liberal, multicul- A second emerging category of judicialized
tural polities (see e.g., Rosenblum 2007). mega-politics is the increased judicial scrutiny
During the last decade alone, constitu- of core executive prerogatives in fiscal policy,
tional courts in over 25 countries have been foreign affairs, and national security. One as-
called upon to determine the political fu- pect of this type of judicialization that is eas-
ture of prominent leaders. Pakistan’s for- ily reconcilable with the checks-and-balances
mer prime ministers Benazir Bhutto and doctrine is judicial scrutiny of “process-lite”
Nawaz Sharif, Colombia’s president Alvaro measures adopted by governments to combat
Uribe, Nepal’s prime minister Sher Bahadur terrorism since 9/11. In 2004, the Law Lords
Deuba, Uganda’s president Yoweri Museveni, declared unconstitutional Britain’s post-9/11
Nigeria’s vice-president Atiku Abubakar, state-of-emergency legislation (Belmarsh Case
and Russia’s president Boris Yeltsin—among 2004). Recently, the Law Lords went on to
others—all had their political fate determined address such questions as whether the pro-
by courts. To that list one could add cor- visions of the European Convention of Hu-
ruption indictments against heads of state man Rights and the British Human Rights
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Act applied to British forces in Iraq (Al Skeini, Guinea declared unconstitutional the deploy-
2007), or whether the prohibition on tor- ment of law enforcement officers sent there
ture in international law required the UK by Australia to fight corruption and restore
to take positive action in the case of Guan- law and order. (The Australian task force was
tanamo detainees who might be suffering tor- rumored to have discovered government ties
ture at the hands of US authorities (Al Rawi, to organized crime.)
2007). In 1999, the Israeli Supreme Court In matters of broad economic and social
banned the use of torture in interrogations by policies, the courts have generally been less
Israel’s General Security Services but allowed active. With few exceptions (most notably
the use of “moderate physical pressure.” In South Africa, Brazil, and India), courts have
late 2006 it ordered the weighing of secu- not advanced progressive notions of distribu-
rity considerations against potential harm to tive justice in arenas such as income distri-
civilians in determining the legality of “tar- bution, eradication of poverty, or subsistence

geted killings” (the controversial practice of rights (e.g., basic education, health care, or
assassinating suspected Palestinian terrorists) housing), all of which require wider state in-
by Israel’s security forces. In a similar fash- tervention and changing public expenditure
ion, Peru’s Constitutional Council annulled priorities (Hirschl 2005). But other core so-
in 2002 the secret trial by a military tribunal cial policy areas have gone judicial, such as the
of the leaders of the Shining Path Maoist un- provision of health care in Canada (Chaoulli
derground rebel movement. v. Quebec, 2005), national welfare reform in
Courts have cast the judicial net wide to Hungary (Austerity Package Decisions, 1995), or
catch broader matters of national security. In the Argentine government’s plan to convert
contrast to the due-process realm, court rul- the Argentine economy to pesos and freeze
ings in virtually all of these cases have af- savings deposits held in US currency—a con-
firmed the official government position. In the sequence of Argentina’s major economic crisis
Chechnya Case (1995), the Russian Constitu- of 2001 (Corralito Case, 2004).
tional Court agreed to hear petitions by oppo- A third type of increased judicial involve-
sition members of the Duma, who challenged ment in mega-politics is the corroboration of
the constitutionality of three presidential de- regime change. The most obvious example is
crees ordering the invasion of Chechnya. Re- the “constitutional certification” saga in South
jecting Chechnya’s claim to independence and Africa—the first time a constitutional court
upholding the constitutionality of President refused to accept a national constitutional
Yeltsin’s decrees as intra vires, the majority of text drafted by a representative constitution-
the judges of this court stated that maintain- making body. Other recent manifestations in-
ing the territorial integrity and unity of Russia clude the 2004 dismissal by the Constitutional
was “[a]n unshakable rule that excludes the Court of South Korea of the impeachment of
possibility of an armed secession in any fed- President Roh Moo-hyun by South Korea’s
erative state.” Similarly, the Israeli Supreme National Assembly (the first time in the his-
Court ruled in 2004 on the constitutionality tory of modern constitutionalism that a presi-
and compatibility with international law of the dent impeached by a legislative body has been
controversial West Bank barrier separating reinstated by a judicial body); the astonish-
Israel from Palestinian territory. It also heard ing but rarely acknowledged restoration of the
arguments concerning the constitutionality of 1997 Fijian constitution by the Fijian Court of
the Oslo Peace Accords and Israel’s unilateral Appeals in Fiji v. Prasad 2001 (the first time in
pullback from the Gaza Strip. The Korean the history of modern constitutionalism that a
Constitutional Court recently upheld the gov- polity’s high court restored a constitution and
ernment decision to deploy Korean troops the democratic system of government created
in Iraq. The Supreme Court of Papua New by it); and the crucial yet seldom recognized

ANRV344-PL11-05 ARI 8 April 2008 9:40
involvement of the Pakistan Supreme Court while applying a compound of international

in the political transformation of that country. and national, substantial and procedural, law.
Since 1990, Pakistan has known five regime Activist constitutional courts are eager to cap-
changes, and its Supreme Court has played a italize on the opportunity to expand their
key role in each. influence in the area of international human
A case in point is the Pakistan Supreme rights. In 2005, for example, the Spanish Con-
Court’s appraisal of the legitimacy of the stitutional Tribunal ruled that Spanish courts
military coup d’état of October 1999. Amid could adjudicate cases concerning genocide
charges of runaway corruption and gross eco- and crimes against humanity, regardless of
nomic mismanagement by the government, whether Spanish citizens were involved or di-
General Pervez Musharraf seized power from rectly affected.
Prime Minister Nawaz Sharif. Musharraf National high courts have also been signif-
declared himself the country’s new chief exec- cant players in the field of restorative justice.
utive, detained Sharif and several of his politi- Akin to the judicialization of restorative jus-
cal allies, and issued a Proclamation of Emer- tice in the United States (e.g., the rich US
gency that suspended the operation of Sharif ’s Supreme Court jurisprudence on affirmative
government, Pakistan’s National Assembly, action), there has been a wholesale judicializa-
and its Senate. In a widely publicized decision tion of the battle over the status of indigenous
released in May 2000, the Pakistan Supreme peoples in so-called “settler societies,” partic-
Court drew on the doctrine of “state neces- ularly Australia, Canada, and New Zealand. In
sity” and the principle of salus populi suprema some instances, courts in these countries were
lex to unanimously validate the coup as hav- asked to go beyond the question of restorative
ing been necessary to spare the country from justice to determine the boundaries of collec-
chaos and bankruptcy. tive entitlement for reparation. In 2000, for
A fourth area in which mega-politics has example, the New Zealand Court of Appeal
undergone rapid judicialization is transitional defined the boundaries of the Maori commu-
justice. The Nuremberg-style “trial and pun- nity for the purpose of entitlement to gov-
ishment” mode of restorative justice has ernment compensation for native fisheries ti-
become quite prevalent. The International tle based on the Treaty of Waitangi (1840)—
Criminal Court (ICC), ratified by over 100 the constitutive document governing the re-
countries as of 2007, was established in 1998 as lationship between European settlers and the
a permanent international judicial body with Maori in New Zealand.
potentially universal jurisdiction over geno- The transformation of constitutional
cide, crimes against humanity, and war crimes. courts into a key arena for dealing with
Also established in the 1990s were the In- transitional-justice issues of near-existential
ternational Criminal Tribunal for the former proportions may lead judges to reevaluate
Yugoslavia (ICTY) and the International entire periods in their nation’s history. A po-
Criminal Tribunal for Rwanda (ICTR). litical quest for legitimacy, a lack of politi-
Meanwhile, quasi-judicial “truth commis- cal will, or inability to confront a less-than-
sions” or special tribunals dealing with core dazzling past often motivates deference to
issues of transitional justice have been estab- courts in such matters. A paradigmatic case—
lished in dozens of countries from El Sal- among many in the former Eastern Bloc—is
vador to Ghana. This international trend the 1993 decision of the Constitutional Court
has been described as a “justice cascade” of the Czech Republic to uphold a law that de-
(Lutz & Sikkink 2001). Also in this category clared the entire Communist era in the former
are the “hybrid courts” in Cambodia, East Czechoslovakia illegal. The Supreme Court
Timor, Kosovo, and Sierra Leone—-tribunals of El Salvador also took up the task of judging
working within the domestic legal system the nation’s political history when it upheld a
102 Hirschl
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contentious across-the-board amnesty to took the liberty of articulating with author-

gross human rights violators, granted by the ity the fundamental pillars of the Canadian
government as part of the national reconcil- polity in a way no state organ had done be-
iation process in the early 1990s. Argentina’s fore. It stated that the Canadian Constitu-
Supreme Court upheld in 1987 amnesty laws tion is based on four principles—federalism,
aimed at shielding perpetrators of serious hu- democracy, constitutionalism and the rule of
man rights violations committed during the law, and the protection of minorities—none of
military junta era in that country. That ruling which trumps any of the others. Hence, even
was overturned by the Inter-American Com- a majority vote (adhering to the fundamental
mission on Human Rights in 1992. In 2005, democratic principle of majority rule) would
after nearly two decades of fierce legal and po- not entitle Quebec to secede unilaterally.
litical battles, the amnesty laws were declared Another illustration of judicialization of
unconstitutional and void by the Supreme core nation-building processes is the German
Court of Argentina (Simón Case, 2005). Federal Constitutional Court’s key role in the
The shadow of the Pinochet era contin- creation of the unified Germany in the Maas-
ued to haunt Chile’s political system for years tricht Case (1993). Here, the Court drew on
after his retirement. Courts in Chile and else- Basic Law provisions to determine the sta-
where became the main forum for dealing tus of postunification Germany vis-à-vis the
with the aftermath of his ruthless dictatorship. emerging European supranational polity. In
Arguably the epitome of this kind of judicial- its decision, the Court addressed at great
ization was seen in the early postapartheid length the rationale behind the creation of a
years in South Africa: The “amnesty-for- supranational European community and stip-
confession” formula had been given a green ulated the necessary conditions for generat-
light by the South African Constitutional ing democratic legitimacy at the supranational
Court in AZAPO (1996), allowing the es- level. The Court went on to define the legisla-
tablishment of the quasi-judicial Truth and tive purview of member states and national
Reconciliation Commission. With that court parliaments with respect to the EU and stated
ruling, the possibility of a radical redistri- that the Bundestag should retain functions
bution of wealth, not merely symbolic self- and powers of substantial importance. The
purification, in one of the most unequal poli- court also held that fundamental democratic
ties on earth was finally put to rest. principles of political participation and rep-
But the clearest manifestation of the ju- resentation did not prohibit German mem-
dicialization of core political controversies— bership in the EU, so long as the transfer of
arguably the type of judicialization of politics power to such bodies “remain[ed] rooted in
that is the hardest to reconcile with canoni- the right of German citizens to vote and thus
cal constitutional theory concerning the po- to participate in the national lawmaking pro-
sition of courts in a democracy—is the grow- cess” (Kommers 1997, p. 182). In other words,
ing reliance on courts for contemplating the the Court did not shy away from dealing
very definition or raison d’être of the polity. with an explicitly political question. Rather,
A recent example is the unprecedented in- it upheld the constitutionality of the Maas-
volvement of the Canadian judiciary in de- tricht Treaty—the constitutive document of
termining the status of bilingualism and the the “ever closer union” notion—specifically
political future of Quebec and the Canadian placing the Treaty under the judgment of Ger-
federation, including the Supreme Court of man Basic Law and its principles. Landmark
Canada’s landmark ruling in the Quebec Seces- rulings pertaining to EU membership and ex-
sion Reference (1998)—the first time a demo- pansion have been rendered by at least half a
cratic country had ever tested in advance the dozen other national high courts in Europe
legal terms of its own dissolution. The Court (e.g., the Hungarian Constitutional Court’s

ANRV344-PL11-05 ARI 8 April 2008 9:40
ruling of 2002 on Hungary’s association with lar interests vis-à-vis the formal Islamization
the EU). of law in Pakistan that took place in 1985.
Similar to the judicial construction of a Eu- In Malaysia and Nigeria, despite their perti-
ropean demos debate—both in its constitu- nent differences in formal accommodation of
tive nature and in its divisiveness—is the ju- religion, national high courts have drawn on
dicialization of collective identity, particularly federal/provincial jurisdictional boundaries to
relating to religion and state, and the subse- override legislative manifestations of popular
quent prominence of constitutional courts as religious drift at the provincial/state level.
secularizing agents in countries where popu- Nowhere is the judicialization of mega-
lar support for theocratic governance is on the politics more evident than in Israel. Not a sin-
rise. National high courts in Germany (e.g. gle week passes by without the Supreme Court
the Ludin Case, 2003) and Britain (Shahina of Israel (SCI) issuing a politically charged rul-
Begum, 2006) have recently addressed the ing that is widely reported by the media and
hotly contested question of differentiated cit- closely watched by the political system. The
izenship and the wearing of religious attire clearest examples of the SCI’s entanglement
in the public education system. The Euro- with formative questions of collective identity
pean Court of Human Rights was reluctantly are its spate of rulings concerning Israel’s self-
dragged into the matter with its controver- definition as a “Jewish and democratic state”
sial ruling in Leyla Sahin v. Turkey (2006). and the related question of “who is a Jew?”—
The Turkish Constitutional Court (TCC), arguably the most charged question pertain-
for its part, has been active in preserving the ing to collective identity in present-day Israel.
strictly secular nature of Turkey’s political sys- Let us explore in some detail this prime exam-
tem amid the growing popularity of principle of the judicialization of collective-identity
ples of theocratic governance. For instance, questions.
the TCC has continually outlawed antisecu- Since the establishment of the State of
larist political forces. It dissolved two major Israel in 1948, the fundamental collective-
Islamic parties—the Welfare (Refah) Party and identity issue on the table has been the issue of
the Virtue (Fazilet) Party—in 1998 and 2001, medinat hok (a state based on civil law) versus
respectively. In May 2007, the TCC annulled medinat halakhah (a state based on Jewish law).
the parliamentary vote that had designated the Israel’s constitutional system is based on two
AK Party (pro-Islamic) nominee, foreign af- fundamental tenets: that the state is Jewish and
fairs minister Abdullah Gül, as president. democratic. The creation of an ideologically
In a similar vein, Egypt’s Supreme Con- plausible and politically feasible synthesis be-
stitutional Court has played a central role in tween particularistic ( Jewish) and universal-
dealing with the core question of the status of istic (democratic) values has been the major
Shari’a rules—arguably the most controver- constitutional challenge faced by Israel ever
sial and fundamental collective-identity issue since its foundation. Reaching such a syn-
troubling the Egyptian polity. Bounded by Ar- thesis is especially difficult because approxi-
ticle 2 of the Constitution (stating that Shari’a mately one fifth of Israel’s citizenry (exclud-
is the the primary source of legislation in ing the Palestinian residents of the West
Egypt), the Court has developed its own mod- Bank and Gaza Strip) consists of non-Jews—
erate “interpretation from within” of religious primarily Muslims, Christians, and Druzes.
rules and norms (e.g., Niq’ab [veil] Case, 1996). Even within the Jewish population, the mean-
A few thousand miles away, the Supreme ing of a “Jewish state” has been highly con-
Court of Pakistan retained its jurisdictional tested. Opinions differ bitterly as to whether
authority, including its appellate capacity over Jews are citizens of a nation, members of a
the new Shari’at Appellate Bench. This has people, participants in a culture, or follow-
repeatedly proved to be a safety net for secu- ers of a faith. The latter is arguably the most
104 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
stable of these constructions, but even among From 1989 onwards, the SCI delivered
Jews as coreligionists there are widely diver- over a dozen landmark judgments on a ques-
gent beliefs and degrees of practice. tion at the heart of the state’s collective iden-
Nevertheless, for historical and political tity. The judicialization of the conversion
reasons, the Orthodox stream of the Jewish question culminated in early 2002 with the
religion has long been the sole branch of Ju- SCI’s historic decision (9:2) to recognize non-
daism formally recognized by the state. This Orthodox conversions to Judaism performed
exclusive status has enabled the Orthodox abroad. In its most recent ruling on the sub-
community to establish a near-monopoly over ject (March 2005), the Court agreed (7:4)
the supply of public religious services and to to recognize non-Orthodox “bypass” conver-
impose rigid criteria for determining “who is sions to Judaism performed de jure abroad
a Jew?” (This question has crucial symbolic but de facto in Israel. It held that a person
and practical implications; according to Is- who came to Israel as a non-Jew and, during a
rael’s Law of Return, Jews who immigrate period of lawful residence there, underwent
to Israel are entitled to a variety of bene- conversion in a recognized Jewish commu-
fits, including the immediate right to full citi- nity abroad would be considered Jewish. In
zenship.) All this has taken place while over its judgment, the Court stated: “The Jewish
two thirds of the world’s Jewry—on whom nation is one . . . . It is dispersed around the
Israel relies for symbolic, material, and strate- world, in communities. Whoever converted
gic support—continues to live outside of to Judaism in one of these communities over-
Israel and does not subscribe to the Ortho- seas has joined the Jewish nation by so doing,
dox stream of Judaism. and is to be seen as a ‘Jew’ under the Law
To add further complications, the past of Return. This can encourage immigration
three decades have witnessed a continuous de- to Israel and maintain the unity of the Jewish
cline in the political power and representation nation in the Diaspora and in Israel.” Recall
of Israel’s historically hegemonic Mapai (La- that this was supposed to be a court ruling,
bor) party and its largely secular Ashkenazi not a political speech or manifesto.
constituencies (mostly Jews of European de- On the matter of Jewishness and related
scent). This trend has been evident in virtually topics, the Court delivered the goods for its
all of Israel’s majoritarian decision-making largely secular-nationalist proponents. Over
arenas, from the presidency and the Knesset the past two decades, it has pursued a dis-
(parliament) to the municipal sphere. On the tinctly liberalizing agenda in core matters of
legislative front, the potentially far-reaching religion and state. At the same time, it has also
Hok Yesodot Ha’Mishpat (the foundations of protected the “Jewishness” pillar of the state’s
law) was passed in 1980, making Jewish law collective identity. In a landmark ruling (Fam-
(Mishpat Ivri) a formal source of interpretation ily Unification Case, 2006), the SCI upheld—
in instances involving precedent or legal la- in a 263-page 6:5 decision—the new Citizen-
cunae. Into this boiling political cauldron the ship and Entry to Israel Law, which imposes
SCI was flung. This has resulted in the Court’s age restrictions on the granting of Israeli cit-
transformation into a (if not the) main forum izenship and residency permits to Arab resi-
for addressing the country’s most fundamental dents of the Occupied Territories who marry
collective-identity quandaries. As with other Israeli citizens. Because the practice of marry-
contested political affairs in Israel, the politi- ing Palestinians is far more common among
cal system’s inability or unwillingness to con- Israel’s Arab minority, the law effectively tar-
front the issue (aided by the incredibly lenient gets Arab citizens, while maintaining the “de-
standing and access rights to the SCI) brought mographic balance” in favor of Israel’s Jew-
the question of “who is a Jew?”—to pick one ish population. The dividing line between the
example—to the Court. majority and dissenting opinions was between

ANRV344-PL11-05 ARI 8 April 2008 9:40
the Justices who favored the first tenet in and democratic state, or Ireland’s Catholicism
Israel’s self-definition as a Jewish and demo- and EU membership (e.g., Jacobsohn 2004).
cratic state, and those who gave priority to the It is also more likely when the values pro-
second. tected in a country’s constitution contrast with
The wave of judicial activism that has values prevalent among its populace. Con-
swept the globe in recent decades has en- sider Turkey’s strict separation of religion and
gulfed the most fundamental issues a demo- state despite the fact that the vast majority
cratic polity ought to address. Although foun- of Turks define themselves as devoted Mus-
dational political questions of this nature lims. An all-encompassing judicialization of
may have important constitutional aspects, politics is, ceteris paribus, less likely in a polity
they are not purely, nor even primarily, le- featuring a unified, assertive political system
gal dilemmas. Therefore one would think that is capable of restraining the judiciary. In
they ought to be resolved, at least in princi- such polities, the political sphere may sig-
ple, through public deliberation in the politi- nal a credible threat to an overactive judi-
cal sphere. Nonetheless, constitutional courts ciary, exerting a chilling effect on the courts.
throughout the world have become major Conversely, the more dysfunctional or dead-
decision-making bodies for dealing with pre- locked the political system and its decision-
cisely such dilemmas. Fundamental restora- making institutions are in a rule-of-law polity,
tive justice, regime legitimacy, and collective- the greater the likelihood of expansive judicial
identity questions have been framed in terms power (Guarnieri & Pederzoli 2002, pp. 160–
of constitutional claims (often for rights and 81). Greater fragmentation of power among
entitlements), and as such, have rapidly found political branches reduces their ability to
their way to the courts. rein in courts and correspondingly increases
the likelihood of courts asserting themselves
(Ferejohn 2002).
EVERYTHING IS POLITICAL A more “realist” guise suggests that the
Like any other major socio-legal phe- judicialization of politics is largely a prod-
nomenon, the judicialization of politics across uct of concrete choices, interests, or strate-
a wide spectrum results from a confluence of gic considerations by self-interested political
factors rather than any single cause. As indi- stakeholders. From the politicians’ point of
cated at the beginning of this article, scholars view, delegating policy-making authority to
have identified a number of possible reasons the courts may be an effective means of shift-
and explanations for it: the emergence of the ing responsibility and thereby reducing the
administrative state, the prevalence of rights risks to themselves and to the institutional ap-
discourse, institutional features, and the ju- paratus within which they operate. The cal-
dicial quest for greater impact. However, re- culus of the “blame deflection” strategy is
cent studies by a new generation of political quite intuitive. If the delegation of powers
scientists have started to identify the concrete can increase credit or legitimacy, and/or re-
political conditions that are conducive to the duce the blame placed on the politician as a
judicialization of mega-politics. result of the delegated body’s policy decision,
In its structuralist guise, this branch of then such delegation can benefit the politician
scholarship emphasizes organic features of (Voigt & Salzberger 2002). At the very least,
the political system as conducive to judicial- the transfer to the courts of contested politi-
ization. For example, the judicialization of cal “hot potatoes” offers a convenient retreat
collective-identity questions may reflect con- for politicians who are unwilling or unable to
stitutional disharmony caused by a polity’s settle public disputes in the political sphere.
commitment to apparently conflicting val- Delegation also helps politicians avoid diffi-
ues, such as Israel’s self-definition as a Jewish cult or “no win” decisions and/or the collapse
106 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
of deadlocked or fragile governing coalitions support a powerful judiciary to ensure that

(Graber 1993). Conversely, political opposi- the next ruling party cannot use the judiciary
tions may seek to judicialize politics (e.g., to achieve its policy goals. Scholars draw on
through petitions and injunctions against gov- this “competitiveness of the electoral mar-
ernment policies) in order to harass and ob- ket” logic to explain the variance in judicial
struct governments (Tate & Vallinder 1995). power between Japan and the United States
Opposition politicians may even resort to lit- (Ramseyer 1994), between different periods
igation to enhance their media exposure, rein the late nineteenth-century United States
gardless of the outcome of litigation (Dotan (Gillman 2002), between three postauthori-
& Hofnung 2005). tarian Asian countries (Ginsburg 2003), and
Politicians may seek public support for between two Argentine provinces (Chavez
contentious views by relying on national 2003).
high courts’ public image as professional and The threat of losing control over perti-
apolitical decision-making bodies. A political nent policy-making processes and outcomes
quest for legitimacy often stands behind the may be a significant driving force behind
transfer of certain regime-change questions attempts to transfer contentious issues to

to courts (e.g., the aforementioned Pakistani courts. Politicians are more likely to divert
Supreme Court legitimization of the 1999 policy-making responsibility to a relatively
military coup d’état). Empirical studies con- supportive judiciary when present or prospec-
firm that national high courts in most con- tive transformations in the political system
stitutional democracies enjoy greater pub- seem to threaten their own political status
lic legitimacy and support than virtually all and policy preferences. Influential sociopo-
other political institutions—even when courts litical groups fearful of losing their grip on
engage in explicit manifestations of political political power may support the judicializa-
jurisprudence (Gibson et al. 2003). The judi- tion of mega-politics, and to establish judi-
cialization of mega-politics may allow govern- cial review and empower constitutional courts
ments to impose a centralizing “one-rule-fits- more generally, as a hegemony preserving ma-
all” policy on enormous and diverse polities neuver. Such groups and their political rep-
(Morton 1995, Goldstein 2001). (Following in resentatives are more likely to support the
this vein, consider the standardizing effect of judicialization of formative nation-building
apex-court jurisprudence in exceptionally di- and collective-identity questions when their
verse polities such as the United States or the hegemony, worldviews, and their entitlement
European Union.) Likewise, when politicians to disproportional perks and benefits are be-
are obstructed from fully implementing their ing increasingly challenged in majoritarian
own policy agenda, they may favor the active decision-making arenas (Hirschl 2004a).
exercise of constitutional review by a sympa- White elites in South Africa discovered the
thetic judiciary in order to overcome those virtues of judicial review only when it be-
obstructions (Hirschl 2004a,b; Whittington came clear that the days of apartheid were
2005, 2007). numbered. Israel’s Mapai (Labor) party and
The judicialization of politics may reflect its mainly Ashkenazi bourgeoisie constituen-
the competitiveness of a polity’s electoral mar- cies opposed judicial review for decades but
ket or governing politicians’ time horizons. embraced constitutional supremacy once the
According to the “party alternation” model, country’s electoral balance shifted against it.
for example, when a ruling party expects to The Mexican government, led for more than
win elections repeatedly, the likelihood of an seven decades by PRI (Partido Revolucionario
independent and powerful judiciary is low. Institucional ), launched a major expansion of
When a ruling party has a low expectation judicial power during the 1990s as it became
of remaining in power, it is more likely to clear that PRI’s control over Mexican politics

ANRV344-PL11-05 ARI 8 April 2008 9:40
was about to end (e.g., Finkel 2005). My semiautonomous policy-making bodies, do-
favorite example is the attempt by the his- mestic or supranational, may be seen as part
torically hegemonic secular-nationalist Fatah of a broader process whereby political and
movement in its last days of majority in the economic elites, while professing support for
Palestinian Legislative Authority to establish a democracy, attempt to insulate substantive
constitutional court with wide judicial-review policy making from the vicissitudes of demo-
powers, following the landslide victory by the cratic politics (Hirschl 2004a, pp. 211–23).
religious Hamas movement in the January When seen through that prism, there is lit-
2006 parliamentary elections. In short, it is the tle qualitative difference between the polit-
arrival of political competition, or the emer- ical origins of constitutional courts, state-
gence of a new constellation of power, that established religious authorities, central banks
makes threatened elites discover the charms of and other vital planning bodies, the World
constitutional protection and powerful courts. Trade Organization, and the International
As we have seen, the politicians’ drive to- Monetary Fund. Judicial empowerment is
ward using the courts when it is politically simply a weak form of that trend. One of the
expedient to do so is perhaps best illustrated clearest manifestations of this dynamic is the

in countries where growing popular support continuous attempt by “Eurocentric” politi-
for principles of theocratic governance threat- cians, bureaucrats, and jurists to create an
ens the cultural propensities and policy pref- “ever closer union” in Europe by the adoption
erences of secular-nationalist elites. It is well of an EU constitution. As was demonstrated
established in the literature that constitu- by the rejection in 2004 of a proposed EU con-
tionalization and the introduction of judicial stitution by voters in France and the Nether-
review improve the international reputation lands, attempts by elites to impose constitu-
and credibility of regimes (see, e.g., Moustafa tionalization are often resented by the demos.
2003). But this is only part of the picture.
In countries struggling with the dilemma of
constitutional theocracy, constitutional courts POLITICAL REACTION TO
may also be viewed as the guardians of rela- EXCESSIVE JUDICIAL ACTIVISM
tive secularism, modernism, and universalism Arguments concerning the political construc-
against increasingly popular theocratic princi- tion of judicial power are hard to ascertain
ples. In order to govern effectively, politicians positively. Intentional delegation of authority
and ruling elites in predominantly religious is hard to positively ascertain. As we have seen,
polities must confront the challenge of consti- the distinction between what counts as mega-
tutional theocracy while maintaining popular politics and what counts as ordinary politics
support for their regimes. Indeed, an increas- is often intuitive and context-specific rather
ingly common strategy for those who wield than analytical or universal. Akin to other
political power (and represent the groups that complex sociopolitical phenomena, multiple
object to theocratic governance) is the trans- causality is inevitable; disentangling the con-
fer of fundamental collective-identity ques- tribution of political factors from that of other
tions of “religion and state” from the political judicial or institutional factors is an almost im-
sphere to the courts. Consequently, constitu- possible task. Incentives are abstract and hard
tional courts have become important secular- to pinpoint. Paper trails are virtually nonexis-
izing agents in these countries (Hirschl 2004b, tent; few political power holders would pub-
2009). Recall the examples of the judicializa- licly confess to strategic calculations in their
tion of core collective-identity questions in support of such noble ventures as constitu-
Israel, Egypt, Malaysia, Pakistan, and Turkey. tionalism or judicial independence, let alone
The transfer of contested “big questions” willful deference to the judiciary in matters
to courts and other quasi-professional and involving very high political stakes.
108 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
Scholars’ attempts to meet these chal- judges have had a general legal education and
lenges may be guided by John Locke’s maxim are familiar with Wsestern law’s basic prin-
“I have always thought the actions of men ciples and methods of reasoning. More of-
the best interpreters of their thoughts.” Per- ten than not, the judges’ educational back-
haps the clearest illustration of the necessity of ground, cultural propensities, and social mi-
political support for judicialization is the po- lieu are closer to those of the urban intelli-
litical sphere’s decisive reaction to instances gentsia and top state bureaucrats than to any
of unwelcome judicial activism. To begin other social group. Constitutional courts are
with, the transfer of foundational collective- established and funded by the state. Their
identity questions to the courts seldom yields judges are appointed by state authorities, of-
judgments that run counter to established na- ten with the approval of political leaders. A
tional meta-narratives. The history of consti- judge’s record of adjudication is well known
tutional jurisprudence, from apartheid South at the time of his or her appointment. What
Africa to Pinochet’s Chile, tells us that na- is more, the very logic of modern constitu-
tional high courts tend to be silent or oth- tional law and courts—with their state-driven
erwise numb under authoritarian regimes, legitimacy and authority, procedural rules of
whether as a result of legacies of passivity and engagement, methods and styles of reason-
formalism (e.g., Hilbink 2007), their judges’ ing, and often measured approach to polit-
ideological preferences, or their strategic con- ically charged questions—seems intrinsically
siderations vis-à-vis other national decision- consonant with a moderate approach to issues
making bodies (e.g., Helmke 2005). Like- of religion and state.
wise, the advancement of substantive, not Occasionally, courts may respond to
merely symbolic, restorative justice through counter-establishment challenges with rul-
the courts has been, at best, incremental and ings that threaten to alter the political power
lethargic. Courts hand down decisions that fa- relations in which the courts are embedded.
vor the powerless primarily when doing so is Legislatures in most countries in the world
consistent with elite values and interests. of new constitutionalism have been able to
Political power holders often possess some respond effectively to such unfavorable judg-
control over the personal composition of na- ments or to hinder their implementation. As
tional high courts. As a recent comparative the recent history of comparative constitu-
study of judicial appointment procedures con- tional politics tells us, recurrent manifesta-
cludes, no matter how the process is con- tions of unsolicited judicial intervention in
structed, it always has an important polit- the political sphere in general—and unwel-
ical dimension (Malleson & Russell 2006). come judgments concerning contentious po-
Consequently, the demographic characteris- litical issues in particular—have triggered sig-
tics, cultural propensities, and ideological tilts nificant political backlashes aimed at clipping
of supreme court judges in most countries are the wings of overactive courts. These include
likely to match the rest of the political elite legislative overrides of controversial rulings,
in these countries. As Dahl (1957, p. 291) ob- political tinkering with judicial appointment
serves with regard to the US Supreme Court, and tenure procedures to ensure the appoint-
“it is unrealistic to suppose that a Court whose ment of compliant judges and/or to block the
members are recruited in the fashion of the appointment of undesirable judges, “court-
Supreme Court justices would long hold to packing” attempts by political powerhold-
norms of rights of justice that are substantially ers, disciplinary sanctions, impeachment or
at odds with the rest of the political elite.” The removal of judges deemed objectionable or
appeal of judicialization is even more evident overactive, the introduction of jurisdictional
in polities facing deep divisions along secu- constraints, or limiting jurisdictional bound-
lar/religious lines. Most constitutional court aries and judicial review powers. In some

ANRV344-PL11-05 ARI 8 April 2008 9:40
instances (e.g., Russia in 1993, Kazakhstan in Australian High Court’s expansion of Aborig-
1995, Zimbabwe in 2001, Pakistan in 2007, inal rights is another prime example of polit-
and on three occasions in Ecuador from 2004 ical interference in the judicial process. In its
to 2007), such a backlash has ended in consti- historic ruling Mabo v. Queensland II (1992),
tutional crisis, leading to the reconstruction the High Court abandoned the legal concept
or dissolution of high courts. To this we may of terra nullius (“vacant land”) that had served
add another political response to unwelcome for centuries as the basis for the institutional
rulings—more subtle, and possibly more denial of Aboriginal title, established native
lethal: bureaucratic disregard, or protracted title as a basis for proprietary rights in land,
or reluctant implementation (Rosenberg and held that Aboriginal title was not extin-
1991, 1992; Garrett et al. 1998; Conant 2002). guished by the change in sovereignty. In Wik
Examples of the legislative override sce- Peoples v. Queensland (1996), the High Court
nario in the world of new constitutionalism went on to hold that leases of pastoral land by
are plentiful. American executives and legis- the government to private third parties did not
latures have frequently revised, hampered, or necessarily extinguish native title. Such ex-
circumvented constitutional court rulings. In tinguishment depended on the specific terms

its famous ruling in Mohammed Ahmad Khan v. of the pastoral lease and the legislation un-
Shah Bano (1985), the Supreme Court of India der which it was granted. The potentially far-
held that the state-defined statutory right of reaching redistribution implications of Mabo
a neglected wife to maintenance stood re- II and Wik prompted an immediate popu-
gardless of the personal law applicable to the lar backlash; the powerful agricultural and
parties (Shachar 2001, pp. 81–83). This de- mining sectors, backed by the governments
cision had potentially far-reaching implica- of Queensland, Western Australia, and the
tions for India’s longstanding practice of Mus- Northern Territory, demanded an across-the-
lim self-jurisdiction in core religious matters. board statutory extinguishment of native title.
Traditionalist representatives of the Muslim In early 1997, the conservative government
community considered this to be proof of under John Howard willingly bowed to the
Hindu homogenizing trends that threatened counter-court political backlash by introduc-
to weaken Muslim identity. India’s Parliament ing amendments to the Native Title Act that,
bowed to massive political pressure by con- for all intents and purposes, overrode Wik.
servative Muslims and overruled the Indian Responding promptly to an unfavorable
Supreme Court’s decision in Shah Bano by ruling by the Singapore Court of Appeal
passing the Muslim Women’s (Protection of concerning due process rights of political
Rights of Divorce) Act. This Act, its reassur- dissidents detained for “communist conspir-
ing title notwithstanding, undid the Court’s acy to overthrow the government,” the gov-
ruling by removing the rights of Muslim ernment of Singapore (controlled for the
women to appeal to state courts for post- past four-plus decades by the People’s Action
divorce maintenance payments. It also ex- Party) amended the constitution to revoke the
empted Muslim ex-husbands from other post- Court’s authority to exercise any meaning-
divorce obligations. The Court, it seemed, ful judicial review over governmental pow-
understood the message. In a case dealing with ers of preventive detention. In a widely publi-
the constitutionality of the Muslim Women’s cized ruling in 1993, the Judicial Committee
Act (Danial Latifi v. Union of India, 2001), the of the Privy Council ( JCPC) in London over-
Court’s ruling was notably more moderate and turned a decision of a Singaporian district
ambiguous than its original ruling in Shah court to expel J.B. Jeyaretnam—a leading
Bano. opposition politician—from the Singapore
The harsh political reaction to, and Bar Association. Prior to its judgment Je-
corresponding legislative override of, the yaretnam, the JCPC’s status at the apex of
110 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
Singapore’s judicial system appeared invio- Justice (Dorit Beinish) triggered the proposal
lable. But as soon as the JCPC issued a rul- of a law that limits the incumbency of chief
ing that ran against the political interests justices to seven years.
of Singapore’s ruling elite, it was denounced In March 2007, Pakistan’s President
by government officials as “interventionist,” Musharraf ordered Supreme Court judge
“going outside its prescribed role,” “out of C.J. Iftikhar Chaudhry to resign, presumably
touch” with local conditions, and “playing for being overly independent and therefore
politics.” Mere months after the JCPC had “unreliable.” Protests by Pakistani lawyers
issued its ruling, the Singapore government and opposition groups, instigated by follow-
passed a constitutional amendment that im- ers of Benazir Bhutto, led to fierce clashes
posed severe restrictions on appeals to the with police. Meanwhile, Musharraf’s popu-
JCPC. larity in both the domestic and the inter-
Recognizing the crucial political signifi- national political arenas took a deep dive.
cance of the judiciary, politicians in other new Sensing Musharraf’s political difficulties, the
constitutionalism countries have opted for Pakistan Supreme Court ordered in July 2007
tighter control over the judicial appointment the reinstatement of Chaudhry. The embat-
process. In late 1997, for example, a serious tled Musharraf had to accept the ruling be-
rift developed between Pakistani Prime Min- cause maintaining his hold on power now
ister Nawaz Sharif and the Chief Justice of depended on Bhutto’s support. A few weeks
the Supreme Court, Sajjad Ali Shah, over the later, the Court allowed the early return from
appointment of new judges to the court. The exile of Musharraf’s nemesis Nawaz Sharif.
constitutional crisis came to a dramatic end In April 1990, Argentina’s President Car-
when the chief justice was suspended from of- los Menem expanded that country’s Supreme
fice by rebel members of the Supreme Court. Court from five to nine members and single-
A crisis of a similar nature occurred in January handedly appointed the four new justices.
2000, when President Pervez Musharraf in- This blunt court-packing exercise effectively
sisted that all members of the Supreme Court created an automatic progovernment major-
pledge allegiance to the military administra- ity on the bench. Over the past few years,
tion. The judges who refused to take the President Eduardo Duhalde, and later Pres-
oath were expelled from the Court. Reacting ident Néstor Kirchner, have forced all mem-
to political turmoil following the controver- bers of this bloc to step down, thereby creating
sial expropriation of white farmers’ land in a distinctly more progressive court. Venezuela
2000, Zimbabwe’s President Robert Mugabe adopted a law in 2004 permitting President
and his ruling ZANU (PF) party ousted the Hugo Chávez’s coalition to both pack and
hostile C.J. Gubbay in March 2001 and ap- purge the country’s Supreme Court. The law
pointed the supportive Chidyausiku as new increased the number of justices from 20 to
Chief Justice of Zimbabwe’s Supreme Court 32 and simplified the mechanisms for re-
(Matyszak 2006). Mugabe also stacked the moving justices. In neighboring Ecuador, ma-
court with three other ZANU (PF) support- jor political crises in late 2004 and early
ers to ensure his party’s control over the ju- 2005 led to the dissolution of the Supreme
dicial branch. In Egypt, disciplinary hearings Court twice in four months. In April 2007,
were held against Egypt’s Supreme Constitu- Ecuador’s Congress, led by President Rafael
tional Court Judges Hisham el-Bastawisi and Correa’s supporters, sacked nine top judges af-
Mahmoud Mekki for openly accusing the gov- ter the Supreme Court ruled unconstitutional
ernment of electoral fraud in the November the dismissal of 51 lawmakers who had been
2005 elections. In 2007, a less-than-principled fired for opposing a referendum on consti-
rivalry between Israel’s incumbent Minister of tutional reform. At the same time in Trinidad
Justice (Daniel Friedman) and the new Chief and Tobago, Prime Minister Patrick Manning

ANRV344-PL11-05 ARI 8 April 2008 9:40
(of the mainly Afro-Trinidadian People’s litical responses to unwelcome activism or

National Movement) suspended Chief Justice interventions on the part of the courts, or
Satnarine Sharma (an Indo-Trinidadian) for even the credible threat of such a response,
allegedly trying to help ousted Prime Minis- can have a chilling effect on judicial decision-
ter Basdeo Panday (an Indo-Trinidadian and making patterns. Variations on the same logic
Manning’s chief political foe). explain prudent judicial behavior in coun-
The postcommunist world has also had tries as different as Argentina (Helmke 2005),
its share of anticourt backlash. The ap- Germany (Vanberg 2005), Pakistan (Newberg
pointments of several activist judges of the 1995), and Japan (Ramseyer & Rasmusen
Hungarian Constitutional Court, including 2001). Who says supreme court judges are not
that of Justice László Sólyom (now Hungary’s shrewd political animals?
president)—advocate of a form of judicial ac- Conversely, astute supreme courts may ob-
tivism based on an invisible constitutional serve that the changing fates of other influ-
“spirit” rather than text—were not renewed ential political actors could allow them to be
upon the completion of their initial nine-year less conformist in politically charged cases
term. Instead, the court was filled with new, (Newberg 1995, Helmke 2002). In November
notably more formalist judges, advocating ju- 2007, the Court was about to release a de-
dicial restraint (Schepple 1999). Kazakhstan’s cision that declared Musharraf ineligible to
first Constitutional Court was dissolved after head Pakistan’s armed forces while he serves
its election crisis in 1995, and a new French- as the country’s president. Musharraf reacted
style Constitutional Council was introduced. by declaring a state of emergency, suspending
The Albanian Constitutional Court was sus- the Constitution, and dismissing the Supreme
pended in 1998, its chair arrested, and a con- Court and C.J. Chaudhry.
stitutional amendment limiting the justices’
tenure to nine years introduced.
Arguably, the most glaring example in the CONCLUSION: “DON’T LET
postcommunist world is the widely docu- THE FACTS RUIN YOUR
mented 1993 constitutional crisis in Russia. As (CONSTITUTIONAL) THEORY”
is well known, President Boris Yeltsin reacted Over the past two decades, there has been
to an overactive involvement of the first Con- a tremendous growth worldwide in the re-
stitutional Court in Russia’s political sphere liance on courts for dealing with some of the
by decreeing the Constitutional Court sus- most fundamental political quandaries a polity
pended until the adoption of a new constitu- can contemplate. The trend has extended
tion. This marked the demise of the first Con- well beyond the now standard judicialization
stitutional Court and the downfall of its con- of policy making through procedural justice
troversial Chair, Valerii Zorkin, and brought or rights jurisprudence, to encompass mega-
about the establishment of the second Con- politics—electoral processes and outcomes,
stitutional Court. A controlled comparison restorative justice, regime legitimacy, execu-
of the dockets of the first and second Con- tive prerogatives, and foundational collective-
stitutional Courts (Epstein et al. 2001) re- identity issues and nation-building processes.
veals that in the first Court era the docket The judicialization of mega-politics reflects
was dominated by politically charged federal- the demise of the “political question” doctrine
ism and separation-of-powers cases, whereas (see, e.g., Tushnet 2002) and marks a transi-
the second Court resorted to the “safe area” tion to what I have elsewhere termed “juris-
of individual rights jurisprudence and tended tocracy” (Hirschl 2004a).
to avoid federalism issues or separation-of- The crucial point in assessing the scope of
powers disputes. In other words, harsh po- this phenomenon is not, as a few observers
112 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
have suggested, whether a large number of This should come as no surprise to those
public policy matters are handled with little who view courts as political institutions. Like
judicial intervention (Graber 2004, Schauer any other political institution, they do not op-
2006). No doubt many are. The question erate in an institutional or ideological vac-
is whether the courts today are significantly uum. Their establishment does not develop
more involved in dealing with core political and cannot be understood separately from
predicaments than they were, say, a genera- the concrete social, political, and economic
tion ago. At least outside the United States, struggles that shape a given political system.
the answer, both quantitatively and qualita- Political deference to the judiciary and the
tively, is unequivocally in the affirmative. The consequent judicialization of mega-politics—
proportion of policy-making areas that are in- indeed, the profound expansion of judicial
sulated from judicial intervention is distinctly power more generally—are an integral part
smaller in 2008 than it was 25 years ago. Com- and an important manifestation of those
pared to the early 1980s (roughly a generation struggles. A political quest for legitimacy, or
ago), many more hitherto purely political is- for lowering risks or costs, is often what drives
sues are now considered primarily judicial or deference to the judiciary, in cases involving
constitutional issues. hotly contested political issues. In short, ev-
Lawyers and rights-seeking groups often erything is political. This insight suggests that
push toward “judicialization from below.” the court-centric orthodoxy common among
Certain institutional features are more hos- legal scholars is misguided. As the examples
pitable than others to the expansion of judicial discussed here illustrate, the portrayal of con-
power. The existence of an active, nondefer- stitutional courts and judges as the major cul-
ential constitutional court is a necessary (but prits in the all-encompassing judicialization of
not sufficient) condition for persistent judi- politics worldwide is simplistic. Strategically
cial activism and the judicialization of mega- motivated political stakeholders are at least
politics. However, as a recent set of studies as responsible. The judicialization-of-politics
suggests, the judicialization of mega-politics fish, to paraphrase the old saying, stinks from
is first and foremost a political phenomenon. its head first.
No matter how we look at it, various key With a few notable exceptions (e.g., Balkin
issues—the secular nature of Turkey’s politi- & Levinson 2001, Friedman 2005, Posner
cal system, the war in Chechnya, Israel’s iden- 2005, Tushnet 2006, Vermule 2006), constitu-
tity as a “Jewish and democratic state,” the tional law professors continue to ignore perti-
transition to democracy in South Africa, the nent political science literature that points to
near-permanent political limbo in Pakistan, political, not juridical, sources of judicial en-
the creation of a European demos, the fu- tanglement with pure politics. Scholarship by
ture of Quebec and the Canadian federation— a new generation of political scientists study-
are first and foremost political questions, not ing law and the courts suggests that no theory
judicial ones. A political sphere conducive of judicial review (or grand constitutional the-
to the judicialization of such purely politi- ory more generally) is complete if it does not
cal questions is therefore at least as signif- consider the political determinants of judicial
icant in its emergence and sustainability as empowerment and behavior, and the interplay
the contribution of courts and judges. It is between the political and judicial spheres. Any
naive to assume that core political questions constitutional theory that sticks to an idealist
of the type described in this article could have notion of constitutional law as a politically un-
been transferred to courts without at least encumbered sovereign virtue or unreservedly
the implicit support of influential political portrays constitutional courts as a “forum of
stakeholders. principle” grossly misrepresents reality.

ANRV344-PL11-05 ARI 8 April 2008 9:40
DISCLOSURE STATEMENT
The author is not aware of any biases that might be perceived as affecting the objectivity of
this review.
ACKNOWLEDGMENTS
I am grateful to Nancy Rosenblum, Allan Hutchinson, and Ayelet Shachar for their helpful
comments and suggestions. An earlier version of this article was presented in seminars at the
Center for Advanced Study in the Behavioral Sciences, Stanford University and at the De-
partment of Government, the University of Texas, Austin. I thank the participants of these
seminars, especially Gary Jacobsohn, Larry Kramer, and Sanford Levinson, for their illumi-
nating questions, as well as Jennie Rubio for her editorial assistance.
APPENDIX: MAIN CASES CITED

This article refers to more than 120 landmark constitutional court rulings from over 50 juris-
dictions worldwide. Below is a list of the 35 main cases.
Corte Suprema de Justicia (CSJN), 26/10/2004, Bustos, Alberto Roque y otros v. Estado
Nacional y otros/amparo (Corralito Case) [Argentina]
Corte Suprema de Justicia (CSJN), 14/06/2005, Simón, Julio Héctor y otros s/privación
ilegı́tima de la libertad, Supreme Court (Full-Stop Law Case) [Argentina]
Mabo v. Queensland II (1992) 175 C.L.R. 1 [Australia]
Wik Peoples v. Queensland (1996) 187 C.L.R. 1 [Australia]
A and others v. Sec’y of State for the Home Dep’t (2004) UKHL 56, X and another v. Sec’y of
State for the Home Dep’t (2005) 2 WLR 87 (Belmarsh Case) [Britain]
R (on the application of Begum (Shabina)) v The Headteacher and Governors of Denbigh High
School (2006) UKHL 15 [Britain]
R (Al Skeini) v Secretary of State for Defence (2007) UKHL 26 [Britain]
Reference re Secession of Quebec, (1998) 2 S.C.R. 217 [Canada]
Chaoulli v. Quebec (2005) 1 S.C.R. 791 [Canada]
Pl.US 19/1993 Decision on the Act on the Illegality of the Communist Regime [Czech
Republic]
Wassel v. Minister of Education (the Niq’ab [veil] Case), No. 8 of the 17th judicial year (May
18, 1996) [Egypt]
Proceedings No. 10–1993, In re: General Amnesty Law [El Salvador]
Leyla Sahin v. Turkey 19 BHRC 590 [2006] ELR 73 [European Court of Human Rights]
Republic of Fiji Islands v. Prasad (2001) 1 LRC 665 (HC), (2002) 2 LRC 743 (CA) [Fiji]
BVerfGE] [Federal Constitutional Court] 89, 155 (F.R.G.) (Maastricht Case, 1993)
[Germany]
BVerfG [Federal Constitutional Court] 2 BvR 1436/02 A.I.1 (F.R.G) (Ludin Case)
[Germany]
HCC Decision 43/1995 Austerity Package Case [Hungary]
Mohammed Ahmed Khan v. Shah Bano Begum, A.I.R. 1985 S.C. 945 [India]
Danial Latifi v. Union of India, A.I.R. 2001 S.C. 3958 [India]
Report No. 28/1992 In re: Full Stop and Due Obedience Laws [Inter-American Commis-
sion on Human Rights]
HCJ 5100/94 Pub. Comm. Against Torture in Isr. v. State of Isr. (1999) IsrSC 53(4) 817
(Torture Case) [Israel]
114 Hirschl
ANRV344-PL11-05 ARI 8 April 2008 9:40
HCJ 5070/95 The Conservative Movement v. Minister of Religious Affairs (2002) 1 TakEl
634 (Non-orthodox Conversions Case) [Israel]
HCJ 2056/04 Beit Sourik Vill. Council v. The Gov’t. of Isr. (2005) IsrSC 58(5) 807 (West
Bank Barrier Case) [Israel]
HCJ 7052/03 Adalah v. Minister of the Interior, (2006) 2 TakEl 1754 (Family Unification
Law Case) [Israel]
2004 Hun-Na 1, Impeachment of the President Roh Moo-hyun Case (16–1 KCCR 609, May
14, 2004) [Korea]
Te Waka Hi Ika o Te Arawa v. Treaty of Waitangi Fisheries Commission (2000) 1 N.Z.L.R.
265 [New Zealand]
Russian Federation Constitutional Court’s Ruling Regarding the Legality of President Boris
Yeltsin’s Decree To Send Troops To Chechnya (July 31, 1995) [Russia]
Chng Suan Tze v. Minister of Home Affairs (1988) 1 S.L.R. 132 [Singapore]
Azanian Peoples’ Organization (“AZAPO”) v. President of the Republic of S. Afr. 1996 (4) SA
672 (CC) [South Africa]
Certification of the Constitution of the Republic of S. Afr. 1996 (4) SA 744 (CC) [South Africa]
Certification of the Amended Text of the Constitution of the Republic of S. Afr. 1997 (2) SA 97
(CC) [South Africa]
STC 237/2005, Rigoberta Menchú Tumn y otros v. a Tribunal Supremo/amparo 1744–2003,
Sept. 26, 2005 (Universal Jurisdiction of Spanish Courts in Genocide Cases) [Spain]
Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pak., P.L.D. 2000 S.C. 869
[Pakistan]
TCC Decision 1/1998 (Welfare [Refah] Party Dissolution case), January 16, 1998
[Turkey]
TCC Decision 57/2001 (Virtue [Fazilet] Party Dissolution case), June 21, 2001 [Turkey]
Bush v. Gore, 531 U.S. 98 (2000) [United States]
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Annual Review of
Political Science
Contents Volume 11, 2008
State Failure
Robert H. Bates p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p1
The Ups and Downs of Bureaucratic Organization

Johan P. Olsen p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 13
The Relationships Between Mass Media, Public Opinion, and Foreign

Policy: Toward a Theoretical Synthesis
Matthew A. Baum and Philip B.K. Potter p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 39
What the Ancient Greeks Can Tell Us About Democracy
Josiah Ober p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p 67
The Judicialization of Mega-Politics and the Rise of Political Courts
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Debating the Role of Institutions in Political and Economic
Development: Theory, History, and Findings
Stanley L. Engerman and Kenneth L. Sokoloff p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p119
The Role of Politics in Economic Development
Peter Gourevitch p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p137
Does Electoral System Reform Work? Electoral System Lessons from
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Ethan Scheiner p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p161
The New Empirical Biopolitics
John R. Alford and John R. Hibbing p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p183
The Rule of Law and Economic Development
Stephan Haggard, Andrew MacIntyre, and Lydia Tiede p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p205
Hiding in Plain Sight: American Politics and the Carceral State
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Private Global Business Regulation
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Pitfalls and Prospects in the Peacekeeping Literature
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v
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Discursive Institutionalism: The Explanatory Power of Ideas

and Discourse
Vivien A. Schmidt p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p303
The Mobilization of Opposition to Economic Liberalization
Kenneth M. Roberts p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p327
Coalitions
Macartan Humphreys p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p351
The Concept of Representation in Contemporary Democratic Theory
Nadia Urbinati and Mark E. Warren p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p387
What Have We Learned About Generalized Trust, If Anything?
Peter Nannestad p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p413

Convenience Voting
Paul Gronke, Eva Galanes-Rosenbaum, Peter A. Miller, and Daniel Toffey p p p p p p p p p437
Race, Immigration, and the Identity-to-Politics Link
Taeku Lee p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p457
Work and Power: The Connection Between Female Labor Force
Participation and Female Political Representation
Torben Iversen and Frances Rosenbluth p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p479
Deliberative Democratic Theory and Empirical Political Science
Dennis F. Thompson p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p497
Is Deliberative Democracy a Falsifiable Theory?
Diana C. Mutz p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p521
The Social Processes of Civil War: The Wartime Transformation of
Social Networks
Elisabeth Jean Wood p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p539
Political Polarization in the American Public
Morris P. Fiorina and Samuel J. Abrams p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p563
Indexes
Cumulative Index of Contributing Authors, Volumes 7–11 p p p p p p p p p p p p p p p p p p p p p p p p p p589

Cumulative Index of Chapter Titles, Volumes 7–11 p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p591
Errata
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Faculty of Law and Department of Political Science, University of Toronto,

Annu. Rev. Polit. Sci. 2008. 11:93–118 Key Words

INTRODUCTION gion, the rights of privacy and equality, and

www.annualreviews.org • Rise of Political Courts 95

www.annualreviews.org • Rise of Political Courts 97

institutional features hospitable to judicial The proliferation of administrative agen-

in particular. As I suggest in my concluding salient in similarly process-heavy policy areas

www.annualreviews.org • Rise of Political Courts 99

A FEW ILLUSTRATIVE (e.g., Italy’s Silvio Berlusconi, Peru’s Alberto

civilians in determining the legality of “tar- bution, eradication of poverty, or subsistence

www.annualreviews.org • Rise of Political Courts 101

involvement of the Pakistan Supreme Court while applying a compound of international

contentious across-the-board amnesty to took the liberty of articulating with author-

www.annualreviews.org • Rise of Political Courts 103

www.annualreviews.org • Rise of Political Courts 105

of deadlocked or fragile governing coalitions support a powerful judiciary to ensure that

transfer of certain regime-change questions attempts to transfer contentious issues to

www.annualreviews.org • Rise of Political Courts 107

expedient to do so is perhaps best illustrated clearest manifestations of this dynamic is the

www.annualreviews.org • Rise of Political Courts 109

circumvented constitutional court rulings. In tinguishment depended on the speciﬁc terms

www.annualreviews.org • Rise of Political Courts 111

(of the mainly Afro-Trinidadian People’s litical responses to unwelcome activism or

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APPENDIX: MAIN CASES CITED

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Cambridge, MA: MIT Press

www.annualreviews.org • Rise of Political Courts 117

pearance of the political question doctrine. NC Law Rev. 80:1203–35

Contents Volume 11, 2008

The Ups and Downs of Bureaucratic Organization

The Relationships Between Mass Media, Public Opinion, and Foreign

Discursive Institutionalism: The Explanatory Power of Ideas

Peter Nannestad p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p p413

Cumulative Index of Contributing Authors, Volumes 7–11 p p p p p p p p p p p p p p p p p p p p p p p p p p589

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