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The Success 1 of Judicial Review and Democracy

Martin Shapiro

in On Law, Politics, and Judicialization

This is the first of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including ... More

This is the first of two papers that explore the politics of constitutional review – the power of a court or other organ of government to review the constitutionality of public acts, including legislation, and to void those acts as unlawful when they are found to be in conflict with the constitutional law. The paper is a composite of portions of two articles: The Success of Judicial Review, published in 1999, and The European Court of Justice: Of Institutions and Democracy, published in 1998. Based largely on American experience, Shapiro argues that constitutional judicial review is most likely to be successful (1) as a solution to an acute commitment problem, (2) when a constitutional court is serving politically and economically powerful interests, or (3) when it has served such interests in the past and uses the legitimacy accumulated earlier to move on to the service of the less powerful. He maintains that there are both historical and a priori reasons to believe that federalism review has the best chance of success, while the success of human rights review would appear to be more problematic, at least when it is not a follow-on to long-established judicial service to the politically advantaged. The different sections of the paper look at: the causal hypotheses that have been advanced for the process of constitutional judicial review in various European countries, the United States, Canada, and Australia (the federalism-English hypothesis; the division of powers hypothesis; the rights hypothesis); the situation in post-Leninist states; constitutional courts; courts as institutions; courts of law; case-by-case decision-making; legal epistemic communities and the strength of constitutional courts; the division of powers and rights; and democracy and judicial institutions.Less

The Early Republic: Establishment

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter examines the establishment of the federal judiciary from the beginning of George Washington's first term as president in 1789 to the end of Thomas Jefferson's first term in 1805. It ... More

This chapter examines the establishment of the federal judiciary from the beginning of George Washington's first term as president in 1789 to the end of Thomas Jefferson's first term in 1805. It considers three questions about the tumultuous politics of institutional design that followed the ratification of the Constitution: first, why judicial institution building was pursued; second, how it was accomplished; and third, what it achieved. It also discusses the three stages in which judicial institution building during this era occurred: stages: the policy compromise of 1789, the stalemate preventing large-scale judicial reform in the 1790s, and the flurry of policy and political initiatives of the early 1800s. The chapter concludes with an assessment of how Oliver Ellsworth's political entrepreneurship paved the way for a landmark, precedent-setting episode of judicial institution building that extended judicial power and expanded the judicial apparatus beyond simply the Supreme Court.Less

The Puzzle of Judicial Institution Building

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This book explores the historical processes contributing to the rise of the federal judiciary as an independent and autonomous institution of governance in the American political system. More ... More

This book explores the historical processes contributing to the rise of the federal judiciary as an independent and autonomous institution of governance in the American political system. More specifically, it examines the puzzle of “judicial institution building” —the puzzle of understanding how the process of “building” the judiciary unfolded over the course of American political development. The book examines how the federal judiciary in general, and the Supreme Court in particular, overcame its early limitations and emerged as a powerful institution of American governance. It also considers the transformation of the federal judiciary from “judicial exceptionalism” to what might be called “architectonic” politics and offers a developmental account of judicial power. The book shows that the story of the judiciary's transformation involved a series of battles over law, courts, and the politics of institutional development.Less

The Interwar and New Deal Years: Bureaucratization

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter examines the bureaucratization of the federal judiciary during the quarter century between the dawn of World War I in 1914 and the dawn of World War II in 1939. It shows how reformers ... More

This chapter examines the bureaucratization of the federal judiciary during the quarter century between the dawn of World War I in 1914 and the dawn of World War II in 1939. It shows how reformers during the interwar and New Deal periods insulated the judiciary from potentially dangerous (and increasingly unnecessary) relationships with the other branches of government and signaled the arrival of a more autonomous and self-governing branch. The chapter discusses the three stages in which judicial institution building occurred during the period in conjunction with the vast expansion of regulatory government. It also considers the role played by the political entrepreneurship of William Howard Taft and Homer Cummings in judicial institution building in the interwar and New Deal years.Less

The Civil War and Reconstruction: Empowerment

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter focuses on the empowerment of the federal judiciary from the Compromise of 1850 (admitting California into the Union as a free state and unofficially signifying the beginning of the ... More

This chapter focuses on the empowerment of the federal judiciary from the Compromise of 1850 (admitting California into the Union as a free state and unofficially signifying the beginning of the political crisis leading to the Civil War) to the Compromise of 1877 (settling the disputed 1876 presidential election between Samuel J. Tilden and Rutherford B. Hayes and representing the formal end of Reconstruction). The chapter asks why judicial institution building was pursued, how it was accomplished, and what it achieved within the context of mid-nineteenth century American politics. It examines the role of Republicans in Civil War and Reconstruction era institution building and how it resulted in a significant expansion of federal judicial power. It also considers the four stages in which the substantial empowerment of the judiciary occurred during the period, including the consolidation of a Republican-friendly Supreme Court through ameliorative reforms aimed at specific problems of judicial performance.Less

Jeffersonian and Jacksonian Democracy: Reorganization

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter examines the reorganization of the federal judiciary from the beginning of Thomas Jefferson's second term as president in 1805 until just prior to the Compromise of 1850. During the ... More

This chapter examines the reorganization of the federal judiciary from the beginning of Thomas Jefferson's second term as president in 1805 until just prior to the Compromise of 1850. During the first half of the nineteenth century, the government faced a new set of challenges, many of which were the result of the vast territorial expansion. Territorial expansion and the politics of statehood admission intertwined with judicial reform attempts focused primarily on arranging states in circuits and ensuring regional geographic representation on the Supreme Court. The chapter considers the four stages in which the history of judicial institution building unfolded in the eras of Jeffersonian and Jacksonian democracy: the Judiciary Act of 1807, the stalemate over the National Republicans' attempts to extend the circuit system to the West in the mid-1820s, the Whigs' failed consolidation plan of 1835, and the triumph of reform in the Judiciary Act of 1837.Less

The Gilded Age and the Progressive Era: Restructuring

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter considers the restructuring of the federal judiciary during the period of Republican dominance from the inauguration of Rutherford B. Hayes in 1877 to the inauguration of Woodrow Wilson ... More

This chapter considers the restructuring of the federal judiciary during the period of Republican dominance from the inauguration of Rutherford B. Hayes in 1877 to the inauguration of Woodrow Wilson in 1913. It shows that Gilded Age and Progressive Era politicians pursued judicial reform that focused less on the extent of judicial power and more on the structural logic and internal consistency of the institutional judiciary more generally. The chapter discusses the two stages in which judicial institution building occurred during the period: first, the Gilded Age attempt to unburden the Supreme Court by appointing a new slate of judges to staff circuit courts (1877–1891); and second, the Progressive Era unification and synchronization of all laws concerning the judiciary in one statute (1892–1914). The role played by Republicans and Democrats in judicial institution building in the Gilded Age and Progressive Era is also examined.Less

Modern America: Specialization

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This chapter examines the specialization of the federal judiciary from the start of World War II in 1939 to the election of Bill Clinton's presidential successor in 2000. Coming out of the New Deal, ... More

This chapter examines the specialization of the federal judiciary from the start of World War II in 1939 to the election of Bill Clinton's presidential successor in 2000. Coming out of the New Deal, politicians of modern America broadened the institutional portfolios of courts and judges with a series of specialized functions and individuals. This deepening of the bureaucratic tendency toward division of labor cemented the key role played by judicial power in modern governance. The chapter discusses the three stages in which judicial institution building occurred during this period: the enhancement and expansion of judicial adjuncts to execute administrative duties for and to relieve the growing caseload burden on federal district court judges; the reorganization of existing courts and judges in order to develop and utilize expertise to handle patent law; and the creation of a new tribunal to provide judicial scrutiny over domestic surveillance and intelligence gathering.Less

Public Order and Internal Security

Richard Caplan

in International Governance of War-Torn Territories: Rule and Reconstruction

Public order and internal security are the sine qua non of civil rule and, by extension, of the international administration of a territory. Examines international engagement in relation to the triad ... More

Public order and internal security are the sine qua non of civil rule and, by extension, of the international administration of a territory. Examines international engagement in relation to the triad of responsibilities—policing, the administration of justice, and the establishment of penal systems—that are most critical for the maintenance of law and order in a war-torn territory. Some of the issues addressed include supervisory versus executive policing, the role of military forces in policing, extra-judicial detention, war criminals, and reconciliation processes.Less

Judicial Power in a Political World

Justin Crowe

in Building the Judiciary: Law, Courts, and the Politics of Institutional Development

This concluding chapter synthesizes the book's main findings about the architectonic politics of judicial institution building and contextualizes them within contemporary debates. It also reflects ... More

This concluding chapter synthesizes the book's main findings about the architectonic politics of judicial institution building and contextualizes them within contemporary debates. It also reflects upon the lessons of the more than 200-year historical lineage of the institutional judiciary for our understanding of judicial power in America. More specifically, it considers the place of the federal judiciary in America's past and future in empirical and normative terms, respectively. It argues that both political rhetoric and academic exegesis about the Supreme Court embody a fundamentally incorrect presumption about the judiciary being external to politics, and that such presumption leads to a series of misconceptions about the relationship between judicial power and democratic politics. The chapter offers a conception that not only locates the judicial branch squarely within the political arena but also places substantially greater emphasis on its cooperation rather than conflict with other actors and institutions in that arena.Less

The Judicial Authority and Civil Society

al-Sayyed Mustapha Kamel

in Judges and Political Reform in Egypt

This chapter demonstrates how judges, acting as an arm of the state, curb the freedom of civil society institutions. It discusses the judges' involvement as a professional association through their ... More

This chapter demonstrates how judges, acting as an arm of the state, curb the freedom of civil society institutions. It discusses the judges' involvement as a professional association through their clubs in the fight by civil society organizations for more autonomy. It shows how certain judicial institutions strive to move civil and political liberties forward in order to expand the range of freedoms available to civil society organizations. It also surveys some of the ways civil society organizations have tried to win the judiciary to their side and get them to support their struggle for more respect for the civil and political rights of citizens. The period covered by this study is the duration of the Mubarak presidency, or twenty-six years at the time of writing, encompassing four presidential terms and two years of his fifth term.Less

Concluding Remarks

Theodor Meron

in Human Rights and Humanitarian Norms as Customary Law

Many human rights and humanitarian norms have already evolved into customary law. Many more norms will soon be recognized as customary law, and thus acquire universality, binding even those states ... More

Many human rights and humanitarian norms have already evolved into customary law. Many more norms will soon be recognized as customary law, and thus acquire universality, binding even those states that are not parties to the treaties to implement those norms. There has been an extensive interpenetration between the law of human rights and that of state responsibility. Each of these bodies of law has deeply affected the other. States can and should take advantage of the already-existing institutions and of the emerging principles of state responsibility to address violations of human rights and humanitarian norms through diplomatic channels or before international judicial and quasi-judicial bodies. The states must recognize that compliance with the norms serves their own interests. Informed public opinion may even move states in this direction.Less

Courts and Public Policy Reform in Brazil

in Judging Policy: Courts and Policy Reform in Democratic Brazil

This chapter discusses the theme of this book, which is about the role of the courts in public policy reform in Brazil. The book, which proposes a framework for understanding how courts are drawn ... More

This chapter discusses the theme of this book, which is about the role of the courts in public policy reform in Brazil. The book, which proposes a framework for understanding how courts are drawn into the policy game and how policy players use them to advance their strategic political objectives, attempts to integrate the courts into the body of existing research in comparative political science on political institutions and policy outcomes in Brazil. It also highlights the role of policy salience, political environment, and the judicial institutional environment in determining which public policies actually have their day in court.Less

The State, The Crown, and The Executive

Geoffrey Marshall

in Constitutional Theory

This chapter illustrates the way in which the term ‘State’ is used in ordinary or political conversation, and examines its nature, characteristics, and its practical and theoretical importance. The ... More

This chapter illustrates the way in which the term ‘State’ is used in ordinary or political conversation, and examines its nature, characteristics, and its practical and theoretical importance. The variety of nomenclature for State agencies in Britain is chaotic but the distinctions which are represented may well have a positive value. With ‘the Crown’, ‘the public’, ‘ministers’, ‘the nation’, ‘Parliament’, and the ‘executive’, any proposition may be asserted in which it is possible to advance a sentence containing the word ‘State’, and often with some gain in clarity. It may be true that little harm arises in general conversation from using ‘State’ as a label for executive, legislative, and judicial institutions when nothing turns upon the difference between them, but any detailed argument about political institutions requires an awareness of the differences between forms of governmental activity, and the term ‘State’ in certain contexts can be dangerously misleading.Less

Conclusion: Context, Authority, Power

Karen J. Alter, Laurence R. Helfer, and Mikael Rask Madsen

in International Court Authority

This concluding chapter returns to the conjectures developed in Chapter 2, extracting insights from the book’s empirical chapters to explore how context shapes the authority of ICs. While several of ... More

This concluding chapter returns to the conjectures developed in Chapter 2, extracting insights from the book’s empirical chapters to explore how context shapes the authority of ICs. While several of the conjectures were confirmed, others were not. We focus in particular on the limited impact of IC design features, the distinctive challenges faced by international criminal tribunals, and by ICs created during the post-Cold War era. The final section revisits the distinction between IC authority and IC power. We explain why IC authority is likely to remain fragile, and we revisit our claim that authority can not only increase but also stagnate or diminish over time.Less

Generating Incentives to Appoint Women to the International Bench: Experiences with State practice

Rolf Einar Fife

in Identity and Diversity on the International Bench: Who is the Judge?

Against the background of the diversity of international judicial institutions and of the criteria for the selection of judges, this chapter sketches recurrent common considerations in the practice ... More

Against the background of the diversity of international judicial institutions and of the criteria for the selection of judges, this chapter sketches recurrent common considerations in the practice of States as regards elections to the international bench. The observations are drawn from the perspective of a government representative who has been engaged in the international settlement of disputes. The exacting requirements of campaigning by States, in addition to the personal experience-based qualifications required of candidates, speak in favour of scrutiny of any early obstacles for the qualification of women to qualifying positions with international exposure. Gender-sensitiveness and mainstreaming are considered in relevant decision-making at domestic levels. The question is raised as to the importance of the practical choice of language in actual situations of national decision-making. In this regard, incentives for more appointments of women on the international bench may include not only arguments of fairness, but also of utility. Recalling basic premises expressed in agreed language at the international level as regards peace and security as well as sustainable development, may also promote dialogue to bridge cultural differences.Less

The Administration of Justice in a Broader Perspective

Yaacov Lev

in The Administration of Justice in Medieval Egypt: From the 7th to the 12th Century

The chapter examines the medieval system of administration of justice in comparative framework and from longue durée perspective. The chapter also discusses the nature of medieval communal identities.

Hybridization—A Spectrum of Creative Possibilities

Mark Kersten and Kirsten Ainley

in The President on Trial: Prosecuting Hissène Habré

This chapter assesses the emerging preference for hybrid judicial institutions. Recent years have seen a spate of hybrid tribunals established or proposed, from Syria and South Sudan, to the Central ... More

This chapter assesses the emerging preference for hybrid judicial institutions. Recent years have seen a spate of hybrid tribunals established or proposed, from Syria and South Sudan, to the Central African Republic and Sri Lanka. Perhaps most prominently, a hybrid court was set up in Dakar, Senegal, to prosecute former Chadian President Hissène Habré in 2013, a development that has stood out as the vanguard of a new generation of hybrid tribunals. The re-emergence of the hybrid tribunal has been addressed by numerous scholars. Yet despite its renewed popularity, it remains unclear what, precisely, it means to be a hybrid court and how the latest hybrids might contribute to furthering the project of international criminal justice. The answer to the first question is typically assumed to be simple: hybrid tribunals are ‘of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred’. However, hybrid tribunals are much more than just middle-ground institutions that marry national and international components. As this chapter demonstrates, they are institutions whose very hybridity creates productive space for creative solutions aimed at responding to some of the most endemic challenges facing international criminal justice.Less