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Judicial Empowerment and Political Regimes

Constitutions
Elections
Political Parties
Courts
Jurisprudence
P176

Building: Maths, Floor: 3, Room: 325

Friday 11:00 - 12:40 BST (05/09/2014)

Abstract

A growing empirical literature has argued that judicial empowerment in democratic states is best understood as a form of politics by other means. Yet the theoretical accounts offered are not always consistent. Ginsburg (2003), for example, utilizes a strategic view of electoral competitiveness to argue that elites empower courts as “insurance” mechanisms. Hirschl (2004), on the other hand, adopts a “realist” framework, suggesting elites judicialize politics to protect neo-liberal policies against popular reform. Still others argue that ideational and institutional factors are at the root of judicial empowerment (Woods and Hilbink 2009). One promising route for integrating insights from these and other explanations for judicial empowerment is a “regime politics” approach (Clayton and Pickerill 2004; Graber 2005; Gillman 2008; Whittington 2008). Under this approach the study of constitutional development is incorporated into a more general set of theories about how partisan political elites relate to judicial power when organizing power and advancing their agendas. Rather than viewing the relationship between courts and elected elites as unrelated or as one-dimensional (strategic, realist, ideational, etc.), they are viewed as influencing each other in a variety of ways, often with unexpected consequences. Under this view courts and law are part of “political regimes”; or relatively stable electoral party systems that rise to power, govern under a more or less stable set of constitutional understandings, and then decline, only to be replaced by a new electoral order (Skowronek 1993). Understanding judicial power, from this perspective, thus begins by placing them in the broader context of the contestation of constitutional values between major political parties and groups. The approach draws upon the full range of theoretical accounts and methodological tools for explaining judicial empowerment, and thus may offer a more complete explanation for the ebb and flow of judicial power in democratic states.

Title Details
Transnational Elite Networks and the Dormancy of Parliaments: The Causes of Judiciary Empowerment in Central and Eastern Europe View Paper Details
The Roberts Court and Regime Politics in the US View Paper Details
After the Revolution: How Regime Politics Constrain Judicial Independence in Australia View Paper Details
Electoral Politics and The Canadian Supreme Court View Paper Details
Judicial Power and Regime Politics in France View Paper Details