The Political Foundations of Judicial Power

Mark Graber

Daniel Solove's recent comment on this blog that if judicial review did not exist, elected officials would invent it, expresses what is rapidly becoming conventional wisdom among political scientists and many law professors. Judicial review, we are coming to understand, is politically constructed. Adjudication is one of many means politicians and political movements employ when seeking to make their constitutional visions the law of the land. Elected officials provide vital political foundations for judicial power by creating constitutional courts, vesting those courts with jurisdiction over constitutional questions, staffing those courts with judges prone to exercising judicial power, assisting or initiating litigation aimed at having those courts declare laws unconstitutional, and passing legislation that encourages justices to make public policy in the guise of statutory or constitutional interpretation. Rather than thwart or legitimate popular majorities, judicial review is better conceptualized as a practice that alters the balance of power between the numerous political movements that struggle for power in a pluralist democracy.

Ran Hirschl's Towards Juristocracy is a particularly fascinating examination of the political foundations of judicial power. Hirschl's "hegemonic preservation thesis" details how the rise of judicial review in Israel, South Africa, Canada, New Zealand, and many other countries resulted from actions taken by elected officials and interest groups fearful of losing political power. His Toward Juristocracy describes how in recent years "constitutional reform" has served as a vehicle for "tranferr(ing) an unprecedented amount of power from representative institutions to judiciaries." "When their policy preferences have been, or are likely to be, increasingly challenged in majoritarian decision-making arenas," Hirschl observes, "elites that possess disproportionate access to, and influence over, the legal arena may initiate a constitutional entrenchment of rights and judicial review in order to transfer power to supreme courts." Fulfilling this constitutional mission, courts throughout the world are more likely to declare unconstitutional legislation that limits liberties exercised by the politically powerful than protect powerless minorities. The right to make unlimited campaign contributions is presently gaining more judicial solicitude worldwide than rights to basic necessities. Hirschl’s study of comparative constitutional law in action "contrast(s) the limited impact of constitutionalization on enhancing the life conditions of the have-nots with its significant contribution to the removal of so-called market rigidities and the promotion of economic liberties." Needless to say, Hirschl's thinking may help explain why conservative justices have been far more willing to cut back on Warren Court decisions that protected the poor and persons of color, and willing to expand decisions consistent with the socially liberal values held by most elites.

Persons interested in the best recent domestic account of the political foundations of judicial power should read Howard Gillman, "How Political Parties Can Use the Courts To Advance Their Agendas: Federal Courts in the United States, 1875-1891," 96 American Political Science Review 511 (2002) (Keith Whittington has an excellent forthcoming piece on a similar subject).
Posted 11:42 AM by Mark Graber [link]