The power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power - legal scholars, political scientists, and judges - take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.
Author(s): Christine Landfried
Publisher: Cambridge University Press
Year: 2019
Language: English
Pages: xviii+392
Judicial Power: How Constitutional Courts Affect Political Transformations
Contents
List of Contributors
Acknowledgments
Introduction
Constitutional Adjudication as a Resource for Democratic Governance
Legitimacy and Effectiveness through Modes of Decision-Making
Structure of the Book
Democratic Legitimacy of Judicial Power
Democratic Effectiveness of Judicial Power
Political Context Matters
Conclusion
Part I: Democratic Legitimacy of Judicial Power
1 Judicial Power and Democracy
Introduction
Building Blocks of Successful Constitutional Judicial Review
Conclusion
2 Judicial Politics versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle?
Introduction
Law as a “Language Game” and the Dialectic between Constitutionalization of Politics and Politicization of the Constitution
The Constitutionalization of Politics in Judicial Decisions
Legitimating the Constitutionalization of Politics within the Proper Scope of Judicial Politics
Conclusion
3 Judicialization of Politics or Politicization of the Courts in New Democracies?
Introduction
Role(s) of Constitutional Courts
Judicialization
Accountability
Conclusion
4 European Judicial Appointments Reform: A Neo-Institutionalist Approach
Introduction
Historical Developments
The Prehistory
The Panels
An Intergovernmentalist Explanation
A Neo-Institutionalist Explanation
Conclusion
5 The Law of Democracy and the European Court of Human Rights
Introduction
General Considerations Involving Constitutionalizing Democratic Politics
The ECtHR’s Attempt to Define Democratic Rights
Restrictions on Paid “Political Advertising”
Access to the Vote for Prisoners
Campaign Finance
Of Britain, Brighton, Brexit, and Judicial Exits
Conclusion
Part II: Democratic Effectiveness of Judicial Power
6 Constitutional Court and Politics: The Polish Crisis
Introduction
1985–2015: The 30 Years of History
October 2015–December 2016: The 15 Months of Crisis
2017: The “New Constitutional Court”
Conclusion
7 Democracy, Political Crisis, and Constitutional Jurisdiction: The Leading Role of the Brazilian Supreme Court
Introduction
The Constitutional Jurisdiction in Brazil: A Unique System
The 1988 Constitution and the Profile of the Brazilian Supreme Court after Re-Democratization
The Brazilian Model of Judicial Review
The Criminal Jurisdiction of the Supreme Court: Political Crisis and Corruption
Supreme Court’s Performance: Emblematic Rulings
Brazilian Supreme Court and Fundamental Rights
The Brazilian Supreme Court, Political Crisis, and Criminal Law
The Roles of Constitutional Courts in Brazil and in the World
The Counter-Majoritarian Role
The Representative Role
The Enlightened Role
Conclusion
8 Judicial Power and European Integration: The Case of Germany
Introduction
History: The Long Way to Judicial Review in Germany
Who Is the Guardian of the Constitution?
Law Trumps Politics
The Relationship between European Integration and the German Constitutional Order
The German Constitution (1949)
The Return of Sovereignty: A New Direction after Reunification?
The Case Law of the German Constitutional Court on European Union Matters
The Pre-Reunification Case Law
After Reunification: Discovering Sovereignty and Parliament
The German Constitutional Court as a Political Player before the Euro Crisis?
The Euro Crisis
The German Constitutional Court and the Euro Crisis
The Outright Monetary Transactions Case
Subsequent Developments
Beyond the Euro Crisis: What Next?
9 Fundamental Rights in Europe after Opinion 2/13: The Hidden Promise of Mutual Trust
Introduction
Jurisdictional Overlap
The Impact of Opinion 2/13
Jurisprudential Cross-Fertilization
Beyond Comity? The Normative Case for Judicial Dialogue
Part III: Legitimacy, Effectiveness, and Judicial Methods of Decision-Making
10 Transnational Judicial Interactions and the Diplomatization of Judicial Decision-Making
Introduction
Problems of Judicial Cooperation in a Transnational Context
Delicacy of Relationship between National and Transnational Courts
Gaps in Knowledge and Sensitivity
Diversity of Legal Cultures
Types of Cooperation
Extra-Case-Law Cooperation
Intra-Case-Law Cooperation
Decision-Making and Drafting Opinions with a View to Reception by Partner Courts
Hints by Obiter Dictum
Special Instruments of In-Case Cooperation
Diplomatization of Judicial Decision-Making
Ping-Pong Games
Conflict and Approximation: Preventive Detention
Conflict and Approximation: The European Central Bank’s Government Bond Purchase Programs
Hazards of Diplomatization
11 Judging Methods of Mediating Conflicts: Recognizing and Accommodating Differences in Pluralist Legal Regimes
Introduction
Diffusing Distinctions of Territorial Boundaries: Trans-Local Organizations of Government Actors
Jurisdictional Essentialism and Federalism Discounts to Accommodate Differences
Conclusion
12 On the Representativeness of Constitutional Courts: How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining Their Independence
Introduction
Volitional Representativeness: Judges between Judicial Self-Selection and Democratic Election
Identitarian Representativeness
Argumentative Representativeness
Interpretative Methodology
Styles of Opinion Writing
A Unitary Court or a Plurality of Opinions
Vicarious Representativeness
Conclusion
13 After the Heroes Have Left the Scene: Temporality in the Study of Constitutional Court Judges
Introduction
Why Do Heroic Judges Come on the Scene?
The Successor Courts
Non-Heroic Courts: Sustained Performance at Low and High Levels
Conclusion: The Importance of Temporality
Part IV: Judicial Power in Processes of Transformation
14 What Exactly Is Political about Constitutional Adjudication?
15 Populism, Constitutional Courts, and Civil Society
Introduction
The Disempowerment of Constitutional Courts
The Political Identity Called Populism
The Harm to Constitutional Democracy in Attacks on Courts
The Cooperation between Courts and Civil Society in Fighting Populist Authoritarianism
16 Judicial Power in Processes of Transformation
Introduction
Modes of Transformation and the Role of the Judiciary
“Transitional Constitutionality”
Excursus on the Crisis of the Constitutional State
Constitutional Courts as Targets of Vehement Rejection
17 Neither Legal nor Illegal: Today’s Operational Spaces Barely Captured in Law
Introduction
Today’s Borders: Many More Than the Law Can Recognize
Locating the Border
Thick Territorial Inserts
Finance: An Assemblage of Capabilities
The Specifics of Today’s Capital Market
An Emergent Field for Transactions
Eroding the Status of Sovereign Debt: The Rise of Vulture Funds
Vulture Funds Bring Sovereigns to Their Knees
International Legal Avenues for Sovereign Default
Conclusion
Index
