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1 - Judicial Power and Democracy

from Part I - Democratic Legitimacy of Judicial Power

Published online by Cambridge University Press:  27 January 2019

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Summary

Democratic politics are built upon the politics are built upon the majority principle, but no contemporary constitutional democracy can live on that principle alone. To sustain key anti-majoritarian pillars of democracy, such as fundamental rights, it is often necessary to override majority politics through deployment of an anti-majoritarian institution – typically, the Constitutional or Supreme Court. In certain countries, like the United States, all major divisive political issues, such as abortion and same-sex marriage, typically end up before the courts. Accordingly, courts cannot avoid being in politics, but are judicial politics similar to ordinary politics? I defend the thesis that judges have a politics of their own that is distinguishable from ordinary politics, but that often blends and overlaps with the latter. Judicial politics concern the ideals, ideology, practices, and procedures of adjudication. In some exceptional cases, judges stray from their judicial politics and lapse into ordinary politics. Far from undermining the thesis I defend, these exceptional cases reinforce it by highlighting the bounds between what ought to be judicially permissible and what would cross the line of legitimate judicial politics.
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Judicial Power
How Constitutional Courts Affect Political Transformations
, pp. 21 - 35
Publisher: Cambridge University Press
Print publication year: 2019

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