Changes in Judicial Roles: The Elusiveness of Simple Explanatory Models

In his chapter in this volume, Martin Shapiro observes that “‘The mighty problem’ of constitutional judicial review” raises a major empirical challenge: “when, where, and why do the powers that be…allow a handful of judges without purse or sword to get away with making major policy decisions?” (Ch. 16 in this volume, p. 380). In recent decades, the salience of these questions has increased. More political regimes have established constitutional courts. More courts have overruled legislation and executive orders. Thus, more judges have played important roles in politics, policy, and governance. However, in some countries, courts have been cautious about engaging in judicial review or, when they have done so, have been politically attacked and driven to retreat. In other regimes, political authorities have preempted or limited the exercise of judicial review, preventing an expansion of judicial roles in governance.

Faced with this variation, scholars interested in the political roots of judicial power have focused on three related aspects of Shapiro's when, where, and why questions. Under what conditions are courts granted (or do they themselves adopt) judicial review powers and significant remedial authority? Under what conditions do courts exercise those powers assertively? Under what conditions can courts exercise those powers both assertively and successfully (i.e., achieving compliance with their rulings)?

In early nineteenth-century America, Alexis de Tocqueville (1835) famously observed, “[S]carcely any political question arises…that is not resolved, sooner or later, into a judicial question.” That may have been a considerable exaggeration at the time, but today, the dynamic Tocqueville highlighted marks many constitutional democracies in which independent courts are vested with powers of judicial review. In such countries, political actors, organizations, and ordinary individuals who become enmeshed in political conflicts have strong incentives to frame their desires as constitutional or statutory claims and ask courts to vindicate them.

As a result, in the early twenty-first century, courts have become versatile actors in the governance of many constitutional democracies, and judges and justices play multiple roles in politics and policymaking. *As many observers have noted, politically consequential courts have emerged in new democracies from Korea to South Africa to Brazil and beyond; courts in more established democracies such as Canada and New Zealand have been given or have assumed more power to protect individual rights and invalidate government policies; and both the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have taken on dramatic roles in European governance.

Many who study the courts and the role of judges in politics and policymaking limit their examination to those areas in which judges seize control of policy choices – or have that control thrust on them. But that is only part of the story of law's allure. Juridification, as it is used here, means not only the use of courts to solve policy problems but also the ways in which legal reasoning, legal frameworks, judicial language, and legal forms have come to shape and constrain the political process itself.

Constitutional ambiguity has its virtues, but it also has its vices. “The doctrine of the separation of powers.” Justice Louis Brandeis said, “was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power.” It was not, Justice Felix Frankfurter noted, a scheme of government well designed to act with “complete, all-embracing, swiftly moving authority.” Ambiguity was unavoidable in such a complicated system. And ambiguity was the lubrication that allowed the system to adjust, making it possible, but not easy, to act. But ambiguity can also lead to profound friction and conflict that, in turn, can prevent essential government action. It creates loopholes and gaps, which provide opportunities for exploitation and abuse.

In the wake of the urban unrest of the 1960s, the failure of the effort to end the Vietnam War, and then Watergate, there was a great demand for major reform and a growing conviction that the system simply was no longer capable of solving key problems through the ordinary political process of negotiation, bargaining, and elections.