This chapter explores and expands upon Charles Epp’s canonical idea of judicial reliance on support structures for success in issuing and implementing decisions. It does so in two ways. First, it draws on examples from a number of countries to argue that support structures are heterogeneous, and that much can be gained by focusing on the different patterns of support for courts. One might, for example, differentiate between political parties, ordinary court judges, domestic civil society groups of different types, international NGOs, or various slices of the public; different forms of support may affect judicial behavior and success in predictable, testable ways. Second, it argues that courts are not just passively reliant on their support structures, but rather that they can take actions, within limits, to strengthen and influence them. It gives examples of ways in which courts can build support from the public, international actors, and other groups.
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Lee Epstein and Jack Knight
After establishing that judges are sensitive to the consequences and enforceability of their decisions, this chapter outlines four methods judges use to help ensure that their decisions are efficacious (i.e. respected by external actors): anticipating the reaction of relevant (current) external actors, anticipating the reactions of incoming external actors, developing avoidance procedures and limiting doctrines, and cultivating public opinion. The chapter draws on evidence from Germany, the United States, Canada, South Africa, and other countries to illustrate these methods.
The chapter tackles the special case of judicial review in divided societies, where judges are required to interpret the constitution in the context of ongoing public, political, and constitutional debates on the vision of the state. While empowered judiciaries are expected to serve as chief protectors of constitutionalism and liberalism, in divided societies they often face foundational controversies left unresolved by the constitutional drafters. Under such circumstances, courts’ involvement may intensify rather than mitigate identity conflicts. Drawing on the experience of India, Israel, and Tunisia, the chapter analyzes the risks and opportunities involved in constitutional drafting and constitutional interpretation in deeply divided societies, arguing that under conditions of foundational disagreements over the basic norms and values that should underpin the state, judicial intervention in controversial issues may generate a harsh political backlash and weaken the court’s legitimacy as a political neutral defender of democratic procedures.
Erin F. Delaney and Rosalind Dixon
The late 20th and early 21st centuries may well be marked as the Judicial Era. Courts have burgeoned across the globe. With this turn to judicial power has come the rise of judicial review—a court’s review of a legislative or executive act for constitutional compliance. Judicial review now exists in some form in more than two-thirds of countries worldwide (Dixon and Ginsburg, Chapter 3, this volume), including in many new and fragile democracies. And it has further expanded to the international arena, with judicial review by international courts of both supranational and national acts. Accompanying this rise of courts has been a growth in academic commentary and discussion about the justifications for and the scope of judicial review. Oftentimes the focus has been a normative analysis of the role of a court in a specific national system, but recent work has showcased a more theoretical and comparative trend (see, e.g., Daly 2017; Ginsburg 2003; Gloppen et al. 2004; Hirschl 2004, 2014; Issacharoff 2015; Kapiszewski et al. 2013; Sadurski 2008; Yap 2017). This volume builds on the existing literature by providing a distinct interdisciplinary and global approach to the core questions surrounding judicial review: What accounts for the adoption of judicial review in various contexts, or justifies its normative foundation? What determines its scope and effectiveness? How is it structured, institutionalized and operationalized? A key premise of this volume is that, to analyze courts and explore their constitutional role, we must situate them in a broader social and political context.
After a brief introduction to Public Reason, this chapter discusses the interconnection between Public Reason and judicial review. Canvassing examples from Canada, the United States, Germany, and Australia, the author argues that Public Reason can be, and in fact has been in certain cases, used to examine the constitutionality of motives behind legislation under review. After highlighting the evidentiary difficulties of identifying and proving motives within such a framework and outlining the clashes this can create between the judiciary and the legislature, this chapter concludes by arguing that Public Reason can help identify or “objectify” which motives are acceptable and which are not to allow review to work backwards from effects to impermissible motives. Such an approach would avoid the evidentiary issues presented above and put the legislature on notice of what would be required of future legislation.
This chapter begins by outlining trends in comparative citation, when courts look to foreign courts’ rulings in making their own decisions. Such trends include borrowing in areas of constitutional structure, constitutional interpretation techniques and modes of analysis, and comparative jurisprudence. Courts attach varying weights to such precedent: some considering it mandatory, others advisable, and yet others as voluntary. The author notes a declining American hegemony in comparative citation and the ascendency of new jurisprudential authority in the area (e.g. Canada, Germany, the European Court of Human Rights). The chapter outlines explanations from history, public law, and social science for where, when, and how constitutional courts and judges engage in comparative reference, and identifies significant reasons for comparative citations such as necessity, a desire to effect change within one’s national constitutional regime, judicial quest for legitimacy and well-grounded reasoning, and appeals to external authority in fledgling democratic systems. It concludes by exploring epistemological and methodological challenges of comparative citation research such as a reluctance to admit its historical roots, its focus on the Western liberal-democratic constitutional settings, the selective deployment of reference to foreign precedent, and the difficulty of tracking implicit borrowing.
Tonja Jacobi, Sonia Mittal and Barry R. Weingast
This chapter argues that the United States Constitution is self-stabilizing. A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, the authors argue that to be self-stabilizing, a constitution must: (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable adaptation over time. The Supreme Court—through powers of judicial review and institutional practices—has assumed an increasingly important role in maintaining constitutional stability. The chapter contends that the Court can lower the stakes, facilitate coordination and enable adaptation—strengthening the self-stabilizing characteristics of the Constitution—though it has not always done so. In so arguing, the authors offer a new framework for understanding the Court’s opinions, and ultimately, the work of the nation’s top judges.
Salma Waheedi and Kristen Stilt
This chapter begins by providing a background to Islamic law and constitutions in the Muslim world. The authors then present a classificatory scheme that outlines the different institutional design models for constitutional interpretation in Muslim countries. These include a secular model, an Islamic model, and a hybrid model, with different countries falling along a spectrum of variations. The chapter considers several case studies, such as Kuwait and Egypt for the secular model, Iran and Saudi Arabia for the Islamic model, and Malaysia, Afghanistan, and Pakistan for the hybrid model. The chapter concludes by highlighting the ways in which the political context and certain choices in constitutional drafting can foster one system or another along the spectrum.
Mila Versteeg and Emily Zackin
This chapter highlights a gap between a great deal of constitutional theory and a great deal of the practice of democratic constitution-making. Drawing on data from democratic national and state constitutions, we challenge the consensus among constitutional theorists that a central purpose of constitutionalism is the entrenchment (the fortification against future change) of broad principles. The empirical reality is that the majority of democratic constitutions today are subject to frequent revision, and are therefore ill-equipped to facilitate the entrenchment of their contents. To explore the logic of these un-entrenched documents, we identify the historical periods in which different geographic regions moved away from highly entrenched constitutions, and we examine the political contexts of these transformations. We find that, in each context, constitution-makers were attempting to limit the discretion of judges and legislatures by drafting highly specific texts and by updating them in response to continually changing circumstances.