Judicial Power: How Constitutional Courts Affect Political Transformations

Description

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. 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