'Juristocracy' Political, not Juridical

Author(s): Ran Hirschl

Source: The Good Society, Vol. 13, No. 3 (2004), pp. 6-11
Published by: Penn State University Press
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SYMPOSIUM

6Juristocracy'

not Juridical

Political,

Ran Hirschl
In numerous countries around theworld, fundamental consti
transferred an unprecedented amount of

tutional reform has

power from representative institutions to judiciaries, whether

domestic or supra-national. One of themost significant effects of
this trendhas been the transformationof courts worldwide into
bodies

major

and a corresponding

political decision-making
judicialization of "mega" politics. The ever-accelerating judi
cialization trainhas long leftthe traditional separation of powers
and rights jurisprudence stations. From
core

executive

as

such

prerogatives

national security matters and macro

economic policymaking to founda
tional collective

identity and nation

building quandaries, from restorative
justice to regime change controversies
disputes, courts have
become crucial fora for dealing with
themost fundamental questions a dem
and electoral

ocratic polity can contemplate. This

global trend towards juristocracy is
arguably one of the most significant
in late-twentieth and
centurv

Everything is Justiciable
Armed with judicial review procedures, constitutional courts
inmost leading democracies have been frequently called upon to
determine a range of matters, from the scope of expression and
religious freedoms, privacy and reproductive rights, to public
policies pertaining to education, immi

Despite thegrowing reliance on

courts and judicial means for articu
lating and determining core political
issues, mainstream

theory discourse

constitutional
remains preoccu

pied with thesomewhat exhausted,

concern

often abstract, debate

ing the counter-majoritarian

and

nature

of judicial review and the tension

between

fundamental

constitutionalism
democratic
principles.

developments

earlv-twentv-first

- as
rather than self-interested, risk-averse politicians
judges
the source of evil.

government.

and

governing

gration,

criminal

commerce,
environmental

justice,

consumer

property,
and

protection,

regulation.

Bold

news

paper headlines reporting on landmark

court rulings concerning hotly con
tested

issues

as

such

same

sex mar

riage, limits on campaign finance, or

affirmative

action

have

become

a com

mon phenomenon. This is true in the

United States, where the legacy of
active judicial review recentlymarked
itsbicentennial anniversary, and where
courts have long played a significant
role

in nolicv-makine

and

also

in

Despite the growing reliance on courts and judicial means for

articulating and determining core political issues, mainstream

younger constitutional democracies thathave established active

judicial review mechanisms only in the past few decades.

constitutional theory discourse remains preoccupied with the

somewhat exhausted, and often abstract, debate concerning the
counter majoritarian nature of judicial review and the tension

However, the expansion of theprovince of courts indetermin

ing political outcomes has not only become more globally wide
spread than ever before; ithas also expanded in its local scope to
become a manifold, multifaceted phenomenon, extending well

between constitutionalism and fundamental democratic govern

ing principles. Perhaps nowhere is the gap between the ought
and the is levels of academic

inquiry as clear as with the divide

between grand constitutional theory and the study of real-life

constitutional law and politics worldwide. In thispaper I address
one aspect of this gap - the tendency of constitutional theorists
to overlook the political conditions under which judicial
activism is likely to emerge.
I begin by briefly illustrating the key role of constitutional

beyond the now "standard" concept of judge-made policy-mak

ing through constitutional rights jurisprudence or judicial
redrawing of legislative boundaries between state organs.1 From
post-authoritarian Latin America and post-communist Europe to
so called "settler societies," courts have become the ultimate
venue fordealing with fundamental restorative justice dilemmas.
During the past few years alone, constitutional courts in over

courts worldwide

twenty countries have been called upon to determine the politi

cal futureof prominent political leaders through impeachment or

courts and adjudicative means for articulating and dealing with

core political questions could not have developed without the

trials. The Philippines' president Estrada,

disqualification
Indonesia's presidentWahid, Thailand's PrimeMinister Thaksin,
Pakistan's prime ministers Benazir Bhutto and Nawaz Sharif,

support (tacit or explicit) of political power-holders. Critics of

judicial "hyper activism" tend to overlook thepolitical origins of
deference to courts, therebymisguidedly portraying courts and

Peru's president Fujimori, and Russia's president Boris Yeltsin,

to name but a few examples, have all had their political fate
determined by courts. Even the fate of political regimes in the

in confronting fundamental political issues. I

thenmove on to suggest that the ever-accelerating reliance on

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exotic island nations of Fiji, Madagascar,

and Trinidad and
has
been
determined
tribunals.
Tobago
Likewise,
by judicial
courts have become ultimate decision makers in disputes over
election outcomes, most recently in Taiwan. In that respect, the
Bush v. Gore courtroom struggle over the fate of theAmerican
presidency was anything but an idiosyncratic moment in the
recent history of comparative constitutional politics. From judi
cial review of the constitutionality of thewar inChechnya or the

thatwill certainly increase with theEU enlargement and the cor

responding adoption of theEU Constitution).
In short, the view that "nothing falls beyond the purview of
judicial review; theworld is filled with law; anything and every
thing is justiciable" as Aharon Barak, the proactive Chief Justice
of the Supreme Court of Israel once said, appears to have become
a widely accepted motto by courtsworldwide. The wave of
judi
cial activism thathas swept the globe in thepast few decades has

Pervez Musharraf-led military coup d'etat inPakistan to judicial

appraisal of Argentina's economic policies, Hungary's welfare
there is now hardly any
regime, or Germany's place in theEU
core political controversy in theworld of new constitutionalism

not bypassed themost fundamental issues a democratic

polity
ought to address whether it is coming to termswith its own

thatdoes not sooner or laterbecome a judicial one. Even courts

inBritain and New Zealand - countries fairly recently described

questions are uniquely or intrinsically legal; whereas some have

certain importantconstitutional aspects, they are neither purely,

as the last bastions ofWestminster-style parliamentary sover

eignty have become key players in the respective political sys
tems inwhich they operate. Arguably the clearest manifestation
of thewholesale

judicialization of core political controversies is

the growing reliance on courts for con
templating the very definition, or rai

son d'etre, of the polity as such.A few

textbook
include
the
examples
involvement
of
the
unprecedented
judiciary in dealing with the
status of bilingualism and the political

Canadian

futureof Quebec and theCanadian fed

eration, including the Supreme Court
of Canada's
landmark ruling in the
Secession
Quebec
Reference (1998)
the first time a democratic country had

(often not so admirable) past or grapplingwith its embedded col

lective identityquandaries. None of these recently judicialized

nor even primarily, legal dilemmas. As such, they

ought to be
resolved, at least on the level of principle, throughpublic deliber

ation in the political sphere. Nonetheless, national high courts

throughouttheworld have gradually become major decision-mak
ing bodies for dealing with precisely
such dilemmas. Fundamental distribu

Even as a new typeofpolitical

-

regime -juristocracy

is rapidly

establishing itselfthroughoutthe
world of new constitutionalism,
dozens of lengthyarticles published
inAmerica s leading law reviews
toportray an
continue
eveiyyear
almost exclusively
court-centric
picture

of constitutional

framed in termsof constitutional claims

(often for rights and entitlements), and
as such, have rapidly found theirway to
the courts.

Everything is Political

law.

Even as a new typeof political regime

is
juristocracy
rapidly establishing itself throughouttheworld
of new constitutionalism,dozens of lengthyarticles published in

ever tested in advance the legal termsof its own dissolution; the
constitutional certification saga in South Africa - the first time a

court refused to accept a national constitutional textdrafted by a

America's

representative constitution-making body; the key role the

Turkish Constitutional Court has played inpreserving the strictly

tive justice, regime legitimacy,and col

lective identity questions have been

leading law reviews every year continue to portray an

almost exclusively court-centricpicture of constitutional law.Most
of these articles are preoccupied with the compatibility of past or

secular nature of Turkey's political system, by continually out

lawing anti-secularist political forces in that country.Additional,

presentAmerican constitutionaljurisprudencewith grand constitu

tional theory.Almost none pay any attention to the critical institu

and equally instructive examples would include the crucial role

of courts in constitutional theocracies such as Egypt orMalaysia

tional and political conditions within which constitutional courts

operate and judicial review is exercised. Fundamental questions
such as where judicial power originates;what accounts for the sig
nificant variance in the timing, scope, and nature of constitutional

in determining the nature of public life in thesemodern states

formally governed by principles of Islamic Shan a laws; the
wholesale
transfer of the deep religious/secular cleavage in
Israeli society to the Israeli judiciary through the judicialization
of the question of "who is a Jew?" and the corresponding
entanglement of the Israeli Supreme Court in interpreting
Israel's fundamental definition as a "Jewish and Democratic
State." And we have not yetmentioned the emergence of judicial
institutions as major political actors at the supra-national level.
(Think of the key role the European Court of Justice has played
in enforcing and accelerating theEuropean integration- a role

reformacross theworld of new constitutionalism; orwhat political

conditions support the maintenance and expansion of judicial
power are seldom addressed by constitutional theorists.Even more
concrete questions such as theeffectof institutionalfeaturesof judi
cial

review

(e.g.

single

court

versus

all-court,

abstract

versus

con

crete,a priori or a posteriori review) on judicial engagementwith

politics are addressed almost exclusively by political scientists,not
by legal scholars.None of Ronald Dworkin's six books on consti
tutionalism, for example, refer to any of these fundamental
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questions or even cite any secondary sources dealing with the ori
gins and consequences of constitutionalizationand judicial review.2

are more relevant for understanding the origins of judicial power

thanmost canonical works by constitutional theorists.

Indeed, this is a near perfect illustrationof a "don't let thefacts ruin

your theory" approach, as my fatherused to say.And Dworkin
most
the
arguably
prominent contemporary constitutional theorist

Judicial activism may also emanate from an organic political

problem such as a weak, decentralized, or a chronically deadlocked
political system. The more dysfunctional the political system is

is certainly not alone in this boat. Indeed, the entire enterprise of

canonical constitutional theoryseems tobe caught up with thepos

in a given democracy, thegreater the likelihood of expansive judi

cial power in thatpolity.5 Persistent political deference to the judi
ciary may be seen as an effectiveway of overcoming systemic

itivistnotion of constitutional law as a sovereign venture,while

ignoring the realist notion of itas "politics by othermeans."
Even criticsof theview thatconstitutionalism is an all-out "good
thing"have not paid much attention to theactual political origins or
consequences of judicial empowerment.
Instead, they have been almost exclu
with

the well

sively preoccupied
rehearsed normative debate over the
"counter-majoritarian"nature of judicial
review, and the "democratic deficit"
inherent in transferringimportantpol
icy-making prerogatives ?rom elected
and accountable politicians, parliaments,
and othermajoritarian decision-making

political "ungovernability," and ensuring the unity and "normal"

functioningof such polities. A polity's structural inability to deal
with itsembedded social and culturalrifts,and the stalemate faced
by thatpolity's majoritarian politics cor

Like any other significant

decision-making

institution, courts

produce differentialdistributive
effects: theyprivilege some groups,
over

interests, and worldviews

others. Other variables being equal,

prominentpolitical actors are likely
tofavor theestablishment of

bodies to the judiciary. Indeed, one can

count on the fingers of one hand the

institutional

works thatdraw primarily upon empiri

cal and inductive inquiry to question the democratic credentials of
constitutionalism and judicial review, let alone
political origins of judicial empowerment.

structures

most

beneficial to them.

the concrete

rode the authorityof the legislative and

executive

branches

of

government,

thereby leading to a systemic depend

ency of thatpolity on dominant, seem
ingly apolitical, professional decision
making agencies such as constitutional
courts.

Political choices and interestsare also

crucial factors in explaining the origins
of judicial hyper-activism. Like any
other significant decision-making insti
tution, courts produce differential dis

tributiveeffects: theyprivilege some groups, interests,and world

views over others.Other variables being equal, prominent political
actors are likely to favor the establishment of institutionalstruc

From Robert Bork on theright to JeremyWaldron on the left,

constitutional theorists critical of judicial activism often blame
"power hungry" courts and judges for being too assertive and

turesmost beneficial to them.Moreover, because constitutional

courts hold no purse-strings and have no independent enforcement
power, but nonetheless limit the institutionalflexibility of political

excessively entangled with moral and political decision-making,

subsequently disregarding fundamental separation of powers and
democratic governance principles.3 Even more politically astute

power-holders, thevoluntary self-limitationthroughthe transferof

policy-making authorityfrommajoritarian decision-making arenas

critics of theUnited States Supreme Court's expropriation of the

American Constitution - Larry Kramer or Mark Tushnet, for
instance- aremore concerned with the Supreme Court's "imperi
alist" impulse thanwith the political conditions thatpromote the
transition to juristocracy.4 Inmy opinion, portraying courts and
judges as the source of evil ismisguided. For one, courts are first
and foremost political institutions. Like any other political
institutions,they do not operate in an institutionalor ideological
vacuum. Their establishment cannot be understood as developing
separately from the concrete social, political, and economic
struggles that shape a given political system. Indeed, constitution
alization, political deference to the judiciary, and the expansion of
judicial power more generally, are an integralpart and an impor
tantmanifestation of those struggles, and cannot be understood in
isolation from them. In that respect, the works of prominent
European political sociologists such as Bourdieu, Gramsci, or
Foucault, even some of Franz Kafka's masterpiece shortnovels,
8

to courts seems, prima facie, to run counter to the interests of

power-holders in legislatures and executives. Unless proven other
wise, themost plausible explanation for voluntary, self-imposed
deference to the judiciary is thereforethatpolitical power holders
who either initiateor refrainfrom blocking such developments esti
mate that it serves their intereststo abide by the limits imposed by
greater judicial interventionin the political sphere. In short, those
who are eager to pay the price of judicial empowerment must
assume that their position (absolute or relative) would improve

under a juristocracy.
From the politicians' point of view, delegating policy-making
authority to the courts may be an effective means of shifting
responsibility thereby reducing therisks to themselves and to the
institutionalapparatus within which theyoperate. The calculus of
the "blame defection" strategy is quite simple. If delegation of
powers can increase credit and/or reduce blame attributed to the
politician as a result of thepolicy decision of the delegated body,
then such delegation can benefit the politician.6 At the very least,

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^^J^^RULE

OF LAW AND CONSTITUTING

the transferto the courts of contested political "hot potatoes" such

as abortion or affirmative action in the United States, same-sex
marriage or theQuebec question in Canada offers a convenient
retreatfor politicians who have been unwilling or unable to settle
contentious public disputes in the political sphere. Likewise, it
may offer refuge for politicians seeking
to avoid difficultor "no win" decisions
and/or avoid the collapse of deadlocked
or fragile governing
coalitions.7
to the judiciary, in other
of political, not
is
derivative
words,
factors.
judicial,
An even more astute understanding
Deference

of the origins of judicial empowerment

suggests that the very emergence and
maintenance of powerful constitutional
courts is largely a function of politics

DEMOCRATIC

yet threatened sociopolitical groups fearfulof losing theirgrip on

political power.13 Judicial empowerment may provide an effec
tive solution for influentialgroups who, in lightof serious erosion
in their popular support,may seek to
entrench or "lock in" theirpolicy pref
erences against growing influence of
"peripheral" groups and interests.

revolutions

elites and their political

representatives are likely to initiateand

Hegemonic

carry out a delegation of power to the

judiciary (a) when they find strategic

in

formerly Westminster-style
polities such as Canada, South
Africa, and Israel

and interests.8For one, constitutions and judicial review mitigate

systemic collective action concerns such as credible commitment
effective enforcement problems. In a similar vein,
judicial reviewmay be seen as a mechanism for conveying infor

and

mation to legislatures about judicial policy preferences vis-?-vis

legislative policy preferences, as well as informationconcerning

^^^^J

I have argued elsewhere, judicial review inmany "new constitu

tionalism" countries resulted from actions taken by hegemonic

Understanding judicial
empowerment as a form of
hegemonicpresei-vation by
threatenedelites may shed lighton
thepolitical vectors behind the
constitutional

REGIMES

in adhering tomajoritarian
decision-making processes or when

drawbacks

their worldviews and policy prefer

ences are increasingly challenged in
such arenas; (b) when the judiciary in thatpolity enjoys a better
reputation than thepolitical regime for its rectitude,professional

ism, and impartiality; (c) when sociopolitical elites who delegate

power to the courts enjoy general control over legal education
and judicial appointment processes; and (d) when the courts in
thatpolity are inclined to rule in accordance with secularist ideo

abstract judicial "preview" such as that exercised by the French

Conseil Constitutionnel or by theCanadian Supreme Court in the

logical and cultural propensities. Under specific circumstances,

then, political power-holders may choose to enhance theirposi
tion by voluntarily tying their own hands. Such a strategic,
counter-intuitive self-limitationmay be beneficial from the point

reference procedure.10 Powerful national high courtsmay allow

governments to impose a centralizing, "one rule fits all" regime

of view of threatened sociopolitical elites and power-holders

when the limits imposed on rival elements within thebody politic

the actual effects of legislation.9 The information-conveying

functionof judicial review is likely to increase in cases of a priori,

upon enormous and diverse polities. (Think of the standardizing

effectof apex court jurisprudence in exceptionally diverse polities
such as theUnited States or theEuropean Union).
Judicial empowermentmay also reflect the competitiveness of a
polity's electoral market or governing politicians' time horizons.
According to the "party alternation"model, for example, when a

rulingparty expects towin elections repeatedly, the likelihood of an

independent and powerful judiciary is low.11However, when a
ruling party has a low expectation of remaining in power, it
is more likely to support a powerful judiciary to ensure that
thenext rulingparty cannot use itto achieve itspolicy goals. Recent
studies build upon this logic to argue that akin to purchasing

outweigh the limits imposed on themselves.

Understanding judicial empowerment as a form of hegemonic
preservation by threatened elites may shed light on the political
vectors behind the constitutional revolutions in formerly
Westminster-style polities such as Canada, South Africa, and
adoption of theCharter of Rights and Freedoms
in 1982 was part of a broader strategic response by the federal
ist, anglophone, business-oriented elites to the growing threatof

Israel. Canada's

Quebec
Canadian

separatism and the rapidly changing demographics of

society.

The

near-miraculous

conversion

to constitu

tionalism and judicial review among South Africa's white

political and business elites during the late 1980s and early
1990s occurred when itbecame clear that the days of apartheid
government became

insurance in uncertain contracting environments, judicial review

may provide "insurance" for self-interested,risk-averse politicians,
negotiating the terms of new constitutional arrangements under

were numbered and an ANC-controlled

may become an attractive option for influentialyet increasingly

threatened elites seeking to entrench their policy preferences,

years were all part of a strategic response by Israel's secular

bourgeoisie who had been rapidly losing its historical political

making them safe from the vicissitudes of democratic politics. As

dominance.

conditions of political deadlock or systemic uncertainty.12

Following the same logic, the transferof core political ques
tions to the courts, and judicial empowerment more generally,

inevitable. Israel's 1992 adoption of two new Basic Laws pro

tecting core rightsand liberties, the corresponding establishment
of constitutional review in 1995, and the Israeli Supreme Court's
continuous anti-religious jurisprudence over the past fifteen

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Likewise, the 1994 judicial empowerment through constitu

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
tional
inMexico was a
the then
reform

calculated attempt by
Revolucionario
ruling party (Partido
Institucional) to lock in its
historic influence within the judicial branch before the PRI's

increasingly popular political opponents (and eventual winners

of the 2000 presidential election) gained control. The same logic
may also explain the scope and timing of the June 1991 consti
tutionalization of rights in British-ruled Hong Kong, which
occurred less than two years after theBritish Parliament ratified
on theQuestion of Hong Kong, whereby
restored to China in

the JointDeclaration
the province was

July 1997; or Britain's enthusiastic

support for the entrenchment of prop

states (e.g. Ghana

in 1959, and Kenya

counter-establishment jurisprudence

courts

in 1957,
in 1960),

Nigeria
while itwas unwilling to incorporate
the provisions
of the European
Convention on Human Rights into its

When contemplating highly charged political questions, con

stitutional courts - as a result of a combination of theirmembers'
ideological preferences, and their own astute strategic behavior
tend to adhere closely to prevalent worldviews, national meta
narratives, and the interests of influential elites when dealing

own

legal system (let alone enact a

constitutional bill of rights of its own
until 1998). In addition, strong consti

- as a
result of a combination

of theirmembers9 ideological prefer

ences,

and

their own astute

worldviews,

narratives,

and

meta

are substantially at odds with the rest

of the political elite."16

national

the interests of

mega-questions.

tutional courts were established in predominantly Islamic poli

ties such as Egypt, Pakistan, and Turkey as part of a broad strat
egy by secularist, relatively cosmopolitan elites in these coun
tries to tame the increased popularity of anti-secularist political
forces.14

Granted, pro-judicialization forces do not operate in a polit

ical vacuum. To effectively promote their deferential interests
secure the co-operation of other pertinent actors
(e.g. powerful economic stakeholders, courts and judicial
leaders) who share compatible interests. However, a political

they must

tic to suppose thata Court whose mem

bers are recruited in the fashion of the
Supreme Court justices would
long
hold to norms of rights of justice that

influentialelites when dealing with

political

with political mega-questions. Indeed,

as Robert Dahl observed with regard to
theU.S. Supreme Court, "it isunrealis

strategic

behavior - tend to adhere closely to

prevalent

is unrealistic, to say the

least.

When contemplating highly charged

political questions, constitutional

erty rights in the "independence consti

tutions" of newly
self-governing
African

into autonomous decision-making bodies whose

judgments may run counter to the interests and expectations of
their political advocates.15 However, the threat of consistent

metamorphose

the courts

Occasionally, courtsmay respond to

counter-establishment challenges by
releasing rulings that threaten to alter
the political power relations in which

are embedded.

However,

these

rare occasions

of unin

vited judicial intervention in thepolitical sphere are not likely to

transforma given polity's formativemeta-narratives or to alter its
historically rooted patterns of power inequalities. Nor are such
occasional judicial deviations likely to survive the long-term
resistance of a recalcitrant and often more powerful political
sphere. Indeed, very few groundbreaking manifestations of judi
cial activism in the new constitutionalism world have survived
popular political backlashes and reactive pressures by influential
political actors whose institutional room for political maneuver

sphere conducive to judicial activism remains a (if not the)

key determinant of judicial activism. Other variables being
equal, courts in relatively open, rule-of-law polities would
almost always prefer to strengthen their own position by

ing had been curtailed by judicial review. Legislatures inmost

new constitutionalism countries have been able to respond effec

extending the ambit of their jurisprudence and fortifying their

status as crucial national policy-making bodies. This near per
manent quest for more rather than less power - an impulse
shared by numerous other political entities - suggests that an

utives and legislatures have frequently revised, hampered, or cir

cumvented constitutional court rulings.17As the recent history of

a-political,

"court

centric"

approach

alone

cannot

account

for

variation in the scope and nature of judicial activism across

countries

or across

time.

From political power-holders' point of view, the transferof

core political questions to the courts poses a major dilemma:
how to ensure that the courtswill indeed produce judgments that
reflect the ideological preferences of those who have handed
policy-making authority over to the judiciary. At least in theory,
once granted authority, there is the risk that courts might
10

tively to such unfavorable judgments or simply to hinder their

implementation.As several studies have shown,American exec

comparative constitutional politics tells us, recurrentmanifesta

tions of unsolicited judicial intervention in thepolitical sphere in
general, and unwelcome judgments concerning contentious polit
ical issues in particular, have brought about popular political
backlashes, and more importantly,have triggered sheer bureau
cratic disregard, protracted or reluctant implementation, or leg
islative override of controversial rulings by political power-hold
ers. In some instances they have resulted in "court-packing"
attempts, impeachment of overactive judges, curtailment of judi
cial review powers, and even constitutional crises leading to the
outrightdissolution of high courts.18

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RULE OFLAWANDCONSTlTUT^^Dr^^)^R^^^^?^?^T^^^^^^|

^^J^

In sum, the existence of an active, non-deferential constitu

tional court is a necessary, but not a sufficient condition, for
persistent judicial activism and the judicialization of mega
politics. Assertion of judicial supremacy cannot take place, let
alone be sustained,without the tacit or explicit support of influen
tial political stakeholders. It is unrealistic, and indeed utterly
naive, to assume that core political questions such as the struggle
over the nature of Canada as a confederation of two founding
peoples, Israel's wrestling with the question of "who is a Jew?"
and its status as a Jewish and democratic state, the struggle over
the status of Islamic law in predominantlyMuslim

countries, or
the transition to democracy in SouthAfrica could have been trans
ferred to courtswithout at least the tacit support of pertinentpolit
ical stakeholders in these countries.And we have not yet said a
word about the contribution of ineffectivepolitical institutions,the
spread of litigation oriented NGOs, or opposition and interest
group use of the courts to the judicialization ofmega-politics. A
political sphere conducive to judicial activism is at least as signifi
cant to its emergence and sustainability as the contribution of
courts and judges. In short,judicial power does not fall from the
sky. It is politically constructed. The portrayal of constitutional
courts and judges as themajor culprits in the all-encompassing
judicialization of politics worldwide

is simply too simple a tale.

Ran Hirsch is an Associate Professor of Political

Law at theUniversity of Toronto.

Science and

Endnotes
* I am
grateful toAyelet Shachar forher thoughtfulcomments on

an earlier

version

of this essay.

1. See Ran Hirschl, "Repositioning the Judicializationof Politics:

Bush v. Gore as a Global Trend" Canadian Journal of Law and
Jurisprudence 15 (2002): 191-218; JudithGoldstein et al., eds.,
Legalization and WorldPolitics (MIT Press, 2001); Alec Stone Sweet,
Governing with Judges: Constitutional Politics inEurope (Oxford
University Press, 2000); C. N. Tate & T. Vallinder, eds. The Global
Expansion ofJudicial Power (New York University Press, 1995).
2. Mark A. Graber, "Constitutional Politics and Constitutional
Theory: A Misunderstood and Neglected Relationship," Law &
Social Inquiry 27 (2002): 309-338, 315.
3.

See,

Sovereignty,"

e.g.,

"Judicial

Jeremy Waldron,

inMark

Graber,

ed, Marbury

Power

and

v.Madison:

Popular

Documents

and Commentary (CQ Press, 2002): 181-202; The Dignity of

Legislation (Oxford University Press, 1999); or "Judicial Review
and theConditions forDemocracy," Journal ofPolitical Philosophy
6 (1998): 335-355; Robert H. Bork, The Tempting ofAmerica: The
Political Seduction of the Law (Free Press, 1990); and Coercing
Virtue: The Worldwide Rule ofJudges (Vintage Canada, 2002).
4.

See,

e.g.,

Larry

Kramer,

The

People

Themselves:

Popular

Constitutionalism and Judicial Review (Oxford University Press,

2004); Mark Tushnet, Taking theConstitutionAwayfrom theCourts

an elaboration

5. For

of this approach

The Power

see, Carlo

et al.,

Guarnieri

of Judges: A Comparative Study of Court and

Democracy (OxfordUniversity Press, 2002), 160-181.
6. Stefan Voigt & Eli Salzberger, "Choosing Not to Choose:
When Politicians Choose toDelegate Powers," Kyklos 55 (2002):
289-310, 294.
7. See Mark A. Graber, "The Nonmajoritarian Difficulty:
Legislative Deference to the Judiciary," Studies in American
Political Development 1 (1993): 35-73.
8. See Ran Hirschl, Towards Juristoeracy: The Origins and
Consequences of theNew Constitutionalism (Harvard University
Press, 2004); Tom Ginsburg, Judicial Review inNew Democracies:
Constitutional Courts inAsian Cases (Cambridge University Press,
2003); Howard Gillman, "How Political Parties Can Use theCourts
toAdvance Their Agendas: Federal Courts in theUnited States,
1875-1891," American Political Science Review 96 (2002):
511-524.

9. JamesRogers, "Informationand JudicialReview: A Signaling

Game of Legislative-Judicial Interaction," American Journal of
Political Science 45 (2001): 84-99.
10. Judicial review inCanada is not limited to reviewwithin the
context

of concrete

adversary

The

litigation.

reference

procedure

allows both the federal and provincial governments in Canada to

referproposed statutes or even questions concerning hypothetical
legal situations to the Supreme Court or the provincial courts of
appeal for an advisory (abstract) opinion on theirconstitutionality.

11. See J.Mark Ramseyer, "The Puzzling (In)Dependence of

Courts: A Comparative Approach," Journal of Legal Studies 23
(1994): 721-748.
12. See Tom Ginsburg, Judicial Review inNew Democracies;
PedroMagalhaes, The Limits toJudicialization: Legislative Politics
and Constitutional Review in theIberian Democracies (unpublished
Ph.D. dissertation,Ohio StateUniversity, 2002).
13. Ran

Juristoer

Towards

Hirschl,

acy.

14. Ran Hirschl, "Constitutional Courts vs. Religious

Fundamentalism: Three Middle Eastern Tales" Texas Law Review
82 (2004): 1819-1860.
15. From political power-holders' standpoint,thepossibility of a
so-called "delegatee drift" is not unique to national high courts; it is
equally applicable to other semi-autonomous professional policy
making

bodies

such

16. Robert Dahl,

Supreme

Court

See,

central

banks,

national

"Decision-Making

as a National

6 (1957): 279-295.
17.

as

and

supra-national

etc.

bureaucracies,

e.g. Gerald

Policy-Maker,"

in a Democracy:
Journal

The Hollow

Rosenberg,

Hope:

Can

The
Law

of Public

Courts

Bring About Social Change? (University of Chicago Press, 1991);

Gerald Rosenberg, "Judicial Independence and the Reality of
Political Power," Review of Politics 54 (1992): 369-398. For a
general survey of the various formal and informalpolitical checks
on the judiciary in theUnited States see Terri JenningsPeretti, In
Defense of a Political Court (PrincetonUniversity Press, 1999). 18.
A clear illustrationis the fate of post-Soviet courts inHungary and
Russia.

See

Kim

L.

"When

Scheppele,

the Law

University of Pennsylvania Law Review

Ran

Hirschl,

Towards

Juristoer

acy,

pp.

Doesn't

149 (2001):

Count,"

1361-1437;

202-208.

(PrincetonUniversity Press, 1999).

Volume 13,Number 3, 2004

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