The Backlash Against the Judicialisation: Can Courts Withstand Political Inferences?

Abstract

There are no doubts that courts are central to political life. The past two decades increased the attention devoted to courts, decision-making, and judicial politics both in practice and among academic circles (Dressel 2012, Ginsburg and Moustafa 2008). Scholars from a variety of disciplines have pointed at judicialisation and the increasingly powerful role of courts for allocating values and resources in societies (Tate and Vallinder 1995, Stone Sweet 2000). Moreover, there is a substantive body of literature which posited that courts were to be seen as guardians of the rule of law and democratization. The existence of an independent and active judiciary has generally been perceived as a necessary component of democratic proliferation (Hirschl 2004). Domestic courts were expected to be one of the most powerful actors of transitioning processes after the end of the Cold war, playing the role of “agent of changes and downstream consolidators of democracy” (Ginsburg 2012). Nevertheless, the most recent events suggest that courts did not fulfill these expectations (Dressel, Urribarri and Stroh 2017), they failed to secure designed institutional reforms, and are increasingly often becoming dangerous tools in the hands of political elites (Popova 2012). Moreover, a contrary trend to judicialisation appeared lately, with political actors targeting the independence, authority, legitimacy, and public image of courts both at the international (Voeten 2017) and domestic level (Bugaric and Ginsburg 2016). The panel seeks to address these important and timely topics both from the perspective of political backlash and retaliation against courts by political actors, as well as reactions of domestic and international judiciaries against such political inferences. It discusses various techniques political actors use to influence courts, such as court-packing, dismissals of judges, using disciplinary proceedings to diminish judges’ independence, appointments, and dismissals of court presidents as transmission belts for politicians. At the same time, the participants on the panel look at how judges respond to these inferences, how they can preserve their independence, public trust, and legitimacy, or how to push through execution of their decisions irrespective of political pressure. References: • Bugaric, B. and T. Ginsburg (2016). "The assault on Postcommunist Courts." Journal of Democracy 27(3): 69-82. • Dressel, B. (2012). The Judicializatio nof Politics in Asia. Routledge. • Dressel, B., Uribarri, R.-S., Stoh, A. (2017). The Informal Dimension of Judicial Politics: A Relational Perspective. Annual Review of Law and Social Science 13. • Ginsburg, T. (2012). Courts and New Democracies: Recent Works. Law & Social Inquiry 37(3). • Ginsburg, T. and T. Moustafa (2008 eds.). Rule by Law: The Politics of Courts in Authoritarian Regimes. CUP. • Hirschl, R. (2004). Towards juristocracy : the origins and consequences of the new constitutionalism. Harvard University Press. • Popova, M. (2012) Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine. CUP. • Tate, C. N. and T. Vallinder, Eds. (1995). The Global Expansion of Judicial Power. New York, London: New York University Press. • Voeten, E. (2017). “Liberalism, Populism, and the Backlash against International Courts.” Paper presented at the American Political Science Association Annual Meeting. San Francisco.