Judicializing Politics, Politicizing Law

Abstract

I INTRODUCTION Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. This shift, which has been called "judicialization," (1) has become more or less global in its reach, as evidenced by the fact that it is as marked in Europe, and especially recently in Eastern Europe, as it is in the United States. The spectacles of Italian judges undermining Italy's postwar system of musical cabinets, or of newly energized French judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders. Additionally, our own United States Supreme Court's intervention into electoral politics in Bush v. Gore (2) was yet another manifestation of this trend. One can distinguish at least three ways in which courts have taken on new and important roles relative to legislatures. First, courts have been increasingly able and willing to limit and regulate the exercise of parliamentary authority by imposing substantive limits on the power of legislative institutions. Second, courts have increasingly become places where substantive policy is made. Third, judges have been increasingly willing to regulate the conduct of political activity itself--whether practiced in or around legislatures, agencies, or the electorate--by constructing and enforcing standards of acceptable behavior for interest groups, political parties, and both elected and appointed officials. But judicialization is not simply limited to the increasingly important, pervasive, and direct roles that courts play in making policy. The fact that courts frequently intervene in policy-making processes also means that other political actors, as well as groups seeking political action, have reason to take the possibility of judicial reaction into account. Proposals need to be framed in a way to ensure that legislation will neither be struck down nor interpreted in Undersirable ways. In order to achieve such a result, part of the policy debate over new legislation must aim at anticipating the response of legal institutions. So, we see a global application of one aspect of the phenomenon that de Tocqueville noted about American politics years ago: the transformation of political questions into legal ones. (3) This means that legal/constitutional considerations and rhetoric assume new and sometimes decisive importance in ordinary legislative policy-making. One aspect of judicialization can be observed in the widespread adoption of institutions and practices of constitutional adjudication, even in places with legal institutions and traditions that had long been inhospitable to this process. True, the modes of constitutional adjudication adopted in Europe and elsewhere do not precisely follow the U.S. model. Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been--even in its most activist periods. (4) Moreover, the existence of constitutional courts has, in effect, pressed ordinary judges to take account of constitutional issues in their everyday judicial activities. For example, European judges regularly interpret legislative statutes and administrative ordinances in view of the constitution and decide which issues need to be referred to the constitutional court. (5) Moreover, the rise of constitutional adjudication has transformed the landscape of parliamentary politics by forcing legislators to take constitutional considerations into account when crafting legislative schemes. …