Law & Policy最新文献

The United States is facing an era of acute democratic fragility. The Supreme Court is often understood as a key countermajoritarian institution that often impedes democratization. But adopting an interbranch perspective, we show that the court has been a stronger champion of democratization in the United States than is typically recognized. National power has generally been necessary to overcome antidemocratic subnational policy, and national state power requires both standard setting and coercion. Using an original dataset of Supreme Court rulings on civil rights and racial equality, we show that the court was an earlier and more consistent champion of racial democratization than is generally understood but that in the absence of cooperation from the rest of the federal government's coercive apparatus, the court's standard-setting rulings had little impact. These findings suggest the conditions under which the protection of democratic gains might be possible.

The recent wave of autocratization in Latin America has put courts at the center of debates about regime and regime change. Much of the literature on the judicial politics of democratic backsliding focuses on incumbents' efforts to capture judiciaries and weaponize them against the regime. Our approach is different. We provide illustrations of independent courts in Argentina, Colombia and Mexico that successfully fought back when presidents pushed for reforms that jeopardized democratic stability. With the goal of furthering our knowledge of how judges can also complicate autocratization, the paper thus focuses on a type of horizontal accountability intervention that we refer to as “constitutional balancing.” We also shed light on the reasons why constitutional balancing is well-equipped to slow down or stop backsliding via a comparison with another type of horizontal accountability intervention: public administration policing. These interventions are increasingly common in Latin America, usually in the form of high-profile corruption prosecutions. Unlike constitutional balancing, however, public administration policing has proven highly disruptive, and ultimately unable to settle regime-threatening political conflict.

This article argues that courts in the United States are comparatively less likely to be captured than those of many other countries and more able to resist an authoritarian populist regime, but also somewhat more likely to facilitate democratic backsliding on their own account. In this way, they potentially could—and arguably already do—provide a relatively rare case of “abusive judicial review” by independent courts. The article also briefly considers whether the US experience provides any insights for the relationship of courts and democratic backsliding in other countries, and especially how the ability of courts to resist capture might be bolstered.

While a slew of recent scholarship has examined the phenomenon of executive overstay, there is little talk about the more complex and equally vexing phenomena of judicial overstay. This article begins to examine the many layers and complexities of judicial overstay by exploring whether the political branches ever seek to prolong abusively the time in office of loyal judges, and if so, by what mechanisms. Illustrating this is not merely a theoretical practice, we label such a phenomenon court-hoarding, and consider it a subset of the broader category of judicial overstay. Our contribution is two-fold. First, we argue that while court-hoarding is a somewhat risky and less-known governance tactic that is likely to occur only when certain conditions are fulfilled, the potential benefits of court-hoarding for power consolidation and institutional monopoly power are profound. Second, we contribute to the emerging literature on judicial tenure. More specifically, we add conceptual utility to thinking about judicial tenure—and its abuse—by describing a three-layer model of court-hoarding, consisting of a core, a mid-layer, and a periphery, which correspond to three broad categories of influencing judicial tenure across time and space.

The US Supreme Court has been rightfully criticized for its role in contributing to the anti-democratic processes in the United States. However, the focus on the apex court overlooks the potential for the judiciary as a whole to support democratic institutions. In the aftermath of the 2020 US presidential election, a series of lawsuits contesting the results were filed in federal courts, overseen by judges appointed by presidents from both major parties. Despite the prevailing perception of courts as politically influenced, every one of these cases ruled against the former President Trump's claims. This research delves into the influence of judicial norms and legal profession culture, intertwined with specific procedural doctrines such as Article III standing and justiciability. The study contends that these procedural rules, deeply ingrained within the culture of the legal profession in the United States, served as a crucial mechanism upholding judicial independence. The analysis draws from the texts of the 2020 election-related court decisions and interviews with 17 legal experts, primarily consisting of federal and state Supreme Court judges.

Authoritarian populism has been making a comeback in Asia, as illustrated in Southeast Asia's most important presidential regimes: the Philippines and Indonesia. In the Philippines, President Duterte (2016–2022) has shown unprecedented illiberal transgressions. Meanwhile in Indonesia, Joko Widodo's increasingly assertive presidency (2014–) has renewed concerns about “democratic backsliding” in what to date has been one of the region's most vibrant democracies. In both instances, courts have been largely muted in responding to these developments, raising concerns about their ability to counter democratic backsliding. A distinct political agenda targeting the courts through partisan control over parliament to pursue illiberal goals; undue presidential influence over judicial appointments reinforced by informal loyalty dynamics; and traditionally weak public support for the courts versus high executive popularity are critical drivers behind this trend. Nevertheless, the inherent fragility of competitive-clientelist regimes common to the region also offers courts the opportunity to recover and resist such efforts, especially in electoral democracies.