Law & Policy最新文献

How can courts resist political attacks? Despite the rich empirical studies of attacks on courts, we lack better understanding of how judges react to these challenges. Little or no attention has been paid to the theoretical aspects of judicial resistance; the structural, personal or socio-economical motives of judges, or the dynamics between the resistance, democratic resilience and the rule of law. This article draws a novel concept map and suggests that the future scholarship should focus on three dimensions of judicial resistance. The first captures the variety of techniques available to judges who wish to avert, punish or invalidate an attack, whether they act individually or collectively and on-bench or off-bench. The second dimension zooms in on the motives for resistance, including the ability of judges to recognize an attack and see it as critical. It outlines factors that potentially form the cost-benefit analysis behind judges' decisions to resist. Finally, the third dimension prompts to look into the effects of resistance (the dark and the light side), it analyses the conformity of judicial resistance with or against the principle of the rule of law and suggest its repercussions on how the public trusts and understands the courts (long-term perspective).

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.

This study examines the consequences of a policy shock to the criminal legal system through the prisms of the lived experiences of incarcerated persons. The study draws on a qualitative analysis of 159 unsolicited letters from incarcerated individuals in the Pennsylvania Department of Corrections written during the 2008–2009 Moratorium on prison releases. The results indicate that the moratorium eroded their trust and exacerbated an already existing crisis in procedural justice and legitimacy for discretionary parole, underscoring both direct and collateral consequences of this policy shock on the lived experiences of those most directly affected. Several policy implications emerge that can help improve or restore procedural justice and legitimacy of discretionary parole and corrections, more generally.

In recent years, the Court has swung sharply to the right but has thus far declined to support the most antidemocratic and radically authoritarian agendas of the Trumpist wing of the Republican Party. While scholars and concerned Americans have focused on the visible things the Court is dismantling and fretted about its potential for enhancing constitutional rot, this article sketches out what the Court is building. It illustrates that this constructive process is distinctive not just in its political and partisan orientation but also in the Court's capacity to achieve it. Considering the emerging product of its recent jurisprudence suggests an embrace of a narrowed form of democracy that empowers a subset of political actors to build their idealized visions of the state, primarily at the subnational level.

This paper assesses the performance of the Supreme Court as democratic guardrail during five prior periods of democratic crisis in the United States. It finds that most such periods witnessed efforts by the governing regime to entrench themselves in power, and that the Court has rarely provided an effective check on such democratic abuses. Rather than serving as a reliable democratic guardrail, the Court has regularly exercised what Dixon and Landau call “weak-form abusive judicial review”; that is, it has declined to check attacks on democracy emerging from other centers of power. On one occasion, the Court has undermined democracy even more directly via “strong-form abusive judicial review”; that is, the Court itself attacked key democratic guardrails. This historical record provides a helpful baseline for evaluating the Court's performance during the Trump era, when it has taken actions that both protect and undermine democratic health. Conflicting signs indicate that the Court is playing a more democracy-protective role than most of its predecessors in some respects, but a more democracy-undermining role in others. As such, it is too soon to say with confidence whether the contemporary Court will be remembered, on balance, for resolving or exacerbating a system-threatening constitutional crisis.