New democracies around the world have adopted constitutional courts to oversee the operation of democratic politics. Where does judicial power come from, how does it develop in the early stages of democratic liberalization, and what political conditions support its expansion? This book answers these questions through an examination of three constitutional courts in Asia: Taiwan, Korea, and Mongolia. In a region that has traditionally viewed law as a tool of authoritarian rulers, constitutional courts in these three societies are becoming a real constraint on government. In contrast with conventional culturalist accounts, this book argues that the design and functioning of constitutional review are largely a function of politics and interests. Judicial review - the power of judges to rule an act of a legislature or national leader unconstitutional - is a solution to the problem of uncertainty in constitutional design. By providing 'insurance' to prospective electoral losers, judicial review can facilitate democracy.

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Judicial Review in New Democracies: Constitutional Courts in Asian Cases

This case study of late-nineteenth century federal courts in the United States sheds light on two seemingly unrelated questions of general interest to political scientists: What tools are available to party leaders who seek to institutionalize their policy agendas or insulate those agendas from electoral politics? and How do we account for expansions of judicial power? Using an historical–interpretive analysis of partisan agendas, party control of national institutions, congressional initiatives relating to federal courts, the appointment of federal judges, judicial decision making, and litigation patterns, I demonstrate that the increased power, jurisdiction, and conservatism of federal courts during this period was a by-product of Republican Party efforts to promote and entrench a policy of economic nationalism during a time when that agenda was vulnerable to electoral politics. In addition to offering an innovative interpretation of these developments, I discuss the implications arising from this case study for our standard accounts of partisan politics, political development, and the determinants of judicial decision making.

How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891

A significant majority of the world’s constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. Ia rgue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court’s merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.

Constitutional Review and the Selective Promotion of Case Results

This book documents the corrosive effect of social exclusion on democracy and the rule of law It shows how marginalization prevents citizens from effectively engaging even the best legal systems, how politics creeps into prosecutorial and judicial decision making, and how institutional change is often nullified by enduring contextual factors It also shows how some institutional arrangements can overcome these impediments The argument is based on extensive field work and original data on the investigation and prosecution of more than 500 police homicides in five legal systems in Argentina, Brazil, and Uruguay It includes both qualitative analyses of individual violations and prosecutions and quantitative analyses of broad patterns within and across jurisdictions The book offers a structured comparison of police, prosecutorial, and judicial institutions in each location, and shows that analyses of any one of these organizations in isolation misses many of the essential dynamics that underlie an effective system of justice

https://assets.cambridge.org/97805218/72348/frontmatter/9780521872348_frontmatter.pdf

The Judicial Response to Police Killings in Latin America: Inequality and the Rule of Law

Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.

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Public Opinion and Senate Confirmation of Supreme Court Nominees

Despite the fact that the countermajoritarian difficulty has been the preeminent preoccupation of constitutional theory for several decades, precious little work has been done to understand why this problem became so pressing for scholars in the latter half of the twentieth century. This paper is the first in a series of three to answer two sets of questions: when and why are courts criticized as countermajoritarian? When and why did the countermajoritarian difficulty become the problem for scholars that it did? This first paper offers a theory to explain why countermajoritarian criticism of the courts will emerge. It identifies four pertinent factors: the extent to which courts are interfering with popular will, the extent to which the public favors a relatively direct or popular form of democracy, the extent to which the public perceives the Constitution as having a fixed meaning, and -- most important to this first paper -- the extent of judicial supremacy. The paper argues that generally speaking there cannot be a countermajoritarian problem without judicial supremacy. The remainder of the paper examines criticism of the courts and the rise of judicial supremacy throughout the nation's first century, focusing on the Jeffersonian attack on the courts, the Era of Good Feeling and Jacksonian Democracy, and the aftermath of the Dred Scott decision. The second paper in the series will detail attempts to curtail judicial power (such as court-packing and jurisdiction-stripping) in the face of growing judicial supremacy. Part Three will be devoted entirely to the academic obsession with the countermajoritarian difficulty, explaining, in somewhat novel terms, why it became the problem it did when it did.

https://papers.ssrn.com/sol3/Delivery.cfm/98022604.pdf?abstractid=60449&mirid=1&type=2

The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy

How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of the history of the countermajoritarian difficulty. The piece explains in successive sections that the countermajoritarian problem so prominent in legal scholarship is neither the same as the occasional criticism leveled at courts engaged in controversial exercises of judicial review, nor necessarily related to the task of political theory of explaining the legitimacy of any branch of government in a democracy. Rather, the academic obsession with the countermajoritarian difficulty was born out of historically contingent circumstances present at the middle of the twentieth century, circumstances that haunt us still - though they need not. The criticism that courts are acting contrary to the will of the majority has been heard throughout history, but it was most prominent during the Progressive Era. It made sense then, as courts were striking down legislative enactments of recent vintage with a strong democratic pedigree. At mid-century, however, popular criticism of the Supreme Court sometimes included this countermajoritarian claim, and sometimes did not, depending precisely on what the Court was doing. Nonetheless, academics became fixated on the problem, even when the public was far less concerned and the criticism inapt. Why did this happen?It is important to recall that the countermajoritarian problem emerged in the course of justifying judicial review, not criticizing it. After the Realists had exploded the myth that constitutional standards were determinate, academics at mid-century struggled to define a role for courts that justified aggressive judicial review in defense of individual liberty and equality. Their concern about this judicial role was expressed in countermajoritarian terms, not because those terms were apt, but because they echoed the Progressive Era battle cries of their most honored teachers - Thayer, Holmes, Hand and Frankfurter. The problem these academics struggled with was unique to political liberals, who - at that time - supported both halves of the countermajoritarian equation: they approved of the work of the Warren Court, but believed in popular democracy as well. Unlike their predecessors, these academics had come to need the Court, but struggled with their inheritance of skepticism about judicial review.Today, liberal academics are more concerned with criticizing the Court than with justifying its work. Yet, echoing Progressive Era critics, these scholars are attacking the Court by raising concerns about its democratic pedigree. These two projects sound similar, but they are very different. Constitutional "theory" flip-flops between attacking the Court and justifying it, depending primarily on who is sitting on the Supreme Court bench and the agenda they are pursuing. It should not be thus; we need a constitutional theory that is less historically contingent and more enduring. The historical perspective offered here can help us see this.

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The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

This project continues the history of the countermajoritarian difficulty, explaining that the long dominant "conventional" story about judicial review was born out of fights that took place at the turn of the century. For most of this century the lesson of the Lochner era has been clear: judges should refrain from imposing their own values on the meaning of the Constitution. From that era come all the conventional lessons about judicial restraint and the countermajoritarian difficulty. Now, convention is challenged by a large (and growing) body of revisionist scholarship. Lochner revisionists argue that the Lochner era decisions can be justified as consistent with doctrinal strains existing at the time. Some revisionists go so far as to argue that the conventional story is "winner's history" concocted by Progressive scholars after the battle over judicial review was won. This article challenges the revisionist project. Experience during the first third of the twentieth century shows that judges will be attacked and judicial review threatened so long as the public views judicial decisions as failing to meet social needs, regardless of whether there is doctrinal support for the challenged decisions. Thus, the conventional story is not "winner's history" but an accurate accounting of what happened at the time. And, for this reason even if the revisionists are correct that there was doctrinal support for Lochner era decisions, this only makes matters worse, for judges were attacked vociferously nonetheless. If there is a lesson to be learned from the Lochner era, it is from the attacks that were in fact leveled at judges at the time, rather than any doctrinal strains that might have supported those decisions. The legitimacy of judicial review inevitably rests in part on public reaction to judicial decisions.

The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

This paper takes a somewhat novel approach to problems regarding the separation of law and politics raised by Roosevelt's Court-packing plan. Most scholarship about the New Deal focuses on the Court's response to the threat of political retribution that the plan represented. This article argues that if one is concerned about questions regarding the separation of law and politics raised by the Court's doctrinal change following the defeat of the Court-packing plan, it is more profitable to examine public reaction to the Court, rather than the more common scholarly approach of examining the Court's reaction to political pressure. Thus, this paper is a study of popular understandings about democracy, judicial supremacy, constitutional interpretation and the role of judicial review in the 1930's. The thesis of the article is that these deeper strains in public thought at the time of the New Deal can explain why the Court-packing plan was a logical proposal, as well as why it was defeated. Public understandings about the proper role of judicial review also mirror the doctrinal direction taken by the Court beginning in 1937, suggesting at the least that there is some "empirical legitimacy" to the Court's change in direction.

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The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics

/pdf/the-birth-of-an-academic-obsession-the-history-of-the-2dyxl82851.pdf

Barry Friedman

Papers

The History of the Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

The History of the Countermajoritarian Difficulty, Part Four: Law?s Politics

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five