Comparative Sources of Judicial Empowerment: Ideas and Interests

Since the end of World War II, courts across the globe have been increasingly involved in debates and decisions of national and international political import (Tate and Vallinder 1995; Russell and O'Brien 2001; Hirschl 2004, 2008). Judges have weighed in on a vast range of issues, including the treatment of racial, ethnic, and sexual minorities; the boundaries of religious and reproductive freedom; past human rights abuses; the meaning of social rights; the punishment of official corruption; and executive accountability in matters of public security, to name just a few (see, for example, Smulovitz 1995; Klug 2000; Della Porta 2001; Guarnieri and Pederzoli 2002; James, Abelson, and Lusztig 2002; Sathe 2003; Scheppele 2003, 2005; Sieder, Schjolden, and Angeli 2005; Gargarella, Domingo, and Roux 2006). Courts have always engaged in some amount of policy making, in the United States and elsewhere (Shapiro 1964; Tocqueville 1969; Bickel 1986; Becker 1970; Unger 1976; Feeley and Rubin 1998; Guarnieri and Pederzoli 2002). Some have suggested that increasing post-World War II concerns for civil and human rights coupled with an explosion of legislation expanding the role of the state in general has vastly expanded the issue areas into which courts have been expected to intervene (Guarnieri and Pederzoli 2002). Whatever its causes, there is broad agreement among political scientists that the judicial role has expanded significantly at both the national and international levels during the past half century (Epp 1998; Stone Sweet 2000; Cichowski 2000; Russell and O'Brien 2001; Widner 2001; Guarnieri and Pederzoli 2002; Ginsburg 2003; Hirschl 2004, 2008; Scheppele 2005; Sieder, Schjolden, and Angeli 2005; Malleson and Russell 2006; Moustafa 2007). This increase in judicial involvement in policy making has led to a virtual explosion in work on comparative and supranational judicial politics.1 Scholars who focus on polities outside the United States have begun to make an important mark on theoretical and methodological development in work on law and courts. Building on the pioneering work of scholars such as Schubert and Danelski (1969), Murphy and Tanenhaus (1972), Shapiro (1981), and Galanter (1984), a new generation of political scientists has devoted themselves to "examining] and comparing] the influence of courts on politics and the influence of politics on courts across democracies" (Whittington, Kelemen, and Caldeira 2008, 11-12) and even in nondemocratic regimes (see, e.g., Ginsburg and Moustafa 2008). Some have focused on the upholding or weaknesses in judicial independence and the rule of law (Russell and O'Brien 2001; Widner 2001; Finkel 2003; Chavez 2004; Maravall and Przeworski 2003; Helmke and Rosenbluth 2009), or of legal tools, such as bills of rights and judicial review, that grant courts broad formal powers (Klug 2000; Ginsburg 2003, 2008; Hirschl 2004; Epp 1996). Other scholars have turned their analytic lenses to the roots of judicial intervention, seeking to explain when and why judges (do or do not) act to defend rights, to hold powerful actors accountable, or to otherwise enter the political thicket (Osiel 1995; Epp 1998; Ginsburg 2003; Helmke 2005; Woods 2005, 2008; Staton forthcoming; Vanberg 2005; Hilbink 2007, 2009; Kapiszewski 2007). More recently, a few scholars have begun to analyze political compliance with judicial decisions (Staton 2004; Vanberg 2005; Kapiszewski 2007). Many hope that their work will help to unpack both the causes or the consequences of what has been called the "judicialization of politics" (Tate and Vallinder 1995), that is, the reasons behind and implications of more frequent judicial, rather than legislative or social, resolution of political conflict (Stone Sweet 2000; Guarnieri and Pederzoli 2002; Hirschl 2004; Dotan and Hofnung 2005; Sieder, Schjolden, and Angeli 2005; Wilson and Rodriguez Cordero 2006; Gauri and Brinks 2008). Some of the most influential works in comparative judicial politics are those that have focused their analysis, at least in part, on the conditions under which judges gain formal independence and expanded legal powers - especially judicial review (Ginsburg 2003; Hirschl 2004; Chavez 2004). …