A Dynamic Theory of Judicial Role

INTRODUCTIONRecent scholarship has focused on the role of constitutional courts in new or threatened democracies.1 This literature has pointed out that these courts are often faced with particular challenges that are different from the ones found in more mature democracies. Courts may act in "fragile democracies" that are at risk of sliding back into authoritarianism. They often act in the midst of poorly- functioning political systems, and they generally face the challenge of enforcing rights-like socioeconomic rights-that are costly to enforce. At the same time, any assumption that courts acting in poorly-functioning political environments are always weak courts has been definitively proven false. Courts in places like India, Colombia, and South Africa have shown a surprising level of activism and independence.This work problematizes the relationship between judicial review and democracy in different kinds of political contexts. Most clearly, it suggests the following question: what is the relevance of standard constitutional theory, which was developed largely in the United States, to contexts where democratic regimes are particularly vulnerable to overthrow or where democratic institutions are poorly-functioning?Standard democratic theory, as developed in the United States and Europe, rests on premises that-by their own terms-do not apply in many newer democracies. For example, Jeremy Waldron's case for judicial deference rests on an assumption of well-functioning political institutions,2 and Mark Tushnet's case for popular constitutionalism assumes a robust constitutional culture. 3 A series of dysfunctions in new democracies-vulnerability to authoritarian erosion, defects in party systems and legislative institutions, and an absence of constitutional culture-render these assumptions inapplicable. The key question then becomes: if standard political theory is inapplicable, what is the proper conception of judicial role? New scholarship argues that there is a distinctive "constitutionalism of the Global South," but to date this literature has focused more on a set of problems or topics faced by developing regimes, such as socioeconomic rights or access to justice, rather than on a unifying conception of the judicial role.4This Article aims to fill that gap. Descriptively, it shows that judicial role and constitutional design in new democracies often work offof the premise that democratic institutions should be distrusted, and not just to protect insular minorities but also to carry out majoritarian will. Judges and constitutional drafters in these countries are notably unconcerned with the classic countermajoritarian difficulty or the dilemma of courts imposing on democratic space and taking on legislative roles. This is because they are focused on a different problem: how to make democratic institutions work better. Courts and other non-democratic institutions often see their role within such a regime as dynamic in nature: they aim to improve the performance of political institutions through time.I bring together evidence chiefly from three widely studied countries- Colombia, India, and South Africa-to show how courts have developed tools to protect democracies from erosion from within, to ameliorate defects in different kinds of party systems, and to build up civil society and constitutional cultures. A range of practices in newer democracies can best be understood through a dynamic rather than a traditional conception of judicial role. For example, courts in newer democracies routinely strike down constitutional amendments as being substantively unconstitutional because they view those amendments as a threat to democracy. From a standard theoretical perspective, striking down constitutional amendments is a much more difficult act to justify than ordinary judicial review. As commentators have often noted, declaring a constitutional amendment unconstitutional poses a kind of ultimate countermajoritarian difficulty, because there is no real way for democratic actors to override the decision to strike down the constitutional amendment. …