Judicial Power
How Constitutional Courts Affect Political Transformations

Explores the relationship between the legitimacy, the efficacy, and the decision-making of national and transnational constitutional courts.

Christine Landfried (Edited by)

9781108443098, Cambridge University Press

Paperback / softback, published 2 April 2020

410 pages, 1 table
15.5 x 23 x 2.5 cm, 0.6 kg

'Because of the richness of its perspectives, Landfried's book is a valuable resource for scholars of constitutionalism grappling with this new wave of populism. Because of the quality of its contributions, it will remain one even after current judicial crises have been settled in one way or another.' Johann Laux, International Journal of Constitutional Law

The power of national and transnational constitutional courts to issue binding rulings in interpreting the constitution or an international treaty has been endlessly discussed. What does it mean for democratic governance that non-elected judges influence politics and policies? The authors of Judicial Power - legal scholars, political scientists, and judges - take a fresh look at this problem. To date, research has concentrated on the legitimacy, or the effectiveness, or specific decision-making methods of constitutional courts. By contrast, the authors here explore the relationship among these three factors. This book presents the hypothesis that judicial review allows for a method of reflecting on social integration that differs from political methods, and, precisely because of the difference between judicial and political decision-making, strengthens democratic governance. This hypothesis is tested in case studies on the role of constitutional courts in political transformations, on the methods of these courts, and on transnational judicial interactions.

Introduction Christine Landfried
Part I. Democratic Legitimacy of Judicial Power: 1. Judicial power and democracy Martin M. Shapiro
2. Judicial politics versus ordinary politics: is the constitutional court judge caught in the middle? Michel Rosenfeld
3. Judicialization of politics or politicization of the courts in new democracies? Mary L. Volcansek
4. European judicial appointments reform: a neo-institutional approach Mitchel Lasser
5. The law of democracy and the European Court of human rights Richard H. Pildes
Part II. Democratic Effectiveness of Judicial Power: 6. Constitutional court and politics: the Polish crisis Lech Garlicki
7. Democracy, political crisis, and constitutional jurisdiction: the leading role of the Brazilian Supreme Court Luís Roberto Barroso and Aline Osório
8. Judicial power and European integration: the case of Germany Franz C. Mayer
9. Fundamental rights in Europe after opinion 2/13: the hidden promise of mutual trust Timothy Roes and Bilyana Petkova
Part III. Legitimacy, Effectiveness, and Judicial Methods of Decision-Making: 10. Transnational judicial interactions and the diplomatization of judicial decision-making Gertrude Lübbe-Wolff
11. Judging methods of mediating conflicts: recognizing and accommodating differences in pluralist legal regimes Judith Resnik
12. On the representativeness of constitutional courts: how to strengthen the legitimacy of rights adjudicating courts without undermining their independence Mattias Kumm
13. After the heroes have left the scene: temporality in the study of constitutional court judges Mark Tushnet
Part IV. Judicial Power in Processes of Transformation: 14. What exactly is political about Constitutional Adjudication? Dieter Grimm
15. Populism, constitutional courts, and civil society Andrew Arato
16. Judicial power in processes of transformation Ulrich K. Preuß
17. Neither legal nor illegal: today's operational spaces barely captured in law Saskia Sassen.

Subject Areas: Judicial review [LNDM], Constitutional & administrative law [LND], International courts & procedures [LBHG], Public international law [LBB], Political science & theory [JPA]