Browsing by Subject "Judicial politics"

Now showing 1 - 5 of 5

Constitutional elaboration amid division : court impact on institutional development and minority inclusion in Iraq
(2021-12-03) Moran, Ashley McIlvain; Elkins, Zachary, 1970-; Aucoin, Louis; Brinks, Daniel M.; Jacobsohn, Gary J.; Levinson, Sanford V.; Perry, Jr., H. W.
Iraq's 2005 constitution outlined ambitious plans to build a liberal democracy and inclusive society after decades of autocratic, discriminatory rule. These twin aims produced a range of competing needs—to constrain the executive and maintain institutions strong enough to bind a divided society, to ensure minority representation and prevent social divisions from cementing in politics, and to facilitate both inclusive deliberation and efficient policymaking on urgent issues. Seeking solutions to these diverse needs, constitution drafters adopted an equally diverse set of strategies. These blended accommodative structures that guaranteed minority representation, integrative structures that folded minority interests into a unified polity, and procedural strategies that delayed discussion of critical but contentious aspects of the constitutional order. Given the complex—and often conflicting or ambiguous—arrangements this produced in the constitution, the Iraqi Federal Supreme Court's interpretation of these arrangements has since played a key role in shaping the constitutional order. Iraq's hybrid approach to constitutional design reflects a growing global trend, with countries increasingly combining constitutional strategies once thought competitors. Yet even as hybrid designs have proliferated, there has not been commensurate scholarly attention to such systems as a distinct subtype of constitutional design. This study introduces new theories and measures that capture the full complexity of hybrid design and the Court's critical role in navigating that complexity. Analyzing the Iraqi Federal Supreme Court's 728 decisions and opinions in the first ten years after the constitution's adoption, this study identifies how Court rulings shaped institutional development and minority inclusion in ways both envisioned and unanticipated by the 2005 constitution. The Iraqi experience identifies four unique Court contributions to constitutional development in divided societies after a new constitution's adoption. This study finds the Court was critical to: enforcing constitutional commitments on minority inclusion, elaborating constitutional ambiguity to produce new institutional arrangements that were not achievable in drafting or post-adoption political processes, fostering diversity without cementing divisions, and building unified structures without excluding key societal interests. Iraq's experience with early constitutional elaboration and Court guidance of that process provides new insights for other divided societies in early stages of constitutional transitions.
Democratic governance and the courts : the political sources of the judicialization of public policy in Argentina
(2011-08) Ryan, Daniel Eduardo; Brinks, Daniel M., 1961-; Hunter, Wendy; Madrid, Raul; Perry, H. W.; Werksman, Jacob; Weyland, Kurt
The purpose of this dissertation is to examine under what political conditions public policy issues are likely to become judicialized in Argentina. This study shows that the most widespread theoretical explanation, the loser argument, is too general and does not provide much analytical insight about the relationship between the political context and the judicialization of policy. Meanwhile, other explanations developed by the literature, mainly the politically disadvantaged group and the fragmented legislative power, although theoretically valid, have a limited empirical coverage and cannot fully explain the phenomenon of policy judicialization in Argentina. Taking into account the limitations and contributions of the existing theories, the theoretical argument of this dissertation is predicated upon the idea that there are various, alternative political scenarios under which judicialization is likely to occur. In other words, there is not just one, but several, different political conditions or combinations of conditions that might trigger the involvement of courts in public policy. Within this conceptual framework, the dissertation argues that policy disputes are likely to become judicialized under two political scenarios which have not been considered by the existing literature: first, when the state apparatus is unable to implement or enforce policy goals and mandates already approved by the political branches of government, and second, when the political elites in charge of the executive do not fully support existing policy mandates, and the legislature is too passive or deferential to the government regarding that policy issue. In these types of political contexts, social actors are likely to judicialize their policy claims. To assess these arguments, the dissertation develops a qualitative comparative analysis (QCA) of 13 major policy conflicts that occurred in Argentina during the last two decades, complemented by case studies. As a result of my analysis, I identify three combinations of political conditions that are sufficient to trigger the judicialization of policy in Argentina. Two of these combinations clearly fit with my theoretical argument and expectations about what political scenarios are likely to lead to policy judicialization, while the third combination closely reflects the political disadvantage argument.
Disputing extractivism at the court : elite countermobilization and backlash in a (still) colonial Guatemala
(2021-08-12) Braconnier de León, Ana-Isabel; Brinks, Daniel M., 1961-; Canova, Paola; Cárcamo-Huechante, Luis; Sieder, Rachel
My dissertation examines the process of backlash against the dissident constitutional magistrates and the support structures that aid them in promoting accountability and human rights in Guatemala from 2017 to 2019. While scholars noted that courts took a predominant role in Latin American politics in the last forty years of democratization, less attention has been given to the increasing challenges that courts are facing to remain independent from powerful actors. The theories have some difficulty accounting for a backlash against the courts, because the “strategic” models of judicial behavior predict that vulnerable magistrates in less independent systems are more likely to act in deference to the powerful. The Guatemalan case shows the opposite. In the context of magistrates expected to align with the dominant elites, why did a backlash against the Constitutional Court occur? How did it happen, and what are the implications for the constitutional justice system? I argue that backlash is triggered when the courts produce rulings challenging the “red lines” of the regime—what matters most to the political and economic elites. In Guatemala, the anti-extraction rulings challenged the elites’ core interests based on the extraction of public resources through corruption and natural resources in Indigenous territories. Backlash happened when powerful elites activated judicial advantages to “re-colonize” legal interpretations, coalesced to dismantle dissident magistrates and the support structures, and captured the institutions. My focus sheds light on the persisting role of elites in limiting the scope of accountability and social change through the courts. These limits reveal not only the continuity of a conservative status quo but also the colonial foundations of an extractive regime. I develop my argument through an in-depth qualitative study of four rulings that triggered backlash. The rulings sought to promote the Indigenous right to free, prior, and informed consultation and efforts fighting corruption. In building my theory, I analyze the logistical features of the fieldwork and my position as a local researcher conducting activist research with advocacy organizations. My methods include semi-directed interviews, secondary sources, and ethnographic work. I conclude with a comparative perspective on Latin America, and propose, for the Guatemalan case, to de-concentrate elite power in judicial politics.
High-end demand : markets for legal services and pressure for judicial autonomy in urban China
(2015-05) Kinkel, Jonathan Josef; Brinks, Daniel M., 1961-; Hurst, William, 1975-; Elkins, Zachary; Maclachlan, Patricia; Perry, H.W.
Most scholars of comparative judicial politics suggest that judicial autonomy emerges from various forms of democratic competition or from a need to assuage the concerns of those investing capital in countries controlled by authoritarian regimes. In an authoritarian political system where the Party-State has historically sought to monopolize control over judicial selection and promotion, how can we explain reforms that increase the degree of merit-based competition, the statutory basis of written judicial opinions, the level of court transparency, and overall judicial autonomy in courts? Challenging prevailing theories regarding the relationship between economic development and rule of law, I argue that the particular patterns of local variation in judicial autonomy across urban China can be traced in part to differences in local markets for professional legal services: if qualified, mid-ranking judges can easily quit their jobs and find lucrative local employment as lawyers, court leaders are more likely to strategically reform promotion mechanisms in an attempt to retain these young—yet nonetheless, experienced—judges. These findings are based on nearly 15 months of in-country fieldwork, conducted between 2012-2014, that included 49 interviews with judges across 3 different case study cities: Shanghai, Shenzhen, and Chengdu. Employing the subnational comparative method, this article not only builds theory regarding the emergence of rule of law in authoritarian states, it also offers new empirical detail regarding the promotion, performance evaluation, and behavior of judges in urban China.
Weak review, strong court : judicial institutions and influence in the US and France
(2023-05-05) Blass, Abby (Ph. D in government); Brinks, Daniel M., 1961-; Jacobsohn, Gary; Elkins, Zachary; Theriault, Sean; Perez-Liñan, Aníbal
This dissertation explores differences in the willingness of high court judges to use their authority of constitutional review to participate in national policymaking. Through quantitative and qualitative analysis of judicial decisions invalidating national laws over thirty years in the United States and France, I show how, contrary to conventional wisdom, judges with weaker forms of review in political systems that offer straightforward ways to displace judicial opinions show greater willingness to review and to invalidate national laws, over a broader range of policy domains, than their counterparts with strong form review in fragmented political environments that offer judges the “last word”. Drawing on institutional and strategic insights about judicial decision making, I show that judges perceive and experience the costs of exceeding the tolerance of political actors with the power to curtail their institutional autonomy and authority, and over time they learn to balance the immediate cost of losing a discrete policy battle versus the systemic cost of losing their institutional capacity to contribute to contemporary policy debates. My results show that, counterintuitively, giving judges the ‘last word’ on matters of policy may be counterproductive to the project of judicial empowerment, and the contrast in judicial styles with weak and strong review suggests that scholars must be more nuanced in evaluating judicial power, looking beyond the more confrontational and disruptive interventions of the Supreme Court as the standard model of judicial influence, to the more cooperative and consensual engagement of the French Constitutional Council.