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Judicial Governance and Democracy in Europe (SpringerBriefs in Law)
by Pablo Castillo-OrtizThis is an Open Access book.Amid the growing debate about models of judicial governance and their relationship to democratic quality, this book offers a systematic and empirical study of this relationship. The book thereby contributes to filling in this gap for the European continent. Taking an interdisciplinary politics and law perspective, and combining empirical and theoretical considerations, the book addresses the important link between democracy and judicial governance. In particular, it provides for three interconnected contributions. First, the book provides for a comprehensive classification of European countries into different models of judicial governance. Second, the book analyses empirically the relationship between the design of judicial governance and the quality of democracy. Third, building on those findings, the book presents policy reflections for the reform and improvement of mechanisms for judicial governance in European countries. The book seeks to refine our knowledge about the relationship between judicial governance and democracy, making an important academic and social contribution. In an era in which many democracies backslide and deconsolidate, it assesses to what extent existing mechanisms for judicial governance have contributed to the stability and quality of democratic systems in which they are implemented. Furthermore, the book puts forward reflections to improve the role of organs for judicial governance in fostering the quality of democracy. Since the book introduces in an accessible form key concepts of Judicial Governance, it will be of interest for the general public as well as academics and students in the fields of Law and Political Science. The book also addresses policy makers, as based on our empirical knowledge about the interaction judicial governance and democracy it puts forward ideas for a design of judicial governance that is more capable of protecting democratic systems of government.
The Judicial House of Lords: 1876-2009
by Louis Blom-Cooper, Brice Dickson and Gavin DrewryThe House of Lords served as the highest court in the UK for over 130 years. In 2009 the new UK Supreme Court took over its judicial functions, closing the doors on one of the most influential legal institutions in the world, and a major chapter in the history of the UK legal system. This volume gathers over 40 leading scholars and practitioners from the UK and beyond to provide a comprehensive history of the House of Lords as a judicial institution, charting its role, working practices, reputation and impact on the law and UK legal system. The book examines the origins of the House's judicial work; the different phases in the court's history; the international reputation and influence of the House in the legal profession; the domestic perception of the House outside the law; and the impact of the House on the UK legal tradition and substantive law. The book offers an invaluable overview of the Judicial House of Lords and a major historical record for the UK legal system now that it has passed into the next chapter in its history.
The Judicial House of Lords: 1876-2009
by Louis Blom-Cooper Qc Brice Dickson Gavin DrewryThe House of Lords served as the highest court in the UK for over 130 years. In 2009 the new UK Supreme Court took over its judicial functions, closing the doors on one of the most influential legal institutions in the world, and a major chapter in the history of the UK legal system. This volume gathers over 40 leading scholars and practitioners from the UK and beyond to provide a comprehensive history of the House of Lords as a judicial institution, charting its role, working practices, reputation and impact on the law and UK legal system. The book examines the origins of the House's judicial work; the different phases in the court's history; the international reputation and influence of the House in the legal profession; the domestic perception of the House outside the law; and the impact of the House on the UK legal tradition and substantive law. The book offers an invaluable overview of the Judicial House of Lords and a major historical record for the UK legal system now that it has passed into the next chapter in its history.
Judicial Independence: Memoirs of a European Judge (Springer Biographies)
by Carl BaudenbacherThis book is about law, but it is not a law book. It is aimed at all interested contemporaries, lawyers and non-lawyers alike. Richly seasoned with personal memories and anecdotes, it offers unique insights into how European courts actually work. It is generally assumed that independence is part and parcel of the role and function of a judge. Nevertheless, European judges sometimes face difficulties in this regard. Owing to their being nominated by a government, their limited term of appointment, and the possibility of being reappointed or not, their judicial independence can be jeopardized. Certain governments have a track record of choosing candidates who they believe they can keep on a leash. When this happens, private parties are at risk of losing out. The EFTA Court is under even more pressure, since the EEA/EFTA states Iceland, Liechtenstein and Norway essentially constitute a pond with one big fish (Norway) and two minnows. For quite some time now, certain Norwegian protagonists have sought to effectively transform the EEA into a bilateral agreement with the EU. This attitude has led to political implications that have affected the author himself. The independence of the EFTA Court is also endangered by the fact that it operates alongside a large sister court, the Court of Justice of the European Union. And yet the EFTA Court has established its own line of jurisprudence and its own judicial style. It has remained faithful to specific EFTA values, such as the belief in free trade and open markets, efficiency, and a modern view of mankind. During the first 24 years of its existence, it has even had an over-proportionate influence on ECJ case law. Since EEA Single Market law is economic law, the importance of economics, an often-overlooked aspect, is also addressed. In closing, the book explores Switzerland’s complicated relationship with, and Britain’s impending departure from, the EU. In this regard, it argues that the EFTA pillar should be expanded into a second European structure under British leadership and with Swiss participation.
Judicial Independence and the American Constitution: A Democratic Paradox
by Martin H. RedishThe Framers of the American Constitution took special pains to ensure that the governing principles of the republic were insulated from the reach of simple majorities. Only super-majoritarian amendments could modify these fundamental constitutional dictates. The Framers established a judicial branch shielded from direct majoritarian political accountability to protect and enforce these constitutional limits. Paradoxically, only a counter-majoritarian judicial branch could ensure the continued vitality of our representational form of government. This important lesson of the paradox of American democracy has been challenged and often ignored by office holders and legal scholars. Judicial Independence and the American Constitution provocatively defends the centrality of these special protections of judicial independence. Martin H. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly protected by the Constitution from direct political accountability: the judicial branch. He uncovers how the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.
Judicial Independence in Transition (Beiträge zum ausländischen öffentlichen Recht und Völkerrecht #233)
by Anja Seibert-FohrStrengthening the rule of law has become a key factor for the transition to democracy and the protection of human rights. Though its significance has materialized in international standard setting, the question of implementation is largely unexplored. This book describes judicial independence as a central aspect of the rule of law in different stages of transition to democracy. The collection of state-specific studies explores the legal situation of judiciaries in twenty states from North America, over Western, Central and South-Eastern Europe to post-Soviet states and engages in a comparative legal analysis. Through a detailed account of the current situation it takes stocks, considers advances in and shortcomings of judicial reform and offers advice for future strategies. The book shows that the implementation of judicial independence requires continuous efforts, not only in countries in transition but also in established democracies which are confronted with ever new challenges.
Judicial Independence Under Threat (Proceedings of the British Academy #250)
by Dimitrios Giannoulopoulos and Yvonne McdermottJudicial independence is increasingly under threat. The rise of populism risks undermining the separation of powers, with some politicians, media outlets and members of the public taking aim at judges, labelling them as part of the establishment and the elite, the 'enemies of the people'. Judicial Independence Under Threat seeks to situate these contemporary challenges to judicial independence in their proper legal, philosophical, political and historical contexts. It brings academic scholars from a variety of disciplines together with judges, politicians and legal professionals and asks what core shared values of our legal and political systems judicial independence seeks to protect, and how threats to that independence can be protected against. What can we learn from comparative, historical, political, philosophical, and legal insights on the separation of powers, and what means can we discover to prevent against challenges to the independence of judges in times of crisis?
Judicial Law-Making in European Constitutional Courts (ISSN)
by Monika Florczak-WThis book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined.The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison.The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
Judicial Law-Making in European Constitutional Courts (ISSN)
by Monika Florczak-Wą TorThis book analyses the specificity of the law-making activity of European constitutional courts. The main hypothesis is that currently constitutional courts are positive legislators whose position in the system of State organs needs to be redefined.The book covers the analysis of the law-making activity of four constitutional courts in Western countries: Germany, Italy, Spain, and France; and six constitutional courts in Central–East European countries: Poland, Hungary, the Czech Republic, Slovak Republic, Latvia, and Bulgaria; as well as two international courts: the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU). The work thus identifies the mutual interactions between national constitutional courts and international tribunals in terms of their law-making activity. The chosen countries include constitutional courts which have been recently captured by populist governments and subordinated to political powers. Therefore, one of the purposes of the book is to identify the change in the law-making activity of those courts and to compare it with the activity of constitutional courts from countries in which democracy is not viewed as being under threat. Written by national experts, each chapter addresses a series of set questions allowing accessible and meaningful comparison.The book will be a valuable resource for students, academics, and policy-makers working in the areas of constitutional law and politics.
Judicial Law-Making in Post-Soviet Russia
by Alexander VereshchaginA novel and incisive investigation of the role of judicial precedents and customs in Russian law, this book examines the trends in the development of judge-made law in Russian civil law since the demise of the Soviet Union. Exploring the interrelated propositions that a certain creative element is intrinsic to the judicial function in modern legal systems, which are normally shaped by both legislators and judges and that the Russian legal system is not an exception to this rule, the author argues that the rejection or acceptance of judge-made law can no longer be sufficient grounds for distinguishing between common law and civil law systems for the purposes of comparative analysis. Divided into six chapters, it covers: the principles applied by judges when interpreting legal acts; analyzing a number of academic writings on this subject the boundaries of the realm of judge-made law and the problem of 'hard cases' and the factors, which make them 'hard' a taxonomy of forms in which Russian courts effectuate their law-creation functions current policies of courts in legal and socio-political matters joint-stock societies and arbitrazh courts. Estimating the degree of creativity within different branches of the Russian judiciary and explaining the difference in the approaches of various courts as well as setting-out proposals as to how the discrepancies in judicial practice can be avoided, Judicial Law-Making in Post-Soviet Russia is invaluable reading for all students of international law, comparative law, legal skills, method and systems and jurisprudence and philosophy of law.
Judicial Law-Making in Post-Soviet Russia
by Alexander VereshchaginA novel and incisive investigation of the role of judicial precedents and customs in Russian law, this book examines the trends in the development of judge-made law in Russian civil law since the demise of the Soviet Union. Exploring the interrelated propositions that a certain creative element is intrinsic to the judicial function in modern legal systems, which are normally shaped by both legislators and judges and that the Russian legal system is not an exception to this rule, the author argues that the rejection or acceptance of judge-made law can no longer be sufficient grounds for distinguishing between common law and civil law systems for the purposes of comparative analysis. Divided into six chapters, it covers: the principles applied by judges when interpreting legal acts; analyzing a number of academic writings on this subject the boundaries of the realm of judge-made law and the problem of 'hard cases' and the factors, which make them 'hard' a taxonomy of forms in which Russian courts effectuate their law-creation functions current policies of courts in legal and socio-political matters joint-stock societies and arbitrazh courts. Estimating the degree of creativity within different branches of the Russian judiciary and explaining the difference in the approaches of various courts as well as setting-out proposals as to how the discrepancies in judicial practice can be avoided, Judicial Law-Making in Post-Soviet Russia is invaluable reading for all students of international law, comparative law, legal skills, method and systems and jurisprudence and philosophy of law.
Judicial Leadership: A New Strategic Approach
by Stephen Hardy Ernest RyderWe live in an era of economic austerity and political uncertainty. This has profound implications for all areas of publicly funded services; the justice system is no exception. During such times, the judiciary must remain steadfast in maintaining their independence irrespective of any funding model. Professor Hardy and Sir Ryder set out a vision for the Justice system that takes a strategic approach to the legal system, explicitly based on national self-interest and commercial effectiveness. They argue that, in striving for such a strategic approach to the justice system, there should not be separate access to justice and business reliance on the Rule of Law, as if they are separate worlds. The authors advocate an approach enabling access to justice to be efficient as well as effective, evidence based and founded on solid analysis of needs and capabilities. This new strategic approach would therefore be to ensure that the Judiciary, as 'one judiciary' is equipped and skilled as proficiently as it possible and as aligned and as effective in its leadership. The authors bring unique expertise to the pursuit of 'one judiciary', carefully and thoroughly analysing how such a system would work in theory and in practice. This revolutionary monograph promises to be a defining text in the field of judicial leadership. It is essential reading for all Judicial Office Holders, legal policy makers, legal practitioners and academics, and for all those with an interest in human resources, business and management, psychology, and law.
Judicial Leadership: A New Strategic Approach
by Ernest Ryder Stephen HardyWe live in an era of economic austerity and political uncertainty. This has profound implications for all areas of publicly funded services; the justice system is no exception. During such times, the judiciary must remain steadfast in maintaining their independence irrespective of any funding model. Professor Hardy and Sir Ryder set out a vision for the Justice system that takes a strategic approach to the legal system, explicitly based on national self-interest and commercial effectiveness. They argue that, in striving for such a strategic approach to the justice system, there should not be separate access to justice and business reliance on the Rule of Law, as if they are separate worlds. The authors advocate an approach enabling access to justice to be efficient as well as effective, evidence based and founded on solid analysis of needs and capabilities. This new strategic approach would therefore be to ensure that the Judiciary, as 'one judiciary' is equipped and skilled as proficiently as it possible and as aligned and as effective in its leadership. The authors bring unique expertise to the pursuit of 'one judiciary', carefully and thoroughly analysing how such a system would work in theory and in practice. This revolutionary monograph promises to be a defining text in the field of judicial leadership. It is essential reading for all Judicial Office Holders, legal policy makers, legal practitioners and academics, and for all those with an interest in human resources, business and management, psychology, and law.
The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore
by Brice Dickson and Conor McCormickThis collection of essays is a tribute to Lord Kerr of Tonaghmore, who died aged 72 on 1 December 2020 after having retired from the UK Supreme Court just two months earlier. Brian Kerr was appointed as a judge of the High Court of Northern Ireland in 1993. He became the Lord Chief Justice of Northern Ireland in 2004 before being elevated to a peerage and appointed as the last Lord of Appeal in Ordinary in June 2009. Four months later, as Lord Kerr, he moved from the Appellate Committee of the House of Lords to the UK Supreme Court where, after exactly 11 years, he concluded his distinguished judicial career as the longest-serving Justice to date. During his career he established an exceptional reputation for independence of thought, fairness and humanitarianism. Lord Kerr's judicial mind has inspired and influenced a significant number of scholars and jurists throughout the UK and beyond. In this book, his unique brand of jurisprudence is examined alongside a catalogue of broader issues in which he displayed a keen interest during his lifetime. The volume includes topical contributions from a range of legal experts in Britain and Ireland. Lord Kerr's particular interest in public law, human rights law, criminal law, and family law is featured prominently, but so too is the importance of his dissenting judgments, some influential jurisprudence of the Judicial Committee of the Privy Council (where he sat on many occasions), the legacy of his influence on the law and legal system of Northern Ireland and the significance of his place in the historical development of judicial roles and responsibilities more generally.
The Judicial Mind: A Festschrift for Lord Kerr of Tonaghmore
This collection of essays is a tribute to Lord Kerr of Tonaghmore, who died aged 72 on 1 December 2020 after having retired from the UK Supreme Court just two months earlier. Brian Kerr was appointed as a judge of the High Court of Northern Ireland in 1993. He became the Lord Chief Justice of Northern Ireland in 2004 before being elevated to a peerage and appointed as the last Lord of Appeal in Ordinary in June 2009. Four months later, as Lord Kerr, he moved from the Appellate Committee of the House of Lords to the UK Supreme Court where, after exactly 11 years, he concluded his distinguished judicial career as the longest-serving Justice to date. During his career he established an exceptional reputation for independence of thought, fairness and humanitarianism. Lord Kerr's judicial mind has inspired and influenced a significant number of scholars and jurists throughout the UK and beyond. In this book, his unique brand of jurisprudence is examined alongside a catalogue of broader issues in which he displayed a keen interest during his lifetime. The volume includes topical contributions from a range of legal experts in Britain and Ireland. Lord Kerr's particular interest in public law, human rights law, criminal law, and family law is featured prominently, but so too is the importance of his dissenting judgments, some influential jurisprudence of the Judicial Committee of the Privy Council (where he sat on many occasions), the legacy of his influence on the law and legal system of Northern Ireland and the significance of his place in the historical development of judicial roles and responsibilities more generally.
Judicial Nominations
by Neal DevinsOn January 22, 1973, the Supreme Court issued its decision in Roe v. Wade. Holding that a woman’s substantive due process right to terminate her pregnancy in the early months outweighed state interests in maternal health and fetal protection, the Court struck down a Texas law permitting abortions only to save the life of the mother. This series is divided into three volumes, with each part containing multiple case studies. Volume One (two books) considers legislative initiatives; Volume Two (two books) reviews executive initiatives; and Volume Three (one book) examines judicial nominations. Abortion funding, clinic access legislation, freedom of choice and human life legislative proposals, and proposed constitutional amendments are considered in Part One. Presidential positions, federal family planning regulation (domestic and international), fetal tissue research, and governmental briefs and arguments in abortion-related Supreme Court litigation are the subject of Part Two.First published in 1995. Routledge is an imprint of Taylor & Francis, an informa company.
Judicial Nominations (Federal Abortion Politics Ser. #Vol. 3)
by Neal Devins Wendy L. WatsonOn January 22, 1973, the Supreme Court issued its decision in Roe v. Wade. Holding that a woman’s substantive due process right to terminate her pregnancy in the early months outweighed state interests in maternal health and fetal protection, the Court struck down a Texas law permitting abortions only to save the life of the mother. This series is divided into three volumes, with each part containing multiple case studies. Volume One (two books) considers legislative initiatives; Volume Two (two books) reviews executive initiatives; and Volume Three (one book) examines judicial nominations. Abortion funding, clinic access legislation, freedom of choice and human life legislative proposals, and proposed constitutional amendments are considered in Part One. Presidential positions, federal family planning regulation (domestic and international), fetal tissue research, and governmental briefs and arguments in abortion-related Supreme Court litigation are the subject of Part Two.First published in 1995. Routledge is an imprint of Taylor & Francis, an informa company.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Judicial Politics in Polarized Times
by Thomas M. KeckWhen the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
The Judicial Politics of Economic Integration: The Andean Court as an Engine of Development
by Osvaldo SaldiasThe Judicial Politics of Economic Integration analyses development strategies and regional integration in the Andean Community (the former Andean Pact), focusing on the establishment of the Andean Court of Justice and its case law, as well as the intellectual underpinnings that made such an impressive reform possible. The court is a transplant taken from the European integration process, and it materializes the visions, expectations, and dreams of the transnational development movement of "integration through law". The book discusses the outcomes of the Court in light of the debates about judicial reform in the process of development and regional integration. Although clearly confirming several earlier claims that "one size does not fit all", Osvaldo Saldias provides new insights into how legal transplants adapt and evolve, and how we can learn much more about legal reform from a project that presumably failed than from successful copies. The Andean Court of Justice is a remarkable example of an institution capable of adapting to political and economic challenges; therefore, in times of a severe European economic crisis we should not forget that we might improve our understanding of European integration by looking at developments in other regions. An interesting new study with an international focus, this book will be a fascinating read for students and scholars of Law and Latin American Studies.
The Judicial Politics of Economic Integration: The Andean Court as an Engine of Development
by Osvaldo SaldiasThe Judicial Politics of Economic Integration analyses development strategies and regional integration in the Andean Community (the former Andean Pact), focusing on the establishment of the Andean Court of Justice and its case law, as well as the intellectual underpinnings that made such an impressive reform possible. The court is a transplant taken from the European integration process, and it materializes the visions, expectations, and dreams of the transnational development movement of "integration through law". The book discusses the outcomes of the Court in light of the debates about judicial reform in the process of development and regional integration. Although clearly confirming several earlier claims that "one size does not fit all", Osvaldo Saldias provides new insights into how legal transplants adapt and evolve, and how we can learn much more about legal reform from a project that presumably failed than from successful copies. The Andean Court of Justice is a remarkable example of an institution capable of adapting to political and economic challenges; therefore, in times of a severe European economic crisis we should not forget that we might improve our understanding of European integration by looking at developments in other regions. An interesting new study with an international focus, this book will be a fascinating read for students and scholars of Law and Latin American Studies.